The 1993 Amendments to Florida's Solid Waste Management Act: The Continuing Search for Solutions

Florida State University Law Review Florida State University Law Review

Fall 1993

Article 7

The 1993 Amendments to Florida's Solid Waste Management Act: The 1993 Amendments to Florida's Solid Waste Management Act:

The Continuing Search for Solutions The Continuing Search for Solutions

Brian H. Bibeau

Kristin M. Conroy

Thomas M. DeRose

William D. Preston

Part of the Environmental Law Commons

THE 1993 AMENDMENTS TO FLORIDA'S SOLID WASTE MANAGEMENT ACT: THE CONTINUING SEARCH FOR SOLUTIONS

In response to growing public concern for the problems of waste management, the Florida Legislature passed The Solid Waste Management Act of 1988. Five years later, lawmakers revisited the critical issues underlying solid waste and passed a voluminous package of amendments. This Article summarizes the development of the 1993 Act, its main provisions, its funding sources, and the new rulemaking and regulation which agencies will undertake to implement the amendments. This Article also highlights the various solid waste issues that require additional study and areas in which Floridians may see further solid waste legislation.

TABLE OF CONTENTS

A. Advance Disposal Fee ....................................... 1. Background ............................................... 2. The 1993 Legislation ...................................

a. New Advance Disposal Fee Program ........ b. Exemptions ............................ c. Collection ............................................ d. Consumer Notification .......................... e. Use of Funds ........................................ f. Waste Newsprint Disposal Fees ................ g. Florida Packaging Council ...................... h. Material-Specific ADF Evaluation ............ B. Flow Control ................................................... 1. Flow Control Restrictions ............................ 2. Certification and Registration of Dealers ......... C. Markets for Recycled Materials ........................... D. Toxics in Packaging .......................................... E .Batteries ......................................................... F. Mercury Devices and Lamps ............................... G. Environmental Representations ...........................

533 534 534 534 535 535 535 536 537 537 538 539 540 540 540 541 542 543 545 546 546

H. Hazardous Waste Incinerators ............................ I. Waste-To-Energy Incinerators .............................. J. Agricultural and Trench Burning .......................... K.

Illegal Dumping and Control of Litter and Marine D ebris ............................................................ L. Phosphogypsum Stack Regulation ....................... M. Used Oil ........................................................ N. Definitions and Exemptions ............................... 0. Local Government Impact ................................. Infrastructure Surtax ................................... 1. 2. Local Recycling Goals .................................. 3. Solid Waste Management Grant Program ........ 4. Local Hazardous Waste Collection Grants .......

III. FUNDING AND EXPENDITUREs ..................................... IV. AGENCY RULEMAKnqG AND IMPLEMENTATION ................. A. Historical Perspective ........................................ B. Rulemaking .....................................................

547 550 552

553 553 554 556 558 558 558 559 560 560 562 562 563 569

THE 1993 AMENDMENTS TO FLORIDA'S SOLID WASTE MANAGEMENT ACT: THE CONTINUING SEARCH FOR SOLUTIONS

tremendous

to help solve Florida's

The 1988 Solid Waste Management Act established an ambitious program solid waste problems .... [and] reduce the amount of solid waste that ultimately is sent to landfills and other solid waste disposal Since [1988] ...there have been numerous legislative facilities .... proposals filed annually to amend various aspects of the 1988 law, but a commitment was made to the Department of Environmental Regulation at that time to give the new comprehensive law a chance to work before any major changes would be made to it.' Since its enactment in 1988, the Solid Waste Management Act has enabled Florida to make great progress its solid waste problems. In the three years since the Act's passage, we have been able to identify those areas where improvements are needed. It has become evident ...that changes and refinements must be made to the [A]ct to enable Florida to meet the needs of its residents into the next century.2

toward solving

In 1988, the Legislature turned its attention from the higher profile waste disposal issues related to toxic and hazardous wastes to the more

mundane, but nonetheless serious and escalating, problems of waste management generally. Lawmakers embraced the challenge of finding environmentally sensitive ways to manage the burgeoning tons of garbage, trash, refuse, and other wastes that Florida's residents, industries, mining interests, farmers, ranchers, and government institutions were generating. On the last day of the 1988 Regular Session, The Solid Waste Management Act of 1988 emerged from the Legislature as the first set of comprehensive programs aimed at the mountains of solid waste that our disposable society produces.'

The 1988 Act was an ambitious effort embracing a spectrum of issues: analyzing landfill capacities; predicting future needs and costs; pondering the wisdom of building more waste-to-energy plants; encouraging recycling and volume-reduction; analyzing solid waste generation rates and costs; studying the viability of cogeneration to reduce waste handling and disposal costs; ensuring proper disposal of hazardous, toxic, infectious and biomedical materials; seeking alternative funding mechanisms for solid waste management; and motivating citizens, business and government to support solid waste management solutions.4 The 1988 Act mandated waste minimization, more efficient use of available landfill capacity, enhanced litter control, and greater reliance on recycling.5 The 1988 Act touched the lives of every citizen, business, government, and tourist in Florida.6

Although the 1988 Act was Florida's first comprehensive response to growing volumes of waste, the legislation was bound for reconsideration as Florida's solid waste agenda continued to expand. Failure of the 1988 Act's methods to win universal acceptance also motivated policymakers to focus once again on solid waste. Beginning with the 1989 Regular Session, and in each subsequent session, lawmakers filed bills in both the Florida House of Representatives and the Florida Senate to revise, refine, or repeal various provisions of the 1988 Act, or to augment the legislation with new programs.7 However, the Legislature re-

frained from further revision of the 1988 Act until 1993 because various legislators had promised the then-Department of Environmental Regulation (DER)-now the Department of Environmental Protection (DEP)g-that they would give the Act a chance to work before allowing major revisions.9

Statistics from a 1992 DEP report tell the tale of Florida's solid waste problem: in 1991, the average generation of municipal solid waste (excluding industrial, commercial and agricultural solid waste not destined for municipal landfills) was 8.2 pounds per person per day, or 53,370 tons per day, or 19.5 million tons per year.0 Much of this waste presents special management problems in handling the annual production of: 15 million waste tires; 52 million gallons of used oil; 3 million used refrigerators, stoves and other "white goods"; 821,000 tons of ash from waste-to-energy facilities; nearly 4 million spent lead-acid batteries; more than 50,000 tons of biomedical waste; and 3.2 million tons of construction and demolition debris." Based on anticipated population growth and trends in municipal solid waste generation, DEP estimated that Florida will generate 26 million tons a year of municipal solid waste by the year 2000, and nearly 37 million tons a year by the year 2012.12

I. DEVELOPMENT OF THE ACT

Following the adjournment of the 1991 Regular Session, the House Natural Resources Committee and the Senate Committee on Natural Resources & Conservation undertook a review of the 1988 Act to determine whether new legislative solutions were needed and what they might be. The committees resolved to present their findings and recommendations to their respective houses in time for the 1992 Regular Session.

Following in-depth review of the 1988 Act's effectiveness, both committees filed bills in 1992.1 Neither committee bill passed in the 1992 legislative session.'4 In spite of considerable attention to solid waste management issues in 1991 and 1992, the 1993 Act is the only significant solid waste legislation to emerge from the Capitol since 1988.

During the 1993 Regular Session, lawmakers filed five major solid waste bills in the Senate and two in the House. In the end, House Bill 461 prevailed." Governor Chiles signed House Bill 461 into law on May 12, 1993, and it became Chapter 93-207, Laws of Florida.6

A. Advance Disposal Fee

1. Background

The 1988 Solid Waste Management Act created an Advance Disposal Fee (ADF) program which was scheduled to take effect in Octo-

ber 1992 for containers which were not yet being recycled at a designated rate.17 The 1988 Act provided that the ADF would apply to all cans, bottles, and jars of certain sizes made from plastic, glass, plastic-coated paper, aluminum, and other metals." If containers of a specific material type were not being recycled at a sustained rate of 50% of the quantity of that type sold in Florida, retail stores would impose a one-cent per container fee.19 Under the 1988 Act, consumers would be able to return containers to recycling centers for a refund of the ADF plus the market value of the container's material.20 Excess monies collected from ADFs would go to local governments to support recycling and litter control.2' In 1992, the Legislature amended the ADF program so that the fee would not take effect until July 1, 1993, but otherwise left it as established in 1988.22

2. The 1993 Legislation

a. New Advance Disposal Fee Program

The 1993 Legislature substantially revised the ADF from its 1988 origin, including another change in the effective date to October 1, 1993 for the application of a one-cent fee to many containers sold in Florida.23 The revised ADF applies to all sealed glass, plastic, plastic-coated paper, aluminum or other metal cans, bottles, jars or beverage containers holding from five ounces to one gallon.24

b. Exemptions

The fee has two major exemptions. The first is for containers which DEP determines are being recycled at a sustained rate of at least 50% of the quantity sold in Florida .2 Before July 1 of every year, DEP must determine the sustained recycling rate for each container material type.26 If a material type meets the 500o0 recycling threshold, the ADF

will expire for that type three months later on October 1.27 DEP has determined that both steel and aluminum are being recycled at a sustained rate of more than 50076.

Second, the 1993 Legislature provided market-based incentives for businesses to opt out of the ADF. Individuals or businesses may petition DEP for an exemption from the ADF by certifying one of two occurrences: first, that the container will be among a category that will meet or exceed certain sustained recycling material content rates for the next year;2 or second, that the container material type will be removed from the waste stream in Florida and will be recycled in designated amounts o29 By June 1 of each year, DEP must take final agency action on pending exemption petitions.30 If granted, exemptions will run for two years and holders may renew them by petition if filed at least sixty days before expiration and if applicants can document to DEP that they are still meeting the requirements.3 All applicants who gain exemptions must document to DEP that they have met the goals set forth in their petitions.12 If permit holders fail to meet their goals, they must refund the ADF plus interest.33

c. Collection

One of the major debates over the last several years has been the question of who should collect the ADF: the retailer or the distributor.3" The 1988 Act provided for ADF collection at the retail level." The 1993 Legislature chose to assess the ADF at the distributor level.36 In a transaction between distributors and dealers, the distributors will

collect the ADF .7 If a manufacturer sells ADF containers directly to consumers, the manufacturer must pay the fee." If a dealer receives ADF containers on which fees have not yet been paid, then the dealer must collect the ADF.39

Fee collectors must remit proceeds each month to the Department of Revenue (DOR) for deposit in the Solid Waste Management Trust Fund.40 The Department of Business Regulation (DBR) will administer the ADF on alcoholic beverage containers, rather than DOR.41 The distributor may choose to estimate ADF payments on the basis of cash receipts of all transactions subject to the ADF, pursuant to Department of Revenue rules.42 Dealers or distributors who have paid the ADF on containers which are then exported from Florida may deduct those fees from the amount owed to the State or may apply for a refund if they already have paid the fees to the State.43

d. Consumer Notification

Each dealer offering containers for sale to which an ADF applies must notify consumers of the ADF." The dealer may provide notice in several ways: on the customer cash receipt, by affixing a display, label, or other notice prominently near the containers, or by prominently displaying a notice in the store.45

e. Use of Funds

Another major debate over the past few years has been whether to retain the provisions from the 1988 Act allowing for the return of containers for a refund or to revise the program to allocate the collected

ADF to local government recycling programs.6 The 1993 Legislature deleted the consumer-refund provisions and instead chose to allocate, after subtracting DEP's implementation costs, 30% of ADF proceeds for supplemental grants to counties; 12% for improving recycling markets; 19% to the Surface Water Improvement Trust Fund; 27% to the Sewage Treatment Revolving Loan Fund; and 12% to the Small Community Sewer Construction Assistance Trust Fund.47

f. Waste Newsprint Disposal Fees

Another advance disposal fee imposed by the 1993 Act is the Waste Newsprint Disposal Fee.8 In 1991, paper comprised approximately 33% of Florida's municipal solid waste stream.49 To reduce the amount of newsprint discarded in landfills and to encourage the recycling of newsprint, the 1988 Act ordered each county to separate most of the newspaper from its solid waste stream before disposal.50 For fiscal year 1991, the statewide recycling rate goal for newspaper was 31.7%.51 To help stimulate the market for recycled newsprint and to encourage newspaper recycling, the 1993 Act increased the product waste disposal fee from 10 to 50 cents per ton of newsprint consumed.52 This fee is collected from producers or publishers based upon the total weight of newsprint consumed in their publications." The 1993 Act also increased the existing credit of 10 cents per ton of recycled newsprint used in the publication of products to 50 cents per ton.5 If DEP determines on October 1 of each year until 1999 that newsprint sold within Florida is being recycled at a rate of 50% or more of the quantity sold in the state, the newsprint disposal fee will be reIf the newsprint scinded for the year following that determination." recycling rate is less than 50%, both the disposal fee and the recycled newsprint credits will be increased to $1 per ton, effective January 1 of

the following year.6 If DEP determines on October 1, 1999, and in each successive year, that newsprint sold in Florida is being recycled at a rate of 60%'o or more of the quantity sold, the disposal fee will be rescinded for the following year.57 If the newsprint recycling rate is less than 60076, the disposal fee will be increased to $2 per ton, effective January 1 of the next year, and the recycled newsprint credits will be increased to $2 per ton when the annual aggregate consumption of recycled fiber is at least equal to 30%. 8

