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Judge Throws Out Pollution Notification Rule

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Suzanne Young
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

An administrative law judge Friday ruled that the Florida Department of Environmental Protection overstepped its authority in proposing new requirements for notifying the public when pollution occurs.
The department proposed the notification requirements after high-profile pollution incidents involving a sinkhole at a phosphate plant in Polk County and sewage discharges into Tampa Bay.

But Associated Industries of Florida, the Florida Farm Bureau Federation, the Florida Retail Federation, the Florida Trucking Association and the National Federation of Independent Business challenged the proposed rule in the state Division of Administrative Hearings.

Judge Bram D.E. Canter issued a 21-page order Friday siding with the business groups' arguments that the department does not have authority under state law to impose the notification requirements on people or businesses responsible for pollution releases. In part, the arguments dealt with proposed requirements for notifying the public through the news media when pollution occurs.

Canter wrote that state law only requires that the Department of Environmental Protection be notified about incidents such as spills or contamination.

"There is no statute that specifically authorizes DEP to adopt a rule which requires persons to notify entities other than DEP when there is a release of a contaminant," Canter wrote.

The proposed rule came after incidents that included a sinkhole opening at a Mosaic fertilizer plant in Polk County and sending contaminated water into the Floridan Aquifer. Also, it followed St. Petersburg spilling large amounts of sewage into Tampa Bay after Hurricane Hermine.

The proposal called for such pollution incidents to be reported to the Department of Environmental Protection, the news media and local governments within 24 hours. Also, the proposed rule included reporting requirements such as notifying adjacent property owners when pollution travels off-site.

In a document filed Dec. 14, attorneys for the business groups argued that the department's "haste to respond to the Mosaic sinkhole incident and the St. Petersburg release led to this broad rule and led FDEP to disregard their lack of statutory authority."

But department attorneys, in a document filed the same day, contended the agency had the legal authority to require the stepped-up notification.

While Canter sided with the business groups, the issue of public notification of pollution incidents could re-emerge during the 2017 legislative session, which starts in March. Sen. Bill Galvano, R-Bradenton, and Rep. Kathleen Peters, R-Treasure Island, indicated in September that they would propose legislation to address the issue.

McKinley Lewis, a spokesman for Gov. Rick Scott, said in an email statement late Friday afternoon that the Scott administration remains committed to increased public notification.