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Recently Proposed Pollution Notice Rule Struck as Invalid

Bilzin Sumberg Client Alert

Client Alert
January 03, 2017
The Division of Administrative Hearings ("DOAH") recently struck down the Florida Department of Environmental Protection's ("FDEP") proposed Public Notice of Pollution Rule 62-4.161 ("the Rule") in response to a petition filed by Associated Industries of Florida ("AIF").

In November of 2016, AIF challenged the Rule's validity, arguing in part that FDEP exceeded its rulemaking authority by implementing the Rule. DOAH agreed, pointing to the numerous statutes cited in the Rule and categorizing them as "inadequate authority" to support the Rule's enactment. Specifically, DOAH pointed to the statute's lack of authorization for FDEP to require notification to entities other than FDEP; the Rule required notifications to FDEP, local governments and the general public. DOAH also found that the Rule was invalid because it "enlarge[d] the provisions of law" relating to reporting requirements.

The Rule was prompted by the Emergency Order issued by Governor Rick Scott in response to an undetected drainage of hundreds of gallons of contaminated water from a basin at Mosaic's New Wales plant in west Polk County, Florida. However, the 90-day effective period of the Emergency Order has now lapsed. This recent DOAH decision finding the accompanying Rule to be invalid means that reporting requirements revert back to the notice provisions existing before the enactment of the Emergency Order.

Please click here view the full Order by Administrative Law Judge Bram D. E. Canter.
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Howard E. Nelson

Howard E. Nelson

Partner, Head of Environmental Practice