To ensure that newsprint consumed in Florida contains sufficient recycled fiber, the Act mandates that recycled fiber be consumed in the following percentages of the total newsprint consumed: 20% in 1994; 25% in 1995; and 30% in 1996 and beyond.59 DEP may adjust .these goals each year to reflect the availability of recycled fiber.w° If producers and publishers fail to meet these goals, the annual aggregate goal will apply individually to each producer and publisher.61 Producers and publishers failing to achieve the mandate will face a fine of $5 per short ton multiplied by the number of tons of recycled-content newsprint representing the shortfall.62 This penalty provision will not apply if the shortfall is due to supply and quality conditions.6a

g. Florida Packaging Council

The 1993 Act created the Florida Packaging Council in DEP to ensure that the recycled material content goals specified in the law are technically sound and achievable.64 The Council consists of twentyfour members from environmental groups, state and local governments, and certain designated industry groups, including the Florida Retail Federation, the Grocery Manufacturers of America, the Society of Plastics Industry, and the Associated Industries of Florida.6 The Governor, the President of the Senate, and the Speaker of the House of Representatives appoint the members to staggered three-year terms.6 The Council must report on each type of packaging material

to the Governor and the Legislature on December 1 annually. The reports must recommend legislation to develop a comprehensive package reduction and market development program and must contain information on each type of packaging material and its recovery rate, recycled content rate, and source reduction rate compared to the national rates.67

h. Material-Specific ADF Evaluation

In consultation with the Center for Solid and Hazardous Waste Management, DEP must evaluate by July 1, 1996 the feasibility and propriety of imposing a material-specific ADF in lieu of the present scheme.6 DEP must make its report to the President of the Senate and the Speaker of the House of Representatives by October 1, 1996.6

B. Flow Control

The term "flow control" refers to the authority of state or local governments to require solid waste generated in the area to be collected by certain entities (usually the local government or its franchisee) and delivered to a certain facility for handling, treatment, recycling or disposal.70 The State, to protect the financial stability of public facilities, has determined that any local government that undertakes resource recovery from solid waste may institute its own flow control ordinance to ensure that the facility receives an adequate quantity of the waste generated within its jurisdiction.7'

In 1992, DER convened a Flow Control Task Force to discuss issues relating to the control and disposition of solid waste and recycled materials.72 During the 1993 Legislative Session, the League of Cities, Association of Counties, and a group of private recyclers and haulers formed the Flow Control Work Group to draft compromise language. These two groups provided recommendations which were incorporated into the 1993 Act.73

1. Flow Control Restrictions

The legislation clarifies that the authority to institute flow control measures does not extend to recovered materials, regardless of whether

they are separated at the point of generation or after collection.74 The 1993 Act further provides that a local government is expressly authorized to enter into

a nonexclusive franchise or to otherwise provide for the collection, transportation, and processing of recovered materials at commercial establishments provided that such franchise or provision does not prohibit a certified recovered materials dealer from entering into a contract with a commercial establishment to purchase, collect, transport, process, or recovered materials ....

source separated

receive

Nevertheless, local governments still may enter into exclusive franchises or otherwise provide for the exclusive collection, transportation or processing of materials recovered from single-family or multi-family residential properties.76 The 1993 Act authorizes local governments to require that commercial establishments source separate their recovered materials at their establishments.7

2. Certification and Registration of Dealers

In 1993, the Legislature also created section 403.7046, Florida Statutes, which imposes a certification requirement for "any person who handles, purchases, receives, recovers, sells, or is an end user of recovered materials .... ,,78 Any person who wishes to deal with recovered materials must provide annual certification to DEP, and the agency must adopt certification rules.79 DEP may by rule exempt certain categories of people, such as those who generate recovered materials or who handle or sell recovered materials incidentally to their normal primary business.80 The legislation requires DEP to appoint a technical advisory committee of up to nine people to help develop certificationrelated rules."

Before conducting business in a jurisdiction, a recovered materials dealer must also register with that local government by providing a copy of its DEP certification.82 This registration is limited to providing the dealer's name, its officers and directors or partners, the company address, evidence of DEP certification, and a statement that recovered materials will be processed at a facility that meets the requirements of the Act.3 Local governments may charge a registration fee equal to its cost of registration,4 and they may establish a process to revoke the registration of a dealer who, "after reasonable notice . .and an opportunity to be heard by an impartial party, has consistently and repeatedly violated state or local laws, ordinances, rules, and regulations.''85 Thus, although the local government does not have a great deal of control over recovered materials dealers, it has the authority to protect against sham recycling.16

C. Markets for Recycled Materials

For Florida's recycling and waste reduction programs to succeed, there must be adequate markets for recycled materials.7 Recognizing the need to develop such markets, the 1993 Legislature looked first to state government. Agencies procuring commodities which cost in excess of a specified threshold amount must award contracts for the purchase of those commodities by competitive sealed bid.8 The 1993 Act requires each state agency to eliminate any procedure or specification that explicitly discriminates against products and materials containing recycled materials.9 In awarding a contract for the purchase of commodities, the state is permitted to allow a 100 price preference to a responsive bidder who certifies that the commodity contains at least the minimum percentage of recycled contentY° The 1993 Act provides that an additional 5076 price preference may be given to a responsive bidder who certifies that the commodity is made of recycled materials recovered in Florida.9' Recycled paper purchased by state agencies

must contain at least 1006 "postconsumer recovered materials."9 The Department of Management Services, Division of Purchasing, must establish goals for state agencies in procuring products with recycled content and postconsumer content,93 and the agencies must report annually to the Division of Purchasing on their procurement of recycled content products and materials.94 State agencies and contractors must buy recycled products and materials when the Division of Purchasing determines that the products or materials are available.95

In addition, the Legislature cr6ated the Recycled Markets Advisory Committee to plan for new market opportunities for recovered materials.9 The Committee was mandated to have set goals by October 1, 1993 and was provided direction to develop and expand recovered material markets.9Y The legislation sets forth specific areas to be considered in developing the plan.9 The Committee must also submit annual reports to the Governor and the Legislature on its progress.99

D. Toxics in Packaging

Since passage of the 1988 Act, public health and environmental concerns about the disposal of solid waste into landfills or incinerators have increased dramatically.'0 Based on those concerns, the Senate and House Natural Resources committees included methods for reducing toxics in packaging in their 1991-92 interim solid waste studies, and the proposals they considered in the 1993 session.'0'

The toxic packaging provisions in the 1993 Act'02 are similar to the Model Toxics Legislation'3 developed by the Source Reduction Council of the Coalition of Northeastern Governors.1°4 Beginning July 1,

1994, the provisions limit the amount of the heavy metals lead, cadmium, mercury and hexavalent chromium permitted in packaging, including intermediate packages and shipping containers, and packaging components.05 After July 1, 1996, packaging may contain only 0.01% of those heavy metals.'06

The 1993 Act exempts some packages and components from its new standards.'°7 Industrial packaging components intended to protect, secure, close, unitize and prevent pilferage of products destined for commercial use are excluded from the definition of packaging component and are therefore not subject to the provisions of the Act.08 In addition, packages and components manufactured before the effective date of the Act and packages containing alcoholic beverages bottled before July 1, 1993, are specifically exempted)°9 Manufacturers that add heavy metals to packages and components to comply with health or safety requirements of federal or state law, or who claim they have no feasible alternatives,"0 are authorized to petition DEP for a two-year exemption for those packages and components."' DEP may renew an exemption for an additional two years.112 Packages and components that would not exceed the heavy metal limits but for the addition of recycled materials are exempt until July 1, 1998.'13

By July 1, 1994, the manufacturer or distributor of a package or component not exempted by the Act must provide to the purchaser of the package or component a certificate of compliance signed by an authorized official of the manufacturing or distributing company.114 If a manufacturer or distributor complies based on one of the exemptions the Act allows, the certificate must state the specific basis for that exemption."5 The public may obtain a copy of the certificate of compliance from the manufacturer or distributor. 116

DEP, in consultation with the Center for Solid and Hazardous Waste Management, will review the effectiveness of the packaging pro-

visions by December 1, 1996, and provide a written report to the Governor and the Legislature."' The report must describe any elements substituted for the specified heavy metals and may recommend additions to the list of restricted toxic substances.,8

E. Batteries

The 1993 Act substantially expands the lead-acid battery provisions of the 1988 Act. 9 Various studies indicating high concentrations of mercury in fish and wildlife in some areas of Florida were a key reason the Legislature developed additional regulations for battery disposal.'2 The new provisions address the perceived mercury problem by: limiting the amount of mercury allowed in alkaline-manganese and zinc-carbon batteries;12' banning certain button dry-cell batteries;1 banning from the mixed solid waste stream dry cell batteries with mercuric-oxide electrodes, rechargeable batteries and products containing those batteries ; 123 establishing systems for the separation of rechargeable and other batteries from the solid waste stream;'24 mandating product changes to facilitate the removal of batteries;'25 and implementing collection of mercuric-oxide and rechargeable batteries by manufacturers, distributors and marketers. 26

In addition, legislators attempted to heighten consumer awareness of the battery disposal ban and recycling initiatives by requiring recycling and disposal information in product instruction manuals.2" They also voted to require battery manufacturers and distributors to inform purchasers of the disposal prohibition and battery return systems.'I Finally, manufacturers and marketers of rechargeable batteries and products powered by the batteries must implement pilot projects for collecting the batteries and related products and must report project results to DEP. 29 These projects may increase the efficiency of the bat-

tery collection and transportation systems ultimately put into effect in Florida.

F. Mercury Devices and Lamps30

Another example of the Legislature's sensitivity to disposal of mercury products was the enactment of provisions to separate from the solid waste stream those electrical products, other than batteries, that release mercury into the environment.3' After July 1, 1994, spent mercury lamps may not knowingly be incinerated in any incinerator, except those operating under state or federal hazardous waste permits.'32 After January 1, 1996, a mercury device may not knowingly be incinerated or disposed of in a landfill.'33 Beginning July 1, 1994, any person operating an industrial or commercial facility that disposes of more than ten spent lamps'34 per month must arrange for disposal of the lamps in permitted, lined landfills or permitted reclamation facilities.135 DEP must organize and coordinate a cooperative, public-private demonstration project to evaluate the feasibility of collecting and recycling mercury devices and spent lamps.36 DEP also must have reported the progress of the demonstration project and have recommended further action to the Governor and the Legislature by January 1, 1994.31

G. Environmental Representations'38

As consumers become increasingly sensitized to environmental issues, product advertising campaigns and product labels have begun to include claims that the products are "green" or environmentally friendly. The 1993 Act attempts to eliminate false, misleading or confusing claims in environmental advertising. Any person who represents in advertising, or on the label or container of a consumer product, that the product is not harmful to or is beneficial to the environment, must maintain records documenting and supporting the validity of the repre-

sentafion. '39Examples of the types of claims that require support are "environmentally friendly," "ecologically sound," "environmentally "photodegradable" and safe," "recyclable," "ozone friendly."'' The section does not apply to recycling instructions on the label or container of a product.'4'

"biodegradable,"

H. Hazardous Waste Incinerators

The Superfund Amendments and Reauthorization Act of 1986 (SARA)'42 mandates that each state demonstrate that it possesses, either alone or with other states, sufficient capacity to treat or dispose of the hazardous waste generated in that state to receive federal funding for contaminated site cleanups under the Superfund program.143 When the Act was passed in 1986, Florida was unable to meet this capacity requirement. 44 The State still lacked sufficient capacity late in 1993.'4

Over the last few years, efforts to address the need for additional hazardous waste treatment and disposal capacity have focused on construction of one or more hazardous waste incinerators in Florida.'4 In 1983, the Legislature directed DER to select a site to construct a multipurpose statewide hazardous waste facility to address the state's need for hazardous waste treatment and disposal capacity.47 Accordingly, the Environmental Regulation Commission selected a site in Union County, and in 1989 the Legislature directed DER to contract with a private firm to construct the facility.'" Despite efforts to lure a private enterprise to create this hazardous waste facility in Union County, no firm has proposed such a project. 149

Also in 1989, the Legislature created the Statewide Multipurpose Hazardous Waste Facility Siting Act,'50 embodying a one-stop permitting process aimed at streamlining the siting and permitting of hazard-

ous waste treatment and disposal facilities. In the early 1990s, efforts to address Florida's need for hazardous ,waste treatment and disposal capacity focused on two projects proposed by competing private firms.'5' Permit applications for both projects were submitted to DER in 1992, but by late 1993 one project was withdrawn and the other still was waiting for a construction permit.52 Both projects met with substantial local opposition from concerned citizens and environmental groups, who alleged, among other issues, that toxic emissions from the proposed hazardous waste incinerators would harm human health and the environment near the incinerators. Opponents were particularly worried about the potential for significant emissions of mercury."3 DEP expressed additional concern that if both of the proposed facilities were built, they would provide substantially more hazardous waste incineration capacity than Florida needed in the early 1990s or even in the future.54

Against this backdrop, the Legislature determined in the 1993 Regular Session that a moratorium should be imposed on all commercial hazardous waste incinerator projects,'55 including those already proposed, that all such facilities should be subject to stringent new permitting criteria, and that DEP should not allow construction of commercial hazardous waste incinerators that would provide more capacity than needed in Florida.'1 The Legislature noted that the longterm, cumulative effects of commercial hazardous waste incinerators on human health and the environment are not adequately known.57 At the same time, waste reduction and recycling programs, changes in the classification and regulation of hazardous waste, continuing technological developments, and reported excess hazardous waste incineration cabacity in other states may significantly influence Florida's capacity

needs in the near future.s' For these reasons, the Legislature established new permitting criteria for all commercial hazardous waste incinerators in Florida, which include a need-evaluation process, and directed DEP to study commercial hazardous waste incineration needs.59 Florida will not issue permits to new commercial hazardous waste incinerators until DEP's study is complete.160

Under the new permitting criteria, every proposed commercial hazardous waste incinerator, including those for which applications have already been filed with DEP, must obtain a certification of need from the Statewide Multipurpose Hazardous Waste Facility Siting Board, comprised of the Governor and Cabinet.6' The Board will evaluate the need for the proposed facility "based upon the best available evidence of existing and projected need and available capacity, as presented by the applicant, and as determined by the study" conducted by DEP under the Act.162 Because the Board cannot determine such need until DEP has concluded its study,63 the requirement effectively imposed an eighteen-month moratorium on the permitting of any commercial hazardous waste incinerator in Florida.

