A Florida administrative law judge says a rule requiring companies to notify the public of pollution events within 24 hours is invalid.
The new rule was pushed by Gov. Rick Scott after it took weeks for the public to be notified about a giant sinkhole at a fertilizer plant that sent millions of gallons of polluted water into the state’s main drinking water aquifer.
Administrative law judge Bram Canter on Friday ruled that the new rule, which would result in fines for companies who failed to report pollution within a day, was “an invalid exercise of delegated legislative authority.”
Five business groups – Associated Industries of Florida, Florida Farm Bureau Federation, Florida Retail Federation, Florida Trucking Association and the National Federation of Independent Business – challenged the rule in court, saying it would create excessive regulatory costs.
Scott’s office says he is reviewing the ruling and that he still believes the current rules are outdated and need to change.
Back in September, the Florida Department of Environmental Protection (DEP) issued an emergency rule that would require businesses responsible for instances of pollution to notify the state and the public about those instances on an expedited timeline. Under the emergency rule, notification is required to the DEP and to local government officials and the media.
DEP is now in the process of passing a final rule to address pollution notification. Below is the revised proposed rule:
Positive changes have been made to the rule. The rule is now more clear about what amounts of pollutants trigger the notification requirements. But the rule still raises concerns about the cost to business and the potential for ineffective and inaccurate information being shared with the public. We believe the DEP should be the central clearinghouse for the notification of pollution.
We are submitting our comments to the DEP to encourage further changes to the rule. Please share this rule within your companies and let us know what concerns you have. If you have real-life examples regarding how this could negatively impact your business, please share those with us so that we can educate the DEP about the impact of this rule.
Comments will only be received by the state agency up until 5:00 pm on Wednesday, November 9, so please get back with us as soon as you are able. We appreciate your input.
Below is the Emergency Rule that the Florida Department of Environmental Protection has issued regarding notification of pollution. The Emergency Rule as drafted creates questions about when notification is required. We are working with DEP to clear up these questions. We recognize and agree with the necessity of prompt notification of pollution. Our businesses, our communities and our state are best served when pollution is quickly and completely addressed and its harm is minimized or eliminated. We want to make sure our member businesses are fully compliant without creating unnecessary burdens for local officials and needless concern for citizens. As we receive more detailed information from DEP, we will share this information with you.
Notice of Emergency Rule
DEPARTMENT OF ENVIRONMENTAL PROTECTION
RULE NO.: 62ER16-1
RULE TITLE: Public Notice of Pollution
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: In a "Specific Finding of Immediate Danger to the Public Health, Safety, or Welfare," which was published on the date of this emergency rule (available at www.dep.state.fl.us/pollutionnotice) and filed with the Secretary of State's Office, Secretary Steverson found that there is a need to immediately require specific notification to the public of any incident or discovery of pollution that may cause a threat to the air, surface waters, or groundwater of the state. These circumstances present an immediate hazard to public health, safety, or welfare which requires emergency action.
REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: Prompt notification to the public is necessary regarding any incident or discovery of pollution that may cause a threat to the air, surface waters, or groundwater of the state such that public health could be at risk. The Secretary will commence rulemaking procedures for the emergency rule immediately.
SUMMARY: The provisions of the action provide a requirement that owners and operators of any installation provide notifications to the Department, local government officials, and the public whenever there is an incident or discovery of pollution at an installation within 24 hours. In addition, the owner and operator would be required to provide a subsequent notice within 48 hours that describes any potentially affected areas beyond the property boundary of the installation, and the potential risk to public health, safety, or welfare. The owners and operators are required to notify the Department, local government officials, and the property owner within 24 hours of becoming aware that pollution from an installation has affected areas beyond the property boundaries of the installation.
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Robert A. Williams, Chief Deputy General Counsel, Florida Department of Environmental Protection, 3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399
THE FULL TEXT OF THE EMERGENCY RULE IS:
62ER16-01Public Notice of Pollution
Any owner or operator of any installation who has knowledge of any pollution at such installation shall provide notice of the pollution as follows:
(1)Within 24 hours of the occurrence of any incident at an installation resulting in pollution, or the discovery of pollution, the owner or operator shall notify the Departmentand the following persons, in writing, of such pollution:
(a)The mayor, the chair of the county commission, or the comparable senior elected official representing the affected area.
(b)The city manager, the county administrator, or the comparable senior official representing the affected area.
(c)The general public by providing notice to local broadcast television affiliates and a newspaper of general circulation in the area of the contamination.
(2)Within 48 hours of the occurrence of any incident at an installation resulting in pollution, or the discovery of pollution, the owner or operator shall notify the Department and persons identified in (1)(a) through (1)(c), in writing, of any potentially affected areas beyond the property boundaries of the installation, and the potential risk to the public health, safety, or welfare.
(3)Within 24 hours of becoming aware of pollution from an installation that has affected areas beyond the property boundaries of the installation, the owner or operator shall notify, in writing, the property owner of any affected area, the Department, and the persons identified in (1)(a) through (1)(b).
(5)Failure to provide this notification shall be considered a violation and subject to penalties for purposes of Section 403.161, Florida Statutes.
Rulemaking Authority 377.22(2), 403.061(7), 403.061(8), 403.062, 403.855(1), 403.861(9) FS. Law Implemented 377.21, 377.371, 403.061(16), 403.061(17), 403.061(18), 403.062, 403.855(3), 403.861(9) FS. History-New 9-26-16.
THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.
EFFECTIVE DATE: 09/26/2016