18050124324_b43e965017_zFollowing two recent incidents, a new emergency rule has been enacted in Florida to ensure that the public, local governments and the Department of Environmental Protection (“DEP”) are notified by all responsible parties following a pollution incident.

Background

On August 28, 2016, Mosaic Fertilizer (“Mosaic”) notified DEP of suspected damage to a gypsum stack liner located at its New Wales Concentrate Plant, which ultimately created a sinkhole that released processed water into the underlying groundwater. While DEP responded to the site within 24 hours to assess potential response actions, the public did not learn of the issue until three weeks later. Also, although DEP reports indicated that no contamination had migrated off-site and therefore no public notification was required under the applicable Florida regulations, many residents remained concerned about the mere possibility of off-site contamination and the timeliness of Mosaic’s public notice.

Thereafter, on September 7, 2016, unauthorized discharges of domestic wastewater were released into Tampa Bay by facilities operated by the City of St. Petersburg, in Pinellas County. Similar to the Mosaic sinkhole, the public and environmental stakeholders expressed concerns about the accuracy and timeliness of information provided to the public by City officials.

Governor Order’s New Emergency Rule

In response to the recent sewage spills in Pinellas County and sinkhole at Mosaic’s New Wales facility, on September 26, 2016 the Governor directed Secretary Jon Steverson of DEP to immediately issue an emergency rule establishing requirements for public notification of pollution incidents. The Governor also declared an intent to propose legislation during the next session “to ensure the public is kept informed of incidents of pollution that may cause a threat to public health and to Florida’s air and water resources.”

Concerned about the general health and safety under Florida’s then-existing notification requirements, the Governor explained:

It does not make sense that the public is not immediately notified when pollution incidents occur and that is why I am directing DEP to immediately issue an emergency rule implementing strict requirements for public notification within 24 hours. Today, I am demanding any business, county or city government responsible for a pollution incident to immediately tell the public. That is common sense and our residents deserve that.”

New Notification Requirements under the Emergency Rule

DEP is responsible for protecting Florida’s air and water resources pursuant to Section 403.061, Florida Statutes.

In accordance with the Governor’s order,  on September 26, 2016, DEP issued a Notice of Emergency Rule for 62ER16-01 which applies regardless of whether the impacts of the pollution remain on-site or not, and covers any pollution affecting Florida’s air or water resources, such as unauthorized discharges of treated and untreated wastewater and industrial wastewater releases.

Under the rule, owners and operators are required to provide notifications to DEP, 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 are required to provide a subsequent notice within 48 hours to describe any potentially affected areas beyond the property boundary of the installation, and the potential risk to public health, safety, or welfare. Finally, the rule also requires owners and operators to notify DEP, local government officials, and property owners within 24 hours of becoming aware that pollution from an installation has affected areas beyond the property boundaries of the installation.

What’s the Legal Scoop?

Moving forward, it is certain that DEP’s emergency rule imposes an entirely new set of notification requirements for responsible parties upon the discovery of any new environmental contamination. It is important to understand that this emergency rule is only in effect for 90 days, during which time the Governor has also directed DEP to initiate a formal rulemaking process under Chapter 120, Florida Statutes, in order to gather public input and make the public notification requirements permanent.

For questions about DEP’s new emergency rule and how it may impact your responsibilities as a private property owner, or for any general questions relating to Environmental or Land Use law in Florida, please contact me at Henderson, Franklin’s Fort Myers office by email at Austin.Turner@henlaw