In addition to obtaining a need certification, any proposed commercial hazardous waste incinerator must evaluate and report to DEP the "cumulative impacts upon human health and the environment which would result from toxic air emissions" from the proposed incinerator and any other existing or proposed sources of air emissions near the site of the proposed incinerator.'6 The proposed incinerator cannot knowingly accept for incineration any waste the U.S. Environmental Protection Agency (EPA) classifies as containing organic mercury, and the facility must implement adequate procedures to screen wastes containing organic mercury before incineration.65 Finally, the facility must control air emissions of mercury by incorporating "maximum achievable control technology (MACT) for control of mercury emissions." 6

As noted above, DEP must assess Florida's needs for hazardous waste incineration. This assessment must be completed either by November 1, 1994 or by DEP's deadline to submit a revised hazardous

waste capacity assurance plan to the EPA, whichever occurs sooner.'67 At a minimum, the study must examine all: "[e]xisting and projected sources, amounts and types of hazardous waste in the state for which incineration is an appropriate treatment alternative;"'a current and planned hazardous waste incineration capacity, including that of boilers and industrial furnaces, in Florida and the rest of the country;169 incineration needs in light of recycling and waste reduction programs;170 and any other anticipated impacts from construction of hazardous waste incinerators in Florida.'7' At the conclusion of its study, DEP must report to the Statewide Multipurpose Hazardous Waste Facility Siting Board and the Legislature specifying its findings and recommendations, including proposed changes in state policy, law, or rules for hazardous waste management and "the advisability [of] establishing by statute the maximum capacity for hazardous waste incineration" in Florida.72

I. Waste-To-Energy Incinerators

A waste-to-energy facility burns solid waste at high temperatures, reducing it to fine ash and producing electricity, steam, or other useful energy byproducts. 17 The term excludes any facility that primarily burns fuels other than solid waste.74

In 1991, approximately 17% of Florida's municipal solid waste was burned in fourteen waste-to-energy plants.175 Late in 1991, three new plants went into service and a fifteenth plant, Florida's largest, was under construction in 1993.176 The capacity of the new plants meant that about one-third of all municipal solid waste generated in Florida would be burned as waste-to-energy. 177

Because of reliance on waste-to-energy plants for management of solid waste, the Legislature adopted new criteria for the permitting and siting of waste-to-energy plants to prevent subversion of recycling and waste reduction goals.178 The new criteria require that DEP determine the need for additional facilities and capacity before a new waste-toenergy plant is built or before present capacity is expanded.79 DEP must adopt administrative rules embodying the new criteria. 180

Before DEP may issue a construction permit for a new waste-toenergy plant or for an expansion permit that would significantly increase a plant's capacity, the applicant must show a need for the new capacity which the feasible use of recycling or waste reduction cannot meet.18' The applicant also must show that other waste-to-energy plants within reasonable and economically practical distances do not have sufficient capacity.'82 In addition, the applicant must provide reasonable assurance that the jurisdiction in which the new capacity is planned has a program to separate small-quantity generator and household hazardous waste, mercury devices and mercuric-oxide batteries from the waste stream before incineration.83 The program must be implemented by the time the permitted facility begins operation. 14 The local government also must assure that it will achieve a 30076 waste reduction goal,85 implement a mulching, composting, or other reduction program for yard trash,86 implement programs for procurement of products that meet certain recycled content requirements,'7 and implement programs for the collection and recycling of recovered materials from institutional, commercial, and industrial sources.', Finally, the permittee also must show that the proposed facility will comply with all requirements of the local comprehensive plan89 and applicable local

ordinances,190 and that the facility substantially complies with existing permit or enforcement orders issued by any regulatory agency.'9'

The 1993 Act also requires DEP to fund a pilot project "to evaluate the effectiveness of efforts to reduce emissions from waste-to-energy facilities through front-end separation or waste cleaning programs."'92 The pilot project, to be located in a jurisdiction with a waste-to-energy plant,'93 must evaluate the effectiveness of programs for removing or treating toxic materials found in the waste stream before incineration,94 as well as the effect of such removal programs on air emissions from the waste-to-energy facility.95 The pilot project must be completed by October 1, 1995, and DEP must provide a final report to the Legislature by December 1, 1995.196

J. Agricultural and Trench Burning

Although the 1993 Act imposed stringent new requirements on waste-to-energy and hazardous waste incinerators and on the burning of mercury devices, the Legislature expressly exempted from solid waste permitting requirements certain open burning associated with agriculture.'97 The previous statute exempted any "[d]isposal of solid waste resulting from normal farming operations."''9

The Legislature exempted several types of waste materials produced during "agricultural operations related to growing, harvesting, or maintenance of crops."'99 These wastes, if they cannot be feasibly recycled, may be disposed of by open burning, if the burning will not create a public nuisance, will not violate state or federal ambient air quality standards, and will not otherwise harm human health or the environment. 200

Except as provided in the agricultural exemption,20 however, open burning of solid waste is prohibited. The Act specifically prohibits the

use of air-curtain incinerators and trench burning at solid waste management facilities unless such activities are specifically authorized by DEP in a solid waste management permit.2°2

K.

Illegal Dumping and Control of Litter and Marine Debris

To protect Florida's natural beauty, the 1993 Act mandates the creation of a comprehensive program to combat illegal dumping, litter, and marine debris.203 The Legislature concluded that a program which includes the following will promote the state's economy:2 4 a statewide public awareness and educational campaign coordinated by Keep Florida Beautiful, Inc.; enforcement officers responsible for grassroots education, as well as enforcement of litter and dumping regulations; county-level efforts to combat illegal dumping, litter, and marine debris; a statewide adopt-a-shore program covering beaches, rivers, and lakes; distribution of approved litter and recycling receptacles; and other educational efforts.205

The 1993 Act also establishes a litter reduction goal of 5007o between January 1, 1994 and January 1, 1997.206 DEP must contract for yearly litter surveys, the first of which to be completed by January 1, 1994.207 Along with serving as a baseline for litter and marine debris, the initial survey will include a methodology for measuring the reduction of litter and marine debris.28 Beginning July 1, 1995, DEP must evaluate the annual litter surveys and, if necessary, recommend to the Governor and the Legislature by October 1, 1996 which containers, product packaging or items found in the litter stream should be subject to an ADF.209

L. Phosphogypsum Stack Regulation

Historically, the phosphate industry has processed mined phosphate rock in Florida to facilitate the commercial production of fertilizer products.210 This industrial process of combining sulfuric acid and phosphate rock to convert the rock into fertilizer and other products

[Vol.21:529

continues today."' This process produces a by-product called "phosphogypsum," which consists of calcium sulfate and other materials. Phosphogypsum is typically "stacked" at the site of the processing facility in large open-air mounds covering many acres.212

A somewhat diverse set of DEP rules applies to the regulation of phosphogypsum stacks.213 In addition, other agency programs and local government standards may apply.2'4 Although the 1993 Act requires that the Department develop a specific and separate program to regulate phosphogypsum stack systems, the agency already was involved in its regulation before the Act's passage."' In the early 1990s DER proposed regulations which were finalized and codified in 1993 at chapter 17-673, Florida Administrative Code.216

These rules contain permitting requirements for phosphogypsum stack systems and criteria for their construction, operation, closure, long-term care and financial responsibility.217 Given these standards, the Act's directive had essentially already been met.

The Act requires DEP to charge fees sufficient to cover the costs of reviewing permit applications and other agency activities related to the phosphogypsum program.218 Specifically, DEP must charge an annual registration fee for stacks not yet closed to pay for the Department's review of applications for stack closure or the construction of new stacks, or for deferral of mandatory closure requirements.219 Lastly, the Act limits the total registration fees for each fiscal year and provides a methodology for establishing the annual registration fee.21

M. Used Oil

Like the 1988 Solid Waste Management Act, the 1993 Act again addresses regulation of used oil in Florida.22' Between 1988 and 1993, the

EPA issued management standards that cover all segments of the usedoil recycling system.n2 Various provisions of the 1993 Act seek to conform Florida's used-oil recycling and regulatory program to various components of the EPA program already in place. In doing this, the Act uses the new term "processing" instead of the term "reclaiming.' "223 In addition, the Act deletes the key term "used oil recycling facility.'224 Also, registration requirements have been amended and established for used-oil transporters and transfer facilities, used-oil processors and re-refiners, used-oil burners, and used-oil fuel marketers.225 The Act makes it clear that Florida will continue to have authority to regulate used oil consistent with EPA regulations to avoid duplicating state and federal regulatory programs.2 6 The EPA does not regulate used oil as a hazardous waste, and Florida law makes such regulation optional.227 The 1993 Act also provides that the permit requirements for used-oil management facilities would apply to "processing and re-refining facilities," rather than to recycling facilities under the 1988 Act.22s This change is potentially significant because of the new and broad meaning of the term "processing" and due to the elimination of the term "used oil recycling facility" as noted above.29 Now, "[e]ach person who intends to operate, modify, or close a used oil processing facility [must] obtain an operation or closure permit from the [D]epartment prior to operating, modifying, or closing the facility.230 However, the 1993 Act still provides for certain used-oil permitting exemptions.23'

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N. Definitions and Exemptions

As with any new environmental law covering complex subjects such as solid and hazardous waste management, it is important to define key terms. Under the 1993 Act, even the basic term "solid waste" was not immune from legislative tinkering. Under the new law, the term was amended to include "sludge unregulated under the federal Clean Water Act or Clean Air Act, sludge from a waste treatment works, water supply treatment plant, or air pollution control facility .... -212 Dropped from the list of materials previously considered solid waste were yard trash, clean debris, white goods, ashes and sludge.233 However, these materials do not escape regulation because the Act moves them into the category of "special wastes.'34 The terms that identify the breadth of solid waste regulation also were modified. "Solid waste '235 management" now includes "closure and long-term maintenance. .A "solid waste management facility" encompasses a "materials recovery facility" but does not include "recovered materials processing facilities which meet the requirements of s. 403.7046(4), [Florida Statutes,] except the portion ...if any, that is used for the management of solid waste.' '236 To avoid the stigma or purported linkage with true hazardous waste, the Act substitutes "biomedical" for "biohazardous," while leaving the accompanying definition almost completely unaltered.237 Further, the Act amends the term "construction and demolition debris" to include debris from sites remote to the construction or demolition project.238

In defining terms, the Legislature continued the 1988 Act's intent to foster the recycling and recovery of materials that would otherwise become solid waste. The Act redefines "recovered materials'239 and adds new subsections defining "pelletized paper waste" and "source separated" materials.2m "Materials recovery facility" now means "a solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for use as a fuel or soil amendment, or any combination of such materials.''41 This type of

operation is commonly termed a "dirty MRF" because it can produce both recyclable materials and solid waste, which requires management and disposal.42 Also, the Act creates the term "recovered materials processing facility" which means "a facility engaged solely in the storage, processing, resale, or reuse of recovered materials."24 In contrast to the "dirty MRF," a recovered materials processing facility is known as a "clean MRF" because it handles only recyclable or recovered materials which generate only incidental solid wastes.244

In adopting its definitions, the Legislature prohibited any county or municipality from adopting definitions that conflict with those in the Act.2A5

Perhaps the most apparent expression of the Legislature's intent that recycling continue was the addition of this statement after the definition of solid waste: "Recovered materials as defined in [section] 403.703(7) are not solid waste.'"2

The Act also makes clear that the solid waste laws do not cover "recovered materials processing facilities" provided certain criteria are met.Y7 These criteria specify that a facility must demonstrate that a majority of the recovered materials were sold, used or reused within one year; the products or by-products of processing operations must not present a threat of environmental contamination exceeding applicable Department standards; the recovered materials must not constitute hazardous waste; and, new in the 1993 Act, the facility must be registered under new provisions and procedures specified in section 403.7046, Florida Statutes.248

Additionally, the statute creates a new exemption for the category of "industrial by-products" if a majority of such materials are demonstrated to be sold, used or reused within one year; the industrial byproducts do not present a threat of environmental contamination exceeding Department standards; and the industrial by-products are not hazardous wastes.249 The term "industrial by-products," however, is not defined. Therefore, agencies implementing this and other provi-

sions of the Act are likely to address the scope of the new solid waste exemption when future amendments to present solid waste rules are considered.

