9J-2.046. Air Quality Uniform Standard Rule (Transferred)

(1) Purpose. This rule establishes how the Department will evaluate mobile source-related air quality issues in the review of applications for binding letters, local government development orders, and DRI applications for development approval (ADA).

(a) The Legislature established Chapter 380, Florida Statutes, to protect the natural resources and environment of this state and to protect the health, welfare, safety and quality of life of its citizens, by authorizing the state land planning agency to establish land management policies to guide local decisions relating to growth and development. Sections 186.002, 186.007, 186.009, and 187.101, Florida Statutes, establish the State Comprehensive Plan as the long-range, state land development policy guides to be considered in the DRI review process in order to ensure orderly growth in Florida, pursuant to subsections 380.06(3), (4), (12), (13), (14), (15), (25) and 380.065(3), Florida Statutes.

(b) Consistent with the land management policies delineated in the State Comprehensive Plan, it is the intent of the Department to set forth in this rule specific mobile source-related air quality DRI review guideline standards and criteria.

(c) The statutory authority to promulgate and establish this rule is derived from subsections 380.032(2) and 380.06(23), Florida Statutes.

(2) Definitions. As used in this rule:

(a) “Ambient Air Quality Standards” means those standards designated as such in Rule 62-272.300, Florida Administrative Code.

(b) “Applicable Local Plan” or “Local government comprehensive plan” means a plan or element or portion thereof prepared, adopted, or amended pursuant to Part II of Chapter 163, Florida Statutes, as amended.

(c) “Applicable Regional Plan” means the Regional Planning Council’s adopted Strategic Regional Policy Plan pursuant to Section 186.508, Florida Statutes.

(d) “Applicable State Plan” means the State Comprehensive Plan.

(e) “Class I Area” means the areas designated as such under paragraph 62-275.800(1)(b), Florida Administrative Code, including the Everglades National Park, Chassahowitzka National Wilderness Area, St. Marks National Wilderness Area and Bradwell Bay National Wilderness Area.

(f) “Department” means the Florida Department of Community Affairs.

(g) “Guaranteed roadway improvement” means a roadway construction or flow improvement that is ensured of being completed and operational when needed through:

1. A clearly identified, executed and recorded local government development agreement, consistent with Sections 163.3220 through 163.3243, Florida Statutes, that is attached as an exhibit to the development order; or

2. A binding and enforceable local government commitment in the development order; or

3. A local government commitment in the first year of a local government comprehensive plan’s Capital Improvement Element; or

4. A Florida Department of Transportation commitment in the current five years of their Florida Transportation Improvement Program for FIHS facilities or in the first three years of their Florida Transportation Improvement Program for all other facilities; or

5. A binding and enforceable developer commitment in the development order.

(h) “Level of Service” means a qualitative assessment of a roadway’s operating conditions or the average driver’s perception of the quality of traffic flow that is represented by the letters A through F: A representing the freest flow and F representing the least free flow. Quantitative criteria for the different levels of service are provided in the Highway Capacity Manual (1985 Special Report 209) as published by the Transportation Research Board, National Research Council, Washington, D.C.

(i) “Major Stationary Source” means a major source of air pollution as defined by Section 403.031, Florida Statutes.

(j) “Mobile Source” means an automobile, truck, bus and other transportation vehicle, vessel or aircraft that is attracted to or associated with a development, causing the development to be an indirect source of air pollutant emissions.

(k) “Regional planning council” means a governmental body created pursuant to Chapter 186, Florida Statutes.

(l) “Roadway” means an existing or planned road segment in its entirety or any portion thereof, including intersections and interchanges.

(m) “State Implementation Plan (SIP)” means documents prepared by states and subject to the Federal Environmental Protection Agency approval that identify the actions and programs committed to by states to control and/or reduce air pollutant emissions, pursuant to 42 U.S.C. 7401, 40CFR part 51, 40CFR part 52 subpart K, and 40CFR part 81. These multi-volumed documents are available in the Division of Air Resources Management, Florida Department of Environmental Protection.

(3) Application.

(a) This rule shall be used by the Department to review mobile source-related air quality issues in binding letters and applications for development approval, effective the date of this rule. Any proposed development that meets or exceeds the significant impact thresholds identified in this rule shall be determined by the Department to have a significant impact on state and regionally significant air quality. This rule shall not apply to any application submitted to the Department prior to the effective date of this rule, where such an application has continued to remain pending and active, consistent with paragraphs 380.06(4)(d) or (10)(b), Florida Statutes.

(b) This rule shall be used by the Department to review mobile source-related air quality issues in local government development orders. This rule shall not apply to any development order rendered to the Department after the effective date of this rule that approves, with or without conditions, an application that was submitted prior to the effective date of the rule and has continued to remain pending and active until the development order’s approval.

