In the wake of two pollution incidents, a raw sewage spill into Tampa Bay in Pinellas County and the sinkhole at Mosaic Fertilizer’s New Wales facility in Polk County, Florida, Governor Rick Scott released a statement on Monday, September 26, 2016, directing the Department of Environmental Protection (DEP) to issue an emergency rule amending requirements for public notification of pollution incidents. Later that day, the DEP released a Specific Finding of Immediate Danger to the Public Health, Safety or Welfare, which is a requisite step to promulgating an emergency rule under Chapter 120 of the Florida Statutes, and the DEP posted notice of the proposed emergency rule, which contains the full text of the rule. Under Chapter 120.54, Florida Statutes, an emergency rule may be effective for a maximum of 90 days, but the Governor instructed DEP to concurrently conduct formal rulemaking to make the changes permanent, and stated that he intends to propose legislation during the next legislative session to amend the current notification law, which requires public notification only if pollution moves off-site in most circumstances.
As proposed, the emergency rule requires “any owner or operator of any installation who has knowledge of any pollution at such installation” to provide notice to the public and various public officials within 24 hours of “the occurrence of any incident at an installation resulting in pollution, or the discovery of pollution.” The emergency rule requires the owner or operator to provide written notice to the DEP, “the mayor, the chair of the county commission, or the comparable senior elected official representing the affected area,” the “city manager, the county administrator, or the comparable senior official representing the affected area,” and “the general public by providing notice to local broadcast television affiliates and a newspaper of general circulation in the area of the contamination.” In addition, within 48 hours of a pollution incident or the discovery of pollution, an owner or operator must notify, in writing, the same above parties “of any potentially affected areas beyond the property boundaries of the installation, and the potential risk to the public health, safety, or welfare.” If the pollution has “affected areas beyond the property boundaries of the installation,” the owner or operator of the facility must notify, in writing, the same people and entities listed above and the property owner of “any affected area.” Finally, failure to follow this rule’s requirements will subject the violator to penalties under § 403.161, Florida Statutes, which authorizes penalties in the form of damages to the state, misdemeanor or felony criminal charges, and fines up to $50,000 for each offense.
The emergency rule does not provide definitions for any of the terms it uses including “pollution” or “installation.” These terms can have broad interpretation, which could make the rule’s reach very problematic. Section 403.031(7), Florida Statutes defines “pollution” as “the presence in the outdoor atmosphere or waters of the state of any one or more substances or pollutants in quantities which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which may unreasonably interfere with the enjoyment of life or property, including outdoor recreation,” which is broad. This definition encompasses both a wide array of substances and small quantities of those substances that could potentially trigger the reporting requirements. The rule does not address retroactive application, either, to situations where pollution was previously discovered and notification may have been made to DEP.
It is important that affected clients and industries be involved in this rulemaking. We want to hear your concerns and how this rule could potentially affect your business or industry. We will continue to monitor this rulemaking as it develops. Please do not hesitate to contact us with questions, concerns, or for further information.
Governor Scott’s full statement can be read here: http://www.flgov.com/2016/09/26/gov-scott-i-am-directing-immediate-change-to-public-notification-laws-following-pollution-incidents/
The full text of the DEP’s Specific Finding of Immediate Danger to the Public Health, Safety or Welfare can be read here: http://www.dep.state.fl.us/pollutionnotice/Specific-Finding-of-Immediate-Danger.pdf
The full text of the proposed emergency rule can be read here: https://www.flrules.org/gateway/ruleNo.asp?id=62ER16-1
The DEP has created a site to facilitate providing notice to the appropriate parties under this rule, it can be viewed here: http://www.dep.state.fl.us/pollutionnotice/
Rule No.: 62-4.161 https://www.flrules.org/gateway/RuleNo.asp?id=62-4.161