0. Local Government Impact

1.

Infrastructure Surtax

The 1993 Act gave local governments more flexibility in financing the closure of landfills by amending section 212.055, Florida Statutes,251 to allow local governments to use revenue from the Discretionary Local Government Infrastructure Surtax to finance the closure of county or municipal landfills that are closed or under DEP orders to close.252 In addition, although local governments may not use the tax for operational expenses, counties with a population smaller than 50,000 and that are under a DEP order to close a landfill may use tax proceeds or attendant interest for long-term maintenance costs associated with closure.253

2. Local Recycling Goals

Under the 1988 Act, county solid waste management and recycling programs had to meet the municipal solid waste volume reduction goal of at least 3007o by the end of 1994.214 The 1988 Act required that the programs seek to recover a majority of newspaper, aluminum cans, glass and plastic bottles.2"5 The 1993 Act adds steel cans to this list"( and also requires counties to cooperate with the private sector in considering plans for composting or mulching organic materials that would otherwise be dumped in a landfill.257

The 1988 Act provided that yard trash, white goods, construction and demolition debris and waste tires could not contribute to more

than one-half of the 30% reduction goal.258 The 1993 Act provides alternatives to that limitation. One such alternative applies to counties that are special districts created under chapter 67-764, Laws of Florida. Those districts may meet an alternate goal of reducing their Class I municipal solid waste at the same rate as the twenty most populous counties.259 Another exemption is for counties using pelletized paper waste as a supplemental fuel in permitted boilers, or using yard trash in innovative programs such as producing alternative clean-burning fuel if the county also has implemented a yard trash mulching or cornposting program.260 Finally, the 1993 Act provides an alternative to the 30% waste reduction goal for counties with fewer than 50,000 residents.26' Those counties are allowed to provide residents an "opportuin lieu of achieving the 3007o reduction goal,262 which nity to recycle" means they must provide a system for separating and collecting recyclable materials at a solid waste management facility or for collecting source-separated recyclables.263 The counties also must provide public education on recycling.2 A county choosing this alternative must have notified DEP by October 1, 1993 and have described its plan for meeting these requirements .265

3. Solid Waste Management Grant Program

Under the 1993 Act, grants of up to $50,000 are available for small counties, doubling the $25,000 available under the 1988 Act.6 The Act also increases the county population eligibility requirements for the grants from 30,000 to 50,000, and extends the period of eligibility from 1993 to 1996.267 The waste-reduction goals and requirements discussed above are important because the 1993 Act requires DEP to consider a local government's progress in achieving them when determining the amount of grant money to appropriate to the local government.M DEP may reduce or eliminate grants based upon a local government's

progress in meeting the reduction goals,269 its progress in procuring products made with recycled materials, in complying with rules relating to full-cost accounting, or in meeting any other state requirement for solid waste management.170

Each eligible county or municipality receiving a grant must submit an annual report to DEP describing the government's programs and performance.27' The legislation requires the local government to demonstrate that the grant money will provide recycling both for singlefamily and multi-family dwellings .272

4. Local Hazardous Waste Collection Grants

In 1988, the Legislature established a grant program for local governments that wish to provide a local or regional hazardous waste collection center.73 To promote local hazardous waste collection, the 1993 Legislature added a financial incentive to the existing local government grant programs. Now, a local hazardous waste collection center grantee may receive a grant if it provides an amnesty day in a neighboring county that does not have a permanent collection center.274 The financial lure amounts to an additional grant of up to $35,000 with maximums of $25,000 for reimbursement and $10,000 to the host local government.27 The 1993 Act gives DEP power to establish an additional local project grant program of up to $50,000 for "unique projects that improve the collection and lower the incidence of improper management of conditionally exempt or household hazardous waste.' '276

Along with creating and revising programs in the 1993 Act, the Legislature also appropriated substantial new funding and authorized new personnel for the Department of Environmental Protection and the Department of Revenue to implement the 1993 amendments. Most of

the fiscal year 1993-94 funds were allocated from the Solid Waste Management Trust Fund (SWMTF), which the 1988 Act created.277

The Legislature appropriated $100,000 to DEP from the SWMTF for a pilot project "to evaluate the effectiveness of efforts to reduce [air] emissions from waste-to-energy facilities through front-end separation or waste cleaning programs."278

It also appropriated funds to implement recycling programs under the 1993 amendments. The Department of Management Services (DMS) received $300,000 from the SWMTF to contract for a technical study to establish thresholds for recycled content in products DMS purchases for the State.279 The 1993 Act specifies a minimum list of materials to be studied,2 10 and DMS must report its recommendations to the Legislature by October 1, 1994.281 The Legislature also appropriated $300,000 from the SWMTF to the Department of Commerce for first-year activities of the Recycled Markets Advisory Committee.282

DEP also received $1.3 million from the SWMTF to implement various litter and marine debris control programs addressed in the 1993 Act.23 The allocation earmarks $200,000 for the baseline litter survey the Center For Solid and Hazardous Waste Management;2 by $500,000 for local government litter control and prevention in conjunction with the Recycling and Education Grants program;2 5 $100,000 to Keep Florida Beautiful, Inc. for grants to community programs for marine debris and litter control;26 and another $500,000 to Keep Florida Beautiful, Inc. for its statewide marine debris and litter control 7 program.21

The Legislature appropriated $590,000 from the Operating Trust Fund and authorized the creation of eight new staff positions at DEP to implement the new regulations covering phosphogypsum stack systems.2ss The 1993 Act also includes an appropriation of $880,000 from the SWMTF to the Department of Health and Rehabilitative Services (HRS) to implement the new and revised regulatory programs governing biomedical waste packaging, treatment, storage and disposal.28 DEP will receive $500,000 from the SWMTF for the needs and capacity study for hazardous waste incinerator permitting in Florida.29°

The largest appropriations under the 1993 Act relate to implementation of the advance disposal fee to encourage container recycling. The Legislature appropriated $750,000 from the SWMTF and authorized fifteen new positions at DEP for implementation of the disposal fee.291 In addition, lawmakers appropriated $2,557,553 from the Administrative Trust Fund and authorized 105 new positions at the Department of Revenue for disposal fee operations.292

A. Historical Perspective

After enactment of the 1988 Florida Solid Waste Management Act,293 DER began rulemaking to implement the Act's ambitious provisions and only concluded its work in March 1993, literally on the eve of the 1993 Act's passage. During that time, DER promulgated rules pertaining to the management of biohazardous waste;294 construction and demolition debris;29 degradable plastics;296 solid waste combustor

ash;297 solid waste compost;29 used oil;299 local government grants;3°° full-cost accounting;3"' financial responsibility for landfill closure and maintenance;302 landfill operator training;03 and procedural requirements for Florida's pending advance disposal fee.3°4 The final act of rulemaking in March 1993 pertained to the permitting and management of phosphogypsum stack systems.305

Perhaps the most significant solid waste-related rule overhauled between 1988 and 1993 was chapter 17-701, Florida Administrative Code. The intent of this far-reaching rule was to establish standards for the construction, operation, and closure of solid waste management facilities to minimize their threat to public health and the environment.36 While rulemaking was proceeding on many of the other solid wasterelated rules cited above, the Department appointed a technical advisory committee to provide advice on detailed standards and criteria contained in the facilities management rule.307 After three years of work, numerous drafts and rewrites, several meetings of the advisory committee, and opportunities for public comment on proposed rules, the Florida Environmental Regulation Commission3°0 adopted a major restructuring of chapter 17-701, Florida Administrative Code, on December 17, 1992. The rule took effect on January 6, 1993.

B. Rulemaking

Not to be outdone by the 1988 Legislature, the drafters of the 1993 Act made certain the executive branch would have plenty of opportunities to adopt rules under the Act. Notwithstanding the January 1993 effective date of new chapter 17-701, Florida Administrative Code, DEP has already proposed further revisions for that chapter to make

changes required under the 1993 Act,30 and to conform Florida rules to EPA solid waste-related regulations.10 These new amendments were scheduled to take effect in 1993.311

DEP and other agencies also will promulgate other significant rules under the Act. Consistent with the Act's focus on recycling and reuse, all state agencies are encouraged to review and revise procurement procedures and specifications for products containing recycled and postconsumer content, and the Department of Management Services has responsibility to develop postconsumer and recycled content goals for agency purchases.12 State agencies also may consider "life-cycle costing"31 when evaluating bids on products that contain recycled materials. The Department of Management Services must develop evaluation criteria for these bids, and the rules must consider warranty periods for products and the comparative expected service life relative to product cost.314 Lastly, as an additional incentive for state purchase of goods with recycled content, the Department may propose rules creating price preferences to responsive bidders offering products or materials containing recycled content and postconsumer waste.1 Under existing rules, up to a 10% price preference may be granted to a bidder that certifies its products or materials contain at least the minimum percentage of recycled content.16 The 1993 Act also extends this same percentage price preference to bidders certifying that their products contain postconsumer material.3" Additionally, rules may establish a further 507o price preference for those certifying that their products are made of materials recovered in Florida.38 A Department of Manage-

ment Services rule will measure the price preference on a sliding scale, commensurate with the certified amount of recycled content and content from products recycled in Florida.19 The rule will take effect after October 31, 1994.320

DEP and DOR will promulgate other rules as needed to implement the major changes to the advance disposal fee.2' In addition, the heads of both agencies have specific authority to adopt emergency rules on this subject pursuant to Florida's Administrative Procedures Act, section 120.54(9), Florida Statutes.3 2 DEP expected to make significant amendments to its advance disposal fee rules codified under chapter 17-714, Florida Administrative Code, by January 1994.323 DEP planned to promulgate rules on the new categories of "Recovered Materials" and "Industrial By-Products," which constitute exemptions from the solid waste laws under certain conditions. These rules will address certification of and reporting by persons who handle, purchase, receive, recover, sell, or are end users of recovered materials.3 2 To help develop these rules, the Department must appoint a technical advisory committee comprised of representatives of groups and associations related to the recovered material industry.32 The rules will require information on the amount and types of recovered materials that registrants handle, and the amount of any solid waste that facilities generate, their disposal sites, and identification of the transporter handling such solid waste.26 These rules will be assigned to chapter 17-722, Florida Administrative Code, and DEP hopes to finish adoption by February 1994.327 Lastly, DEP also will propose rules specifying and defining the standards and criteria applicable to the exemption of industrial by-products from solid waste regulation.32

DEP also must propose rules to implement the provisions on packages or packaging components that may include concentrations of "toxic" metals such as lead, cadmium, mercury and hexavalent chromium.329 These rules will be cited in new chapter 17-723, Florida Administrative Code, proposed for adoption by March 1994.330

Since 1988, agencies have promulgated specific rules to deal with special types of solid waste streams. In response to the 1993 Act, rulemaking will again address these areas. DEP and HRS had already begun a program of regulating the generation and management of "bioliazardous" waste,33' but the 1993 amendments require that both agencies amend those rules to change the term "biohazardous waste" to "biomedical waste."'332 The Legislature mandated this change because various members of the medical community sought to reduce public anxiety and confusion surrounding the term "hazardous" when associated with medical waste.333 Accordingly, definition amendments will be promulgated for chapter 17-712, Florida Administrative Code.334

DEP also will promulgate rule amendments on waste tire processing and management,333 and on waste newsprint.336 In recognition of the fluctuating markets for waste newsprint, the Legislature authorized DEP to adjust the recycled-fiber consumption goals each year to reflect the actual availability of recycled newsprint fiber in the Southeast.337 DEP also will address the processing and management of used oil to reflect statutory changes.338

Additionally, the Legislature specifically authorized DEP to adopt rules to implement the phosphogypsum stack system regulatory program summarized above.339 DEP had already adopted rules establishing construction design criteria for new or expanded phosphogypsum stacks and prescribing permit standards for operation, long-term care requirements, closure, and financial responsibility requirements for phosphogypsum stacks.314 The Department developed these rules under its general rulemaking authority. The rules took effect during the legislative deliberations on House Bill 461.341 However, to implement the Act's provisions establishing annual registration fees for existing phosphogypsum stacks, DEP must adopt additional rules to allow contin-

ued operation of stacks that have not reached the end of their useful life if the operator can show that: the system is neither violating nor is expected to violate applicable Department water quality standards, or the owner will correct violations to comply with applicable standards by March 25, 2001.342 Since DEP could not collect registration fees from companies operating phosphogypsum stacks until this rule was finalized, DEP gave this topic attention shortly after passage of the 1993 Act. Specifically, it was the first rule proposed for adoption under the Act and the Florida Environmental Regulation Commission approved it on June 17, 1993. New section 17-673.650, Florida Administrative Code, titled "Closure of Unlined Systems" took effect on July 19, 1993.343

DEP also will propose new rules for the management of mercury devices and lamps.3" As part of that effort, DEP has held an initial meeting to plan for a demonstration project to evaluate the feasibility of collecting and recycling mercury containing devices and spent lamps.345 After July 1, 1994 the secretary may prohibit within certain regions the disposal in mixed solid waste streams of such a device purchased for use by a government agency or industrial facility if the secretary determines that sufficient capacity exists to recycle mercury devices generated in Florida.346 Correspondingly, after the same date, DEP may mandate that mercury devices and lamps generated within designated regions be disposed of at appropriately permitted reclamation facilities.47 However, before adopting that rule, DEP must first determine that those facilities are both reasonably available and afford sufficient recycling capacity.348 DEP hopes to finalize rules on this subject by September 1994.349 Rules may also be proposed to further implement the Act's provisions on alkaline-manganese and zinc-carbon batteries.30 However, due to the specificity of the legislative language on this subject, rulemaking may not occur on the subject.35

DEP rulemaking also will address the subject of waste burning. Waste-to-energy incinerators, as noted above,352 will be subject to new review requirements pertaining to facility capacity in Florida.53 DEP must initiate rulemaking to incorporate specified legislative criteria into its permit review process for this type of facility5.34 These criteria will be included in a new chapter 17-705, Florida Administrative Code which the Department anticipates finalizing by June 1994. Also, DEP may promulgate rules to implement the permitting and certification requirements for commercial hazardous waste incinerators.5

Since passage of the 1988 Act, sanitary landfill operators have been required to complete an operator training course pursuant to chapter 17-703, Florida Administrative Code. The 1993 Act requires that after July 1, 1994, operators of waste-to-energy facilities, biomedical waste incinerators or mobile soil thermal treatment facilities also meet these requirements.36 DEP anticipated finalizing this rule by late 1993.3

The 1993 Act clarifies DEP's general authority to enact rules on the management and disposal of solid waste in Florida by providing that rules promulgated under such authority may apply to solid waste generated in or out of Florida as long as requirements on in-state solid waste disposal are not based on the out-of-state origin of the waste and conform to applicable provisions of law.5 DEP will propose amendments to existing chapter 17-731, Florida Administrative Code, pertaining to regional and individual county hazardous waste management assessments, by January 1994.159 Lastly, DEP also anticipated proposing rules to amend existing programs for solid waste grants3'6 and hazardous waste collection centers.16t These regulatory amendments should have been in place by early 1994.362

Among other groups that must respond to the 1993 Act, the Florida Highway Beautification Council must ensure that its rules for evaluat-

ing grant applications consider contributions by any highway beautification project in preventing litter.363 Also, local governments may establish reasonable regulations governing the standing and stopping on any public road by commercial vehicles used solely for collecting solid waste, recyclable materials, or recovered materials on any public road. 164

In passing House Bill 461, the Legislature clearly acknowledged that the Solid Waste Management Act of 1988 had ignited public awareness of Florida's solid waste problems and at the same time began to grapple with mounting waste issues .365 The 1993 Act takes the approach that practical and cost-effective solutions to growing mountains of waste must come from further cooperation among government, the private sector, and the public.3"6 The 1993 amendments to the Solid Waste Management Act of 1988 made mid-course corrections to refine programs, resolve ambiguities, and fill gaps in the Legislature's comprehensive strategy for solid waste management.

In 1988, the authors of this Article identified a potential "Achilles' in Florida's solid waste management strategy.67 They foresaw a heel" roadblock of administrative litigation resulting from the increased environmental consciousness of Floridians, the "ready availability of Florida's Administrative Procedures [sic] Act to challenge or dispute controversial agency actions," and the increasing cry of "Not In My Back Yard.'368 The authors also noted that "the most significant gap in the new law [was] the lack of attention given to the key issue of siting and permitting a solid waste management facility.369

In spite of considerable progress toward encouraging recycling, reducing waste, promoting conservation, and ensuring that solid and hazardous waste facilities use the best technology available to protect human health and the environment, Florida has yet to achieve a balanced and fully integrated waste management program. The State has not yet developed a coherent program for siting and permitting solid waste management facilities, and the potential roadblock to progress

still threatens an integrated solution, and in some cases already has impeded implementation of solutions.170

By including numerous studies and pilot projects in the 1993 Act, the Legislature recognized that solutions to many problems have yet to be clearly or coherently identified, or molded into workable programs. The incineration issue is one example of a program that requires further refinement. The public concern over mercury and other air emissions has resulted in stringent new requirements on waste-to-energy incinerators and to a moratorium on permitting or construction of hazardous waste incinerators in Florida. However, the moratorium added a minimum of eighteen months to the development of adequate capacity for treatment and disposal of hazardous wastes generated in Florida. This moratorium delays Florida's ability to demonstrate to the EPA that it possesses capacity to treat and dispose of hazardous waste, which imperils Superfund payments for cleaning up contaminated sites.37"' Although Florida knows it must find solutions to these and other issues, the 1993 Act does not contain those solutions.

While the economic downturn of the early 1990s has slowed Florida's population growth,372 a recovery in the mid-1990s likely will escalate population growth, perhaps to new highs. Correspondingly, it will become increasingly vital to solve Florida's solid and hazardous waste management problems. While passage of the 1993 Act was a large step on the path to a balanced and fully integrated waste management strategy, Florida needs further legislation to cope with the products of our "disposable society."

--- FOOTNOTES ---

BRLt.N H. BIBEAU, KRISTIN M. CONROY, THOMAS M. DERoSE, & WILLIAM D. PRESTON

I. DEVELOPMENT OF Tim ACT ........................................ II. KEY PROVISIONS OF THE ACT .....................................

'0

V. CONCLUSION ...........................................................

BRIAN H. BIBEAU,* THOMAS M. DEROSE,** WILLIAM D. PRESTON*** AND KRISTIN M. CONROY****

* Partner, Hopping Boyd Green & Sams, Tallahassee, Florida; B.A., 1964, Florida State University; J.D., 1968, Duke University. Mr. Bibeau has lobbied environmental issues on behalf of various business interests during the past 14 legislative sessions.

** Partner, Hopping Boyd Green & Sams, Tallahassee, Florida; B.A., 1976, Bucknell University; J.D., 1979, National Law Center of George Washington University; LL.M., 1983, Tulane University School of Law. Mr. DeRose is a former Assistant Regional Counsel for the United States Environmental Protection Agency in Atlanta, Georgia.

*** Partner, Hopping Boyd Green & Sams, Tallahassee, Florida; B.S., 1969, Rochester Institute of Technology; J.D., 1975, Florida State University. Mr. Preston is a past Staff Director of the Florida Senate Natural Resources & Conservation Committee.

Associate Attorney, Hopping Boyd Green & Sams, Tallahassee, Florida; B.A., 1988,

****

University of Notre Dame; J.D., 1991, Florida State University.

The authors wish to express their appreciation to Mr. Robert A. Manning, a third year student at University of Tennessee College of Law and to Ms. Janyce Dawkins, a third year student at Florida State University College of Law, for their help researching various provisions of this complex legislation and in preparing this Article.

I.

STAFF OF FLA. S. COMM. ON NAT. RESOURCES & CONSER., A REPORT ON THE REVIEW OF 1988 SOLID WASTE MANAGEMENT ACT 1 (Dec. 1991) (on file with comm.) [hereinafter 1991 SENATE REPORT]. 2.

Id. at 13.

3. Ch. 88-130, 1988 Fla. Laws 367; see generally William D. Preston & Thomas M. De-

Rose, The 1988 Solid Waste Management Act-Facing Up to the "Garbage" Component of Florida's Burgeoning Growth, 16 FLA. ST. U. L. REv. 597 (1988).

4. 5. 6. 7.

1991 SENATE REPORT, supra note 1, at 4-5; Ch. 88-130, 1988 Fla. Laws 367, 370-71. 1991 SENATE REPORT, supra note 1, at 2. Id. See Fla. HB 538 (1989) (Beverage Container/Refund Values); Fla. HB 1095 (1989) (Solid Waste/Degradable Materials); Fla. HB 990 (1989) (Environmental Regulation); Fla. HB 1337 (1989) (Food Packaging/Polystyrene Foam); Fla. H.R. Comm. on Fin. & Tax'n; Fla. H.R. Comm. on Envtl. Reg., PCB 1003 (1990) (Hazardous Waste Grant. Info. Program); Fla. HB 1649 (1990) (Hazardous Materials); Fla. H.R. Comm. on Envtl. Reg., PCB 3065 (1990) (Environmental Regulation); Fla. SB 2650 (1990) (Solid Waste Collection & Disposal); Fla. SB 2294 (1990) (Solid Waste Landfills/Permits); Fla. SB 1618 (1990) (Local Pollution Control Programs); Fla.

SB 1182 (1990) (Solid Waste Incineration Facility); Fla. SB 1174 (1991) (Solid Waste Management/Recycling); Fla. SB 1248 (199 1) (Solid Waste Disposal Facilities); Fla. HB 437 (199 1) (Solid Waste Disposal Facilities); Fla. HB 1913 (1991) (Waste Newsprint Disposal Fee); Fla. H.R. Comm. on Nat. Resources, PCB 2049 (1991) (Recycling Program Proceeds).

8.

In July 1993, the Department of Environmental Regulation merged with the Department

of Natural Resources, becoming the Department of Environmental Protection.

1991 SENATE REPORT, supra note 1, at 1.

9. 10. BUREAU OF SOLID AND HAZARDOUs WASTE, DEP'T OF ENVTL. REG., SOtID WASTE MANAGEMENT IN FLORDA: 1991 ANNUAL REPORT 1, 1-15 (Sept. 1992) [hereinafter 1991 DER ANNUAL REPORT]. 11. 12. Id.; see also Notes from William Hinkley, Chief, Bureau of Solid and Hazardous Waste, Dep't of Envtl. Reg., at the Fla. Chamber of Commerce Environmental Permitting Short Course, Course C: Solid Waste Management Overview and Update (July 14, 1993) (on file with authors).

Id. at2.

iVol. 21:529

II. KEY PROVISIONS OF THE ACT

13. The Senate Natural Resources & Conservation Committee conducted four public workshops in 1991: June 12, 1991; July 17, 1991; Aug. 20, 1991; and Sept. 24, 1991 (Hearing notices are on file with comm.).

In the 1992 Regular Session, the House Natural Resources Committee introduced House Bill 2473 and introduced House Bill 327-H during Special Session H. Both bills passed the House, but INFORMATION, 1992 ROULAR SESSION, died in the Senate. FLA. LEoss., FINAL LEGISLATIVE BILL HISTORY OF HOUSE BIns at 350, HB 2473. FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1992 SPECIAL SESSION H, HISTORY OF HOUSE BIS at 847, HB 327-H.

In the Senate, the Natural Resources & Conservation Committee introduced Senate Bill 962 in the 1992 Regular Session and introduced Senate Bill 46-H during Special Session H. While Senate Bill 962 made it to the Senate floor, it died on the calendar. Senate Bill 46-H died in the Senate Appropriations Committee. FLA. LEIs., FINAL LEGISLATIVE BILL INFORMATION, 1992 REGULAR SESSION, HISTORY OF SENATE BInLS at 97, SB 962. FLA. LEGIS., FINAL LEGISLATIVE BILL INFOnRATION, 1992 SPECtAL SESSION H, HISTORY OF SENATE BILS at 814, SB 46-H.

14. 15. During the 1993 Regular Session, five major solid waste bills were filed in the Senate and

two were filed in the House. Only House Bill 461 would emerge for approval by the Governor.

Senate Bill 462 died in the Senate Appropriations Committee; Senate Bills 464 and 978 died on the Senate calendar; Senate Bills 952 and 1904 were passed by the Senate, but died in messages to the House. FLA. LEGoS., FINAL LEOISL.ATVE BILL INFORMATION, 1993 REGAR. SESSION, HISTORY OF SENATE BELLS at 60, SB 462; at 88, SB 978; at 87, SB 952; at 141, SB 1904.

House Bill 2241 died in the House Natural Resources Committee. Id., 1993 Regular Session,

History of House Bills at 315, HB 2241.

16. House Bill 461 emerged with amendments from the House Natural Resources and the Governmental Operations Committees before the full House passed the measure on March 31, 1993. The Senate amended the bill before passing it and sending it back to the House on the final day of the session, April 2, 1993. Before adjournment, the House concurred with 25 of the Senate's amendments, refused to concur on two others, asked the Senate to recede from those two, passed the bill as amended, and sent it back to the Senate. The Senate receded and passed the House bill as amended. FLA. LEGIS., FINAL LEGISLATIVE BIL INFORMIAnON, 1993 RGILAR SFssIGN, HISTORY OF HousE BILLS at 199-200, HB 461.

The measure became law on May 12, 1993. Ch. 93-207, § 76, 1993 Fla. Laws 1976, 2065.

17. See FLA. STAT. § 403.7197 (Supp. 1988); see also Preston and DeRose, supra note 3, at

FLA. STAT. §403.7197 (Supp. 1988); see also Preston and DeRose, supra note 3, at 619. FLA. STAT. §§ 403.7197(2), (3)(a) (Supp. 1988).

618-19. 18. 19. 20. Id. § 403.7197(6). 21. 22. Ch. 92-327, § 1, 1992 Fla. Laws 3289, 3289 (amending FLA. STAT. § 403.7197(2) (1991 . 23. Ch. 93-207, § 32, 1993 Fla. Laws 1976, 2022 (amending FLA. STAT. § 403.7197 (Supp.

