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Winter 2016
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d&G Lawyer News
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  • Pollution Notification Rule
  • By: Kellie Scott, Esq.

    On September 27, 2016, the Florida Department of Environmental Protection (FDEP) published a Notice of Emergency Rule relating to Public Notice of Pollution. FDEP was directed by Governor Rick Scott to promulgate the rule in response to discharges of process water from Mosaic Fertilizer and domestic wastewater from the City of St. Petersburg, even though both discharges were properly reported to FDEP and corrective actions were undertaken. Neither discharge was reported to local residents because there was no existing requirement to do so.



    Emergency Rule 62ER16-1 requires that an owner or operator of any installation who has knowledge of pollution at the installation provide notice for the occurrence of any incident resulting in pollution, or the discovery of pollution, within 24 hours to FDEP and certain local government officials, in writing, and the general public by way of broadcast television and newspaper. These same parties must be notified within 48 hours if the pollution has the potential to affect areas beyond the property boundary of the installation and of any potential risk to the public health, safety or welfare. Additionally, property owners in any area affected by pollution beyond the property boundary of the installation, FDEP, and the designated local government officials must be notified in writing within 24 hours of the owner or operator becoming aware that the pollution has extended beyond such property boundary. The rule specifies that failure to provide the required notification shall be considered a violation of the rule and subject to the penalties under Section 403.061, Fla. Stat. The Emergency Rule remains in effect for 90 days.

    Also on September 27, 2016, FDEP issued a Notice of Development of Rulemaking for Rule 62-4.161 which would make the requirements of the emergency rule permanent. Since that time FDEP has held 7 workshops around the state and solicited input from the public on the draft rule. On November 15, 2016, FDEP published a Notice of Change containing FDEP’s proposed final version of the rule and a Statement of Regulatory Costs (SERC) finding that the new rule does not directly or indirectly have an adverse impact on economic growth, private-sector job creation or employment, or private sector investment in excess of $1 million in the aggregate within 5 years of the implementation of the rule.

    The proposed rule still contains the three layers of reporting found in the emergency rule and it attempts to clarify the lack of definition and specificity in the earlier version. The rule states that a “reportable release” as used in the rule means “the release of any substance to the outdoor air, land, or waters of the state at an installation…at any level or quantity that is not authorized by law…” and goes on to list relevant and clarifying regulatory authority. The rule provides what information on must be reported and general guidance on the methods of reporting. Failure to report remains a violation under Section 403.061, Florida Statutes, and subject to the imposition of penalties. Even though FDEP has attempted to clarify the meaning of the rule, substantial questions remain about the topic and industry believes the new rule to be a substantial regulatory burden. In addition, in opposition to FDEP’s analysis, private and public industry submitted comments on the SERC and determined that the adverse impact would exceed $1 million and, therefore, be subject to legislative approval.

    Persons who wish to challenge the rule must do so within 20 days of the date of publication of the Notice of Change and SERC. Additional information on the rule can be found on FDEP’s webpage at: http://dep.state.fl.us/pollutionnotice/.
    Contact us at 813-229-2775 to help.
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