(c) A local government development order shall be determined by the Department to make adequate provision for the air quality addressed by this rule, and shall not be appealed by the Department on the basis of inadequate mitigation of mobile source-related air quality impacts, if it contains the applicable mitigation standards and criteria set forth in this rule.

If a development order does not contain the applicable mitigation standards and criteria set forth in this rule, the Department shall have discretion to appeal the development order, pursuant to the provisions of Section 380.07, Florida Statutes. However, nothing in this rule shall require the Department to undertake an appeal of the development order simply because it fails to comply with the provisions of this rule. A development order failing to comply with the provisions of this rule will be addressed on a case-by-case basis by the Department as to whether it otherwise complies with the intent and purposes of Chapter 380, Florida Statutes. The Department will take into consideration the balancing of this rule’s provisions with the protection of property rights, the encouragement of economic development, the promotion of other state planning goals by the development, the utilization of alternative, innovative solutions in the development order to provide equal or better protection than the rule, and the degree of harm created by non-compliance with this rule’s mitigation criteria and standards.

(d) This rule shall apply to the specific mobile source-related air quality issues delineated herein, and shall not limit the ability of the Department to address other related issues involved with a proposed development, such as radon or hazardous materials exposure, major stationary source impacts to state or regional resources such as Class I areas, or consistency with a local government comprehensive plan.

(e) This rule shall not limit the ability of the Department to make a determination of significant impact or appeal a local government development order on the basis of inadequate, inappropriate, or inaccurate mobile source-related air quality impact analyses carried out by the applicant or his agents, where the findings of such analyses are instrumental to forming the basis of information necessary to evaluate compliance with the application of this rule’s criteria and standards. However, if agreement was reached at a DRI preapplication conference regarding air quality impact analyses assumptions and methodologies to be used in an ADA, then reviewing agencies may not subsequently object to these assumptions and methodologies, consistent with the provisions of Rule 9J-2.021(1)(h), Florida Administrative Code.

(4) Identification of State and Regionally Significant Air Quality. Due to the inherent health, safety, and welfare issues involved, all air quality within the State shall be considered to be state and regionally significant.

(5) Determination and Mitigation of Significant Impacts on State and Regionally Significant Air Quality by Mobile Sources.

(a) SIGNIFICANT IMPACT. Air quality shall be considered to be significantly impacted when a development’s mobile sources are known or predicted to cause or further an exceedance of a carbon monoxide ambient air quality standard, and the development will result in:

1. A degradation of the peak hour level of service (LOS) of any roadway or intersection to LOS E or F in any future year; or

2. A 5-percent or larger increase in peak hour traffic volume on any existing, or future, LOS E or F roadway or intersection while not actually degrading the level of service itself; or

3. A peak hour traffic flow inside any surface parking lot equal to or greater than 1500 vehicles per hour; or

4. A peak hour traffic flow inside any multilevel parking garage equal to or greater than 750 vehicles per hour.

(b) MITIGATION. A development order shall be determined by the Department to make adequate provision for the protection of state and regionally significant air quality areas and shall not be appealed by the Department on the basis of inadequate air quality protection from mobile sources if, at a minimum, it is consistent with any applicable Metropolitan Planning Organization (MPO) plan pursuant to Sections 339.155 and 339.175, Florida Statutes, the State Implementation Plan, and the development order contains one of the sets of conditions enumerated in subparagraphs 1. thru 3. below:

1. Any combination of governmental and developer guaranteed roadway improvements sufficient to ensure non-exceedance of ambient air quality standards throughout the buildout schedule of the development; or

2. Any combination of governmental and developer guaranteed measures, such as mass transit or non-polluting alternative transportation, sufficient to ensure non-exceedance of ambient air quality standards throughout the buildout schedule of the development; or

3. Project-special air quality mitigative measures approved in writing by the Division of Air Resources Management, Department of Environmental Protection, for this development’s Chapter 380, Florida Statutes, local government approval.

(6) Construction of Rule. This rule shall not be construed to limit the ability of local governments to impose more stringent mitigative measures than those delineated in this rule, where such measures or policies are contained within local land development regulations, or a local government comprehensive plan.

(7) Effect of Areas of Critical State Concern. This rule shall be superseded by more stringent air quality requirements for developments in designated Areas of Critical State Concern.

Specific Authority 380.032(2)(a), 380.06(23)(a), (c)1. FS. Law Implemented 380.021, 380.06, 380.065, 380.07 FS. History–New 3-23-94, Amended 2-21-01, 6-1-03.