1992), to be codified at FLA. STAr. § 403.7197(6)(a .

Id. (to be codified at FLA. STAr. § 403.7197(2)(b .

24. 25. Ch. 93-207, § 32, 1993 Fla. Laws 1976, 2022 (amending FLA. STAT. § 403.7197(3) (Supp.

1992), to be codified at FLA. STAT. § 403.7197(4 .

26. Id.

27. 28.

Id. Id. (to be codified at FLA. STAT. § 403.7197(5)(b)(i . The sustained recycled material content rates are as follows: for glass containers, it must be 35% from July 1, 1994 to Jan. 1, 1998 and 50% beginning Jan. 1, 1998; and for plastic containers it must be 25%. "Sustained recycled material content rate" is defined as "the average total recycled material content used in a container or category of containers, divided by the total material content of the container or category of containers, expressed as a percentage, for a period of at least 12 consecutive months." Id. (to be codified at FLA. STAT. § 403.7197(2)(i .

29. 30. 31. 32. 33. 34.

Id. (to be codified at FLA. STAT. § 403.7197(5)(b)(2 . Id. (to be codified at FLA. STAT. § 403.7197(5)(c),(d . Id. Id. Id. Interview with Mitchell J. Rubin, Staff Dir., Fla. H.R. Majority Office (July 10, 1992)

(notes on file with authors) [hereinafter Rubin Interview]. FxA. STAT. § 403.7197(3)(a) (Supp. 1988).

35. 36. Ch. 93-207, § 32, 1993 Fla. Laws 1976, 2022 (amending FLA. STAT. § 403.7197 (Supp.

1988), to be codified at FLA. STAT. § 403.7197(6)(a .

37.

Id. "Dealer" means a person who sells containers to consumers and includes retailers and operators of vending machines. The term does not include a common carrier in the conduct of interstate passenger service who sells, offers for sale, or distributes to its passengers containers, the contents of which are consumed on the premises. Id. § 32, 1993 Fla. Laws at 2023 (amending FLA. STAT. § 403.7197(2)(d) (Supp. 1992 .

"'Distributor' means any person who sells or otherwise provides containers to a dealer in this state. The term does not include amanufacturer, [sic] but does include any alcoholic beverage distributor." Id. (amending FLA. STAT. § 403.7197(2)(f) (Supp. 1992 .

38. 39. 40. 41. 42. 43. 44. 45,

Id. Id. Id. (to be codified at FLA. STAT. § 403.7197(6)(c . Id. (to be codified at FLA. STAT. § 403.7197(12 . Id. (to be codified at FLA. STAT. § 403.7197(7)(c . Id. (to be codified at FLA. STAT. § 403.7107(6)(f . Id. (to be codified at FLA. STAT. § 403.7197(7)(b . Id.

46. Rubin Interview, supra note 34. 47. Ch. 93-207, § 32, 1993 Fla. Laws 1976, 2023 (to be codified at FLA. STAT. § 403.719(10 . 48. 49.

Id. § 31, 1993 Fla. Laws at 2020 (amending FLA. STAT. § 403.7195 (1988 . 1991 DER ANNUAL RfEPORT, supra note 10, at 2; Staff of Fla. H.R. Comm. on Nat. Resources, CS for HB 461 (1993) Staff Analysis 3 (final May 11, 1993) (on file with comm.) [hereinafter CS for HB 461 Staff Analysis].

50. FLA. STAT. § 403.706(2)(b) (Supp. 1988). 51. CS for HB 461 Staff Analysis, supra note 49, at 3. 52. Ch. 93-207, § 31, 1993 Fla. Laws 1976, 2020 (amending FLA. STAT. § 403.7195(1) (1988 . 53. 54. 55.

Id. Id. (amending FLA. STAT. § 403.7195(2) (1988 . Id. (amending FLA. STAT. § 403.7195(3) (1988 .

Id. § 31, 1993 Fla. Laws at 2021 (to be codified at FLA. STAT. § 403.7195(4 . Id.

56. Id. 57. 58. 59. Id. (to be codified at FLA. STAT. § 403.7195(9)(a . 60. Id. (to be codified at FLA. STAT. § 403.7195(9)(b . 61. 62.

Id. (to be codified at FLA. STAT. § 403.7195(11 . Id. (to be codified at FLA. STAT. § 403.7195(12 . A short ton weighs 2000 pounds. WEBS-

TER'S NEw INTERNATIONAL DICTIONARY 1399 (3d ed. 1986).

63. Ch. 93-207, § 31, 1993 Fla. Laws 1976, 2020 (to be codified at FLA. STAT. §

403.7195(12 .

64. 65. 66.

Id. §34, 1993 Fla. Laws at 2030 (to be codified at FLA. STAT. § 403.7199(i . Id. (to be codified at FLA. STAT. § 403.7199(a)-(c . Id. (to be codified at FLA. STAT. § 403.7199(1)(a)-(d .

Id. (to be codified at FLA. STAT. § 403.7199(3 . Id. § 33, 1993 Fla. Laws at 2030. Id.

67. 68. 69. 70. See CS for HB 461 Staff Analysis, supra note 49, at 7. 71. 72. See CS for HB 461 Staff Analysis, supra note 49, at 15. 73.

See FLA. STAT. § 403.713 (1991).

Id. § 12, 1993 Fla. Laws at 1993 (to be codified at FLA. STAT. § 403.7046(3)(d (emphasis

74. Ch. 93-207, § 23, 1993 Fla. Laws 1976, 2008 (amending FLA. STAT. § 403.713(2) (1991 . 75. added). 76. 77.

Id. Id. (to be codified at FLA. STAT. § 403.7046(3)(a .

"Source separated" means the recovered materials are separated from solid waste where the recovered materials and solid waste are generated. The term does not require that various types of recovered materials be separated from each other and recognizes de minimis solid waste, in accordance with industry standards and practices, may be included in the recovery material.

Id. § 8, 1993 Fla. Laws at 1990 (to be codified at FLA. STAT. § 403.703(44 .

78. 79. 80. 81.

Id. § 12, 1993 Fla. Laws at 1993 (to be codified at FLA. STAT. § 403.7046). Id. Id. Id. The committee must include, among others, representatives of the Florida Association of Counties, the Florida League of Cities, the Florida Recyclers Association, and the Florida Chapter of the National Solid Waste Management Association. Id.

.

Id. (to be codified at FLA. STAT. § 403.7046(3)(b . Id. Id. Id. § 12, 1993 Fla. Laws at 2003 (to be codified at FLA. STAT. § 403.7046(3)(c . Id. See CS for HB 461 Staff Analysis, supra note 49, at 5. FLA. STAT. § 287.057 (Supp. 1992).

82. 83. 84. 85. 86. 87. 88. 89. Ch. 93-207, § 4, 1993 Fla. Laws 1976, 1981 (amending FLA. STAT. § 287.045 (Supp.

1992), to be codified at FLA. STAT. § 287.045(1)(b .

90. FLA. STAT. § 287.045(5) (1991). 91. Ch. 93-207, § 4, 1993 Fla. Laws 1976, 1981 (to be codified at FLA. STAT. § 287.045(5 .

Id. (to be codified at FLA. STAT. § 287.045(6 . Id. (to be codified at FLA. STAT. § 287.045(2)(b . Id. (to be codified at FLA. STAT. § 287.045( 1 . Id. (to be codified at FLA. STAT. § 287.045(10 .

92. 93. 94. 95. 96. Id. § 5, 1993 Fla. Laws at 1984 (to be codified at FLA. STAT. § 288.1185(1 . The Committee will, consist of 12 members, but ad hoc committees may be appointed to study particular issues. Id. (to be codified at FiA. STAT. § 288.1185(2)(a),(f .

97. Id. (to be codified at FLA. STAT. § 288.1185(4)(a . Id. (to be codified at FLA. STAT. § 288.1185(4)(b . 98. 99. Id. (to be codified at FLA. STAT. § 288.1185(5 . 100. CS for HB 461 Staff Analysis, supra note 49, at 8. 101.. Id. 102. Ch. 93-207, § 28, 1993 Fla. Laws 1976, 2013 (to be codified at FiA. STAT. § 403.7191). 103.

NfODEL Toxics LEGISLATION (Coalition of Northeastern Governors, Source Reduction

Council, 1989) (on file with authors).

104. The Council members include representatives of nine Northeastern states, various indus-

tries and non-profit organizations.

105. Ch. 93-207, § 28, 1993 Fla. Laws 1976, 2013 (to be codified at FLA. STAT. § 403.7191(3 . Id. (to be codified at FLA. STAT. § 403.7191(3)(c . 106. Id. (to be codified at FLA. STAT. § 403.7191(4 . 107. Id. (to be codified at FLA. STAT. § 403.7191(2)(d . 108. 109. Id. (to be codified at FLA. STAT. § 403.7191(4)(a . 110. The Act provides that "a use for which there is no feasible alternative is one in which the use of the regulated substance is essential for the protection, safe handling, or function of the contents of the package." Id. (to be codified at FLA. STAT. § 403.7191(4)(b .

Id. Id. (to be codified at FLA. STAT. § 403.7191(4)(c .

111. Id. 112. 113. 114. Id. (to be codified at FLA. STAT. § 403.7191(5 . 115. Id. 116.

Id. (to be codified at FLA. STAT. § 403.7191(6 .

Id. (to be codified at FLA. STAT. § 403.7191(8 . Id. Id. § 29, 1993 Fla. Laws at 2016 (to be codified at FLA. STAT. § 403.7192). 1991 DER AmNUAL REPORT, supra note 1, at 10.

117. 118. 119. 120. 121. Ch. 93-207, § 29, 1993 Fla. Laws 1976, 2016 (to be codified at FLA. STAT. §

403.7192(2)(a), (b .

Id. (to be codified at FLA. STAT. § 403.7192(2)(d . 122. Id. (to be codified at FLA. STAT. § 403.7192(3)(a), (b . 123. Id. (to be codified at FLA. STAT. § 403.7192(3)(c . 124. Id. (to be codified at FLA. STAT. § 403.7192(4)(a), (b . 125. Id. (to be codified at FLA. STAT. § 403.7192(6 . 126. 127. See id. (to be codified at FLA. STAT. § 403.7192(4)(d . 128. 129.

Id. (to be codified at FLA. STAT. § 403.7192(6)(b . Id. (to be codified at FLA. STAT. § 430.7192(7)(a), (b .

Id. (to be codified at FLA. STAT. § 403.7186). Id. Id. § 55, 1993 Fla. Laws at 2051 (to be codified at FLA. STAT. § 403.7186(3 . Id. (to be codified at FLA. STAT. § 403.7186(2 .

130. 131. 132. 133. 134. A spent lamp is a "lamp for which mercury is required for its operation that has been used and removed from service and that is to be discarded." Id. (to be codified at FLA. STAT. § 403.7186(1)(e .

135. 136. 137. 138.

Id. (to be codified at FLA. STAT. § 403.7186(4)(a . Id. § 55, 1993 Fla. Laws at 2053 (to be codified at FLA. STAT. § 403.7186(9)(a . Id. Id. § 30, 1993 Fla. Laws 1976, 2019 (to be codified at FLA. STAT. § 403.7193).

Id. (to be codified at FLA. STAT. § 403.7193(1 . Id.

139. 140. 141. Id. 142. 143. 144. See DIv. OF WASTE MANAGEMENT, DEP'T OF ENVTL. REG., CAPACITY ASSURANCE PLAN 87

42 U.S.C. § 9601-9675 (1988). 42 U.S.C. § 9604(c)(9) (1989).

(Oct. 17, 1989; amended Apr. 20, 1990) (on file with authors).

145. Telephone interview with William Hinkley, Chief, Bureau of Solid and Hazardous Waste, Dep't of Envtl. Protection (Oct. 18, 1993) (notes on file with authors) [hereinafter Hinkley Interview]. 146. 147. Ch. 83-310, § 37, 1983 Fla. Laws 1822, 1850. 148. Ch. 89-285, § 3, 1989 Fla. Laws 1722, 1723 (amending ch. 83-310, § 37, 1983 Fla. Laws

1822, 1850).

149. Hinkley Interview, supra note 145. 150. F.A. STAT. §§ 403.78-.7893 (1991).

151. The two projects were Florida First Processors in Polk County and Waste Tech in Madison County. Waste Tech sought to use the Statewide Multipurpose Hazardous Waste Facility Siting Act to obtain the authority for its project.

152. Hinkley Interview, supra note 145. Waste Tech withdrew its application to build an incinerator in Madison County and delivered letters to county residents announcing the decision. Michael Browning, Incinerator Plan Is Dead, But Serious Divisions Live On, TALLAHASSEE DEMOCRAT, Oct. 14, 1993, at B12.

153.

FLA. DEP'T OF ENVTL. REG., MERCURY EussIONs TO THE ATMOSPHERE IN FLORIDA, Final

Report 2.1-1 to 2.1 -5 (Aug. 1992); 1991 SENATE REPORT, supra note I, at 10.

154. No Need for This Polk Incinerator, TAMPA TRiu., Jan. 28, 1993, at A8; Bill Rufty, Sides Ready for Battle on Hazardous- Waste Incinerators, THE LEDGER (Lakeland, Fla.), Feb. 24, 1993, at B3.

155. A "commercial hazardous waste incinerator"

is an incinerator that accepts waste generated off-site. Ch. 93-207, § 57, 1993 Fla. Laws 1976, 2056 (to be codified at FLA. STAT. § 403.7895(2 .

156. 157.

Id. (to be codified at FLA. STAT. § 403.7895)(1 . Id.

158. 159. 160. 161. 162. 163. 164. 165. 166.

Id. Id. (to be codified at FLA. STAT. § 403.7895(5 . Id. (to be codified at FLA. STAT. § 403.7895(3)(d . Id. (to be codified at FLA. STAT. § 403.7895(3)(a . Id. (to be codified at FLA. STAT. § 403.7895(3)(b . Id. (to be codified at FLA. STAT. § 403.7895(3)(d . Id. (to be codified at FLA. STAT. § 403.7895(4)(a . Id. (to be codified at FLA. STAT. § 403.7895(4)(b . Id. (to be codified at FLA. STAT. § 403.7895(4)(b)(2 .

Id. (to be codified at FLA. STAT. § 403.7895(5)(c)(1 . Id. (to be codified at FLA. STAT. § 403.7895(5)(c)(2), (3 .

167. Id. (to be codified at FLA. STAT. § 403.7895(5)(a . 168. 169. 170. Id. (to be codified at FLA. STAT. § 403.7895(5)(c)(4 . 171. Id. (to be codified at FLA. STAT. § 403.7895(5)(c)(5 . 172. Id. (to be codified at FLA. STAT. § 403.7895(5)(d . 173.

Id. § 56, 1993 Fla. Laws at 2053 (to be codified at FLA. STAT. § 403.7061(4 The statute defines a waste-to-energy facility as one that uses "an enclosed device using controlled combustion to thermally break down solid, liquid, or gaseous combustible solid waste to an ash residue that contains little or no combustible material and that produces electricity, steam, or other energy as a result." Id.

174.

Id. Also excluded from this definition are facilities that burn, either alone or with other fuels, the following materials: vegetative, agricultural or silvicultural wastes; bagasse such as sugarcane or grape waste; clean dry wood; methane or other landfill gas; wood fuel from construction or demolition debris; or waste tires. Id.

175. 176. 177.

1991 DER ANNuAL REPORT, supra note 10, at 3-4. Id. Id.

178. Ch. 93-207, § 56, 1993 Fla. Laws 1976, 2053 (to be codified at FLA. STAT. § 403.7061(2),

(3 .

179. 180.

Id. Id. (to be codified at FLA. STAT. § 403.7061(2 . See infra notes 335-36 and accompany-

ing text for discussion of waste-burning capacity and attendant rulemaking.

181. Ch. 93-207, § 56, 1993 Fla. Laws 1976, 2053 (to be codified at FLA. STAT. §

403.7061(3)(a .

182.

Id. (to be codified at FLA. STAT. § 403.7061(3)(b . This limitation does not apply to

permit applications or modifications filed as of Mar. 1, 1993. id. Id. (to be codified at FLA. STAT. § 403.7061(e .

183. 184. Id. 185. 186. 187. 188. 189.

Id. (to be codified at FLA. STAT. § 403.7061(3)(c . Id. (to be codified at FLA. STAT. § 403.7061(3)(d . Id. (to be codified at FLA. STAT. § 403.7061(3)(f . Id. FLA. STAT. §§ 163.3161-.3242 (1991).

190. Ch. 93-207, § 56, 1993 Fla. Laws 1976, 2053 (to be codified at FLA. STAT. §

403.7061(3)(h .

191. 192. 193.

194. 195. 196. 197.

Id. (to be codified at FLA. STAY. § 403.7061(3)(i . Id. (to be codified at FLA. STAT. § 403.7061(5)(a . Id. (to be codified at FLA. STAT. § 403.7061(5)(a)(1 . Id. (to be codified at FLA. STAT. § 403.7061(5)(a)(2 . Id. (to be codified at FLA. STAT. § 403.7061(5)(a)(3 . Id. (to be codified at FLA. STAT. § 403.7061(5)(b . Id. § 17, 1993 Fla. Laws at 1998 (amending FLA. STAT. § 403.707(2)(f) (1991 . FLA. STAT. § 403.707(2)(f) (1991).

198. 199. Ch. 93-207, § 17, 1993 Fla. Laws 1976, 1988 (amending FLA. STAT. § 403.7065)(2)(f) (1991 . These materials are polyethylene agricultural plastic; damaged, unsalvageable, untreated wood pallets; and packaging that cannot be recycled. Id.

200. Id. 201.

FLA. STAT. § 403.707(6)(c) (1991).

202. Ch. 93-207, § 17, 1993 Fla. Laws 1976, 1998 (amending FLA. STAT. § 403.707(6)(c)

Id. § 35, 1993 Fla. Laws at 2032 (to be codified at FLA. STAT. § 403.41315).

(1991 . 203. 204. Id. 205. 206. 207. 208. 209. 210. FLORIDA PHOSPHATE COUNCIL, PHOSPHATE FEEDS You 3 (available from Florida Phos-

Id. (to be codified at FLA. STAT. § 403.41315). Id. § 39, 1993 Fla. Laws at 2035 (to be codified at FLA. STAT. § 403.4131(8 . Id. § 39, 1993 Fla. Laws at 2039 (to be codified at FLA. STAT. § 403.4131(9 . Id. Id. § 39, 1993 Fla. Laws at 2038 (to be codified at FLA. STAT. § 403.4131(10 .

phate Council).

211. Id. at 1,6-8. 212. Memorandum from Carol Browner, Secretary, Dep't of Envtl. Reg., to Envtl. Reg.

Comm'n (Dec. 16, 1992) (phosphogypsum management) (on file with authors).

213. Each of these programs is addressed under a separate agency rule. See FLA. ADieN. CODE ANN. r. 17-302 (May 1993) (surface water); id. at r. 17-520 (Sept. 1992) (ground water); id. at r. 17-672 (Nov. 1990) (dam construction); id. at r. 17-701 (Oct. 1990) (solid waste).

214. See id. at ch. 16C-16 (May 1987) (Phosphate Mine Reclamation). 215. Ch. 93-207, §62, 1993 Fla. Laws 1976, 2059 (to be codified at FLA. STAT. § 403.4154 . 216. FLA. ADMIN. CODE ANN. ch. 17-673 (July 1993) (adopted March 25, 1993). 217.

See id. at r. 17-673.320 (July 1993); id. at r. 17-673.340 (Apr. 1993); id. at r. 17-673.400; id. at r. 17-673.500; id. at r. 17-673.600; id. at r. 17-673.610; id. at r. 17-673.620; id. at r. 17673.630.

218. Ch. 93-207, § 62, 1993 Fla. Laws 1976, 2059 (to be codified at FLA. STAT. §

403.4154(2)(a .

219. 220. 221.

Id. Id. § 62, 1993 Fla. Laws at 2059-60 (to be codified at FLA. STAT. § 403.4154(3 . "Used oil" means "any oil which has been refined from crude oil or synthetic oil and, as

a result of use, storage, or handling, has become contaminated and unsuitable for its original purpose due to the presence of physical or chemical impurities or loss of original properties." Id. § 46, 1993 Fla. Laws at 2046 (amending FLA. SrAT. § 403.75(7) (1991 .

57 Fed. Reg. 41,566, 41,612-26 (1992) (to be codified at 40 C.F.R. § 279).

Id. (amending FIA. STAT. § 403.75(8) (1991 . Id. § 48, 1993 Fla. Laws at 2047 (amending FLA. STAT. § 403.754) (1991 .

222. 223. Ch. 93-207, § 46, 1993 Fla. Laws 1976, 2046 (amending FLA. STAT. § 403.75(4) (1991 . 224. 225. 226. Florida will continue to be more stringent in reporting and registration requirements. Florida may be more stringent in the management and disposal of used oil filters as well. Telephone interview with Raoul Clarke, Environmental Administrator, Bureau of Solid and Hazardous Waste, Fla. Dep't of Envtl. Protection (July 15, 1993) (notes on file with authors).

227. See 57 Fed. Reg. 41,566 (1992); see FLA. STAT. § 403.7545 (1991). 228. Ch. 93-207, § 51, 1993 Fla. Laws 1976, 2048 (amending FLA. STAT. § 403.769 (1991 . 229. See id. § 46, 1993 Fla. Laws at 2046 (amending FLA. STAT. § 403.75 (1991 . 230. Id. § 51, 1993 Fla. Laws at 2048 (amending FLA. STAT. § 403.769(1) (1991 . 231. Permits are not required for burning used oil as a fuel provided there is a valid Department air permit in effect for the facility and the facility burns oil in accordance with applicable EPA regulations, local government regulations, and the requirements of its Department air permit. Id. (amending FLA. STAT. § 403.769(3) (1991 . Additionally, permits are not required for use of used oil for the floatation of phosphate rock; however, other federal or state used-oil rules apply. Id. (amending FLA. STAT. § 403.769(4) (1991 .

232. Id. § 8, 1993 Fla. Laws at 1988 (amending FLA. STAT. § 403.703(13) (1991 . 233. 234. Id. (amending FLA. STAT. § 403.703(34) (1991 . Id. (amending FLA. STAT. § 403.703(8) (1991 . 235. 236. Id. (amending FLA. STAT. § 403.703(10) (1991 . 237. See id. (amending FLA. STAT. § 403.703(39) (1991 . 238. 239. 240.

Id. (amending FLA. STAT. § 403.703(17) (1991 . Id. (amending FLA. STAT. § 403.703(7) (1991 . Id. § 8, 1993 Fla. Laws at 1990 (to be codified at FLA. STAT. § 403.703(43),(44 . See

supra note 77 and accompanying text for a brief discussion of "source separated."

241. Ch. 93-207, § 8, 1993 Fla. Laws 1976, 1988 (to be codified at FLA. STAT. § 403.703(40 .

242. Telephone interview with Mary Jean Yon, Administrator of Solid Waste Section, Dep't

of Envtl. Protection (Oct. 4, 1993) (notes on file with authors) [hereinafter Yon Interview].

243. Ch. 93-207, § 8, 1993 Fla. Laws 1976, 1988 (to be codified at FLA. STAT. § 403.703(41 . 244. Yon Interview, supra note 242. 245. 246.

Id. § 9, 1993 Fla. Laws at 1990 (to be codified at FLA. STAT. § 403.703 1). Id. § 8, 1993 Fla. Laws at 1988 (amending FLA. STAT. 403.703(13) (1991 ; "'Recovered materials' means those materials which have known recycling potential, can be feasibly recycled, and have been diverted or removed from the solid waste stream for sale, use, or reuse by separation, collection, or processing." FLA. StAT. § 403.703(7) (1991).

247. Ch. 93-207, § 8, 1993 Fla. Laws 1976, 1990 (to be codified at FLA. STAT. § 403.703(41 . 248. 249.

Id. § 11, 1993 Fla. Laws at 1991 (amending FLA. STAT. § 403.7045(l)(f) (1991 . Id. (to be codified at FLA. STAT. § 403.7045(l)(g .

0 1

250. Yon Interview, supra note 242. 251. Ch. 93-207, § 3, 1993 Fla. Laws 1976, 1980 (amending FLA. STAT. § 212.055(d) (1991 . County governments may submit to referendum the question of imposing a discretionary sales tax of 0.5% or 1% of up to 15 years. FLA. STAT. § 212.055(2) (1991). Tax proceeds would finance infrastructure improvements and land acquisition for public recreation, conservation, or protection of natural resources. Id. § 212.055(2)(d).

Id. § 3, 1993 Fla. Laws at 1981 (amending FLA. STAT. § 212.055(d) (1991 .

252. Ch. 93-207, § 3, 1993 Fla. Laws 1976, 1980 (amending FLA. STAT. § 212.055(d) (1991 . 253. 254. See FLA. STAT. § 403.706(4) (1991); see also Preston and DeRose, supra note 3, at 607. 255. FLA. STAT. § 403.706(2)(b) (1991); see also Preston & DeRose, supra note 3, at 607. 256. See ch. 93-207, § 15, 1993 Fla. Laws 1976, 1995 (amending FLA. STAT. § 403.706(2)(b)

(1991 . 257.

Id. (to be codified at FLA. STAT. § 403.706(2)(d .

FLA. STAT. § 403.706(4) (1991).

258. 259. Ch. 93-207, § 15, 1993 Fla. Laws 1976, 1995 (amending FLA. SrAT. § 403.706(4)(a) (1991 . "Class I municipal solid waste" is municipal solid waste other than yard trash, white goods, construction and demolition debris, and waste tires. Id. (amending FLA. STAT. § 403.706 (1991 . 260. 261.

Id. (to be codified at FLA. STAT. § 403.706(4)(b . Id. (to be codified at FLA. STAT. § 403.706(4)(d . Id. Id. Id. Id. Id. § 21, 1993 Fla. Laws at 2005 (amending FLA. STAT. § 403.7095(7) (1991 . Id. § 21, 1993 Fla. Laws at 2007 (amending FLA. STAT. § 403.7095(7) (1991 . Id. § 21, 1993 Fla. Laws at 2005 (amending FLA. STAT. § 403.7095(4) (1991 .

262. 263. 264. 265. 266. 267. 268.

II1. FUNDING AND EXPENDITURES

269. See supra notes 25-33, 48-63, 254-65 and accompanying text for discussions of waste-

reduction goals.

270. Ch. 93-207, § 21, 1993 Fla. Laws 1976, 2005 (to be codified at FLA. STAT. §

403.7095(4)(e) (1991 .

See FLA. STAT. § 403.7095(6) (1991).

271. 272. Ch. 93-207, § 21, 1993 Fla. Laws 1976, 2005 (amending FLA. STAT. § 403.7095(6)(f)

(1991 .

273. FLA. STAT. § 403.7265(4) (1991). 274. Ch. 93-207, § 45, 1993 Fla. Laws 1976, 2044 (to be codified at FLA. STAT. § 403.7265(6 . 275. 276.

Id. (to be codified at FLA. STAT. § 403.7265(7 . Id. (to be codified at FLA. STAT. § 403.7265(8 .

277. FLA. STAT. § 403.709 (1991). Funding for SWMTF is provided by fees collected under section 403.718 (waste tire fees), FLA. STAT. section 212.18(5) (registration fees), section 403.7197 (advance disposal fees), section 212.20 (taxes and fees), section 403.704 (funds from processing solid waste), section 403.708(7), (10)(d) (fines), section 403.7195 (waste newsprint disposal fees), and section 403.759 (fees, fines and penalties imposed pursuant to sections 403.75-.769 and 526.01).

278. Ch. 93-207, § 56, 1993 Fla. Laws 1976, 2055 (to be codified at FLA. STAT. § 403.7061(5 . In addition, YEP must seek matching, in-kind, or cash contributions from local governments and the waste-to-energy industry to conduct a pilot project. Id. (to be codified at FLA. STAT. § 403.7061(5)(c .

279. 280.

Id. § 58, 1993 Fla. Laws at 2058. Id. The study should include at least the following commodities: plastic, glass, plain pa-

per, newsprint, steel cans, aluminum cans. Id.

281. 282.

Id. Id. § 59, 1993 Fla. Laws at 2058; see also supra notes 96-99 and accompanying text for a

discussion of the Recycled Markets Advisory Committee. 283. Ch. 93-207, § 73, 1993 Fla. Laws 1976, 2064. 284.

Id.; see also supra notes 206-09 and accompanying text for a discussion of the baseline

litter survey.

285. Ch. 93-207, § 73, 1993 Fla. Laws 1976, 2064. 286. 287.

Id. (one-to-one matching requirement of local contributions and state funds). Id. (four-to-one matching requirement of private contributions to state funds).

IV. AGENCY RULEMAKING AND IMPLEMENTATION

288. Ch. 93-207, § 62, 1993 Fla. Laws 1976, 2063 (to be codified at FLA. STAT. § 403.4154);

see also supra notes 210-20 and accompanying text for a discussion of phosphogypsum stacks.

289. Ch. 93-207, § 68, 1993 Fla. Laws 1976, 2063; see also supra notes 4, 11, 237 and infra

notes 332, 356, and accompanying text, for discussions of biomedical waste.

290. Ch. 93-207, § 75, 1993 Fla. Laws 1976, 2065; see also supra notes 142-72 and accompa-

nying text for a discussion hazardous waste incinerator capacity.

291. Ch. 93-207, § 70, 1993 Fla. Laws 1976, 2064; see also supra notes 17-47 and accompany-

ing text for a discussion of the Advance Disposal Fee.

292. Id. § 71, 1993 Fla. Laws at 2064. 293. Ch. 88-130, 1988 Fla. Laws 599. 294. FLA. ADmsn. CODE ANN. r. 17-712 (May 1989). The dual agency responsibility between DER and HRS is "'to ensure maximum efficiency in coordinating, administering, and regulating activities' associated with the management of biohazardous wastes." Preston & DeRose, supra note 3, at 615.

295.

FLA. ADmIN. CODE ANN. r. 17-701 (1993) (adopted a month after old rules were repealed

in Jan. 1993).

296.

Id. at r. 17-707 (Jan. 1990) (repealed).

Id. at r. 17-702. 297. Id. at r. 17-709 (Nov. 1989). 298. 299. Id. at r. 17-710 (Jan. 1990). Id. at r. 17-716 (July 1991). 300. Id. at r. 17-708 (Nov. 1990). 301. Id. at r. 17-701.630 (Feb. 1993). 302. Id. at r. 17-703. 303. Id. r. 17-714 (Nov. 1992). 304. Id. at r. 17-673 (Apr. 1993). 305. 306. Id. at r. 17-701 (Oct. 1990) (repealed Jan. 1993). 307. Yon Interview, supra note 242. 308. The Florida Environmental Regulation Commission (ERC) is the exclusive standard-setting authority of DEP except for the authority which section 373.114, Florida Statutes (1991), grants to the Land and Water Adjudicatory Commission, and emergency situations articulated in section 120.54(9), Florida Statutes (1991). Additionally, when ERC recommends standards more stringent than federal standards, the Governor and Cabinet must approve them. FLA. STAT. § 403.804 (1991). The ERC also is charged with establishing priorities and approving federal and state grants for constructing waste water treatment works. Id.

309. See DER Public Workshop on Draft Rule 17-701, Florida Administrative Code Revision, Phase III-Subtitle D Changes for Solid Waste Management Facilities (May 25, 1993). 19 Fla. Admin. Weekly 2634 (May 14,1993).

310. Solid Waste Disposal Facility Criteria, 56 Fed. Reg. 50,978 (1991) (to be codified at 40

C.F.R. §§ 257-58).

311. See Fla. Dep't of Envtl. Protection chart titled Department of Environmental ProtectionSecretarial Adopted-Rules 93-94 (June 11, 1993) (on file with department) (showing proposed adoption dates of upcoming rules) All revisions were scheduled for adoption by Feb. 1994. [hereinafter DEP Chart].

312. See Ch. 93-207, § 4, 1993 Fla. Laws 1976, 1981 (amending FLA. STAT. § 287.045 (1991 ; see also supra notes 87-95 and accompanying text for a discussion of state procurement of goods containing postconsumer or recycled waste.

313.

See Ch. 93-207, § 4, 1993 Fla. Laws 1976, 1981 (amending Fla. Stat. § 287.045(5) (1991 . Life cycle costing refers to the prolonged service life of a particular product and the money saved by postponing repurchase of that product. See Staff of Fla. H. Comm. on Nat. Resources, CS for HB 461 (1993) Staff Analysis 19 (May 11, 1993) (on file with comm.).

314. Ch. 93-207, § 4, 1993 Fla. Laws 1976, 1981 (amending FLA. STAT. § 287.045(5) (1991 . 315.

Id.; see also supra notes 87-95 and accompanying text for a discussion of state procure-

ment of goods containing postconsumer or recycled waste. 316. See Ch. 93-207, § 4, 1993 Fla. Laws 1976, 1981. 317. 318.

Id. Id.

319. 320. 321.

Id. Id. See Ch. 93-207, § 32, 1993 Fla. Laws 1976, 2022 (amending FLA. STAT. § 403.7197

(Supp. 1992 .

Id. (to be codified at FLA. STAT. § 403.7197(6)(g . See DEP Chart, supra note 311.

322. 323. 324. See ch. 93-207, § 12, 1993 Fla. Laws 1976, 1993 (to be codified at FLA. STAT. §

Id. (to be codified at FLA. STAT. § 403.7046(1 . Id.

403.7046). 325. 326. 327. See DEP Chart, supra note 311. 328. Ch. 93-207, § 12, 1993 Fla. Laws 1976, 1993 (to be codified at FA. STAT. § 403.7046(1 . 329. 330. See DEP Chart, supra note 311; Yon Interview, supra note 242.

Id. § 28, 1993 Fla. Laws at 2013 (to be codified at FLA. STAT. § 403.7191).

See FLA. ADMIN. CODE -ANN. r. 17-712 (June 1990); see also id. at r. 1OD-104 (Dec.

331. 1992).

See CS for HB 461 Staff Analysis, supra note 49, at 11.

332. See ch. 93-207, § 52, 1993 Fla. Laws 1976, 2049 (to be codified at FLA. STAT. § 403.727). 333. 334. See DEP Chart, supra note 311. 335. Ch. 93-207, § 26, 1993 Fla. Laws 1976, 2010 (amending FLA. STAT. § 403.717) (Supp.

1992 . 336. 337. 338.

.7545, .758, 1993).

Id. § 31, 1993 Fla. Laws at 2020 (amending FLA. STAT. § 403.7195 (1991 . Id. (amending FLA. STAT. § 403.7195(9)(a), (b) (1991 . Id. §§ 46-51, 1993 Fla. Laws at 2046 (to be codified at FA. STAT. §§ 403.75, .7531, .754, .769); see also DEP Chart, supra note 311 (rules scheduled for adoption by Dec.

339. Ch. 93-207, § 62, 1993 Fla. Laws 1976, 2059 (to be codified at FLA. STAT. § 403.4154). 340. FLA. ADuNw. CODE. ANN. r. 17-673 (Apr. 1993). 341.

Id. (Mar. 1993).

342. Ch. 93-207, § 62, 1993 Fla. Laws 1976, 2059 (to be codified at FA. STAT. § 403.4154) (establishing standards); FLA. ADmN. CODE ANN. r. 17-673.650 (effective July 19, 1993) (establishing deadline).

343. FLA. AtDhu. CODE ANN. r. 17-673.650 (July 1993). 344. Ch. 93-207, § 55, 1993 Fla. Laws 1976, 2051 (to be codified at FLA. STAT. § 403.7186);

see also DEP Chart, supra note 311.

345. Memorandum from Raoul Clarke, Environmental Administrator, Hazardous Waste Management Section, Dep't of Envtl. Protection, to All Persons Interested in Florida's Mercury Demonstration Project (July 12, 1993) (on file with DEP).

Id. Id.

346. Ch. 93-207, § 55, 1993 Fla. Laws 1976, 2051 (to be codified at FLA. STAT. § 403.7186). 347. 348. 349. See DEP Chart, supra note 311. 350. Ch. 93-207, § 29, 1993 Fla. Laws 1976, 2016 (to be codified at FLA. STAT. § 403.7192). 351. Yon Interview, supra note 242.

352. Ch. 93-207, § 56, 1993 Fla. Laws 1976, 2053 (to be codified at FLA. STAT. § 403.7061);

see supra notes 173-96 and accompanying text for a discussion of waste-to-energy incinerators. 353. Ch. 93-207, § 56, 1993 Fla. Laws 1976, 2053 (to be codified at FLA. STAT. § 403.7061). 354. See ch. 93-207, § 25, 1993 Fla. Laws 1976, 2010 (amending FLA. STAT. §§ 403.716(1), (3)

Id. § 57, 1993 Fla. Laws at 2056 (to be codified at FLA. STAT. § 403.7895).

(1991 . 355. 356. See id. § 25, 1993 Fla. Laws at 2010 (amending FLA. STAT. §§ 403.716(1), (3) (1991 . 357. See DEP Chart, supra note 311. 358. Ch. 93-207, § 10, 1993 Fla. Laws 1976, 1991 (amending FLA. STAT. § 403.704(15) (1991 . 359. Id. § 40, 1993 Fla. Laws at 2038 (amending FLA. STAT. § 403.7225 (1991 ; see also DEP

Chart, supra note 311.

360. See ch. 93-207, § 21, 1993 Fla. Laws 1976, 2006 (amending FIA. STAT. § 403.7095(6)(f)

(1991 ; see also FLA. ADhaN. Con ANN. r. 17-716 (July 1991).

361.

See ch. 93-207, § 45, 1993 Fla. Laws 1976, 2045 (to be codified at FLA. STAT. §

403.7265(6 .

362.

See DEP Chart, supra note 311.

V. CONCLUSION

363. Ch. 93-207, § 38, 1993 Fla. Laws 1976, 2033 (amending FLA. STAT. § 339.2405(7)(a)(4)

(1991 . 364. 365.

Id. § 61, 1993 Fla. Laws at 2059 (to be codified at FLA. STAT. § 316.2045(5 . Id. §§ 32, 56, 57, 1993 Fla. Laws at 2022, 2053, 2056 (amending FLA. STAT. § 403.7197

(Supp. 1992); to be codified at FLA. STAT. § 403.7061; to be codified at FLA. STAT. § 403.7895 .

366. 367. Preston & DeRose, supra note 3, at 630. 368. 369.

Id. at 630-31. Id. at 631.

370. See United Citizens Against Pollution v. Dep't of Envtl. Reg., Fla. Admin. Order No. 88-2438 (Oct. 5, 1989) (on file with Clerk, Div. of Admin. Hearings); Coastal Envtl. Soc'y v. Trail Ridge Landfill, Fla. Admin. Order No. 90-7837 (Sept. 20, 1991) (on file with Clerk, Div. of Admin. Hearings); Mary Beth Regan, Chemical Waste Could Burn in State, ORLANDO SENTINEL, May 12, 1991, at Al.

371. See supra notes 155-63 and accompanying text for a discussion of the moratorium. 372. HAROLD HODGKINSON, SOUTHERN CROSSROADS: A DEMOGRAPHic LOOK AT SOUTHEAST,

FLORIDA EXTRACT (Jan. 1993) (on file with Fla. Dep't of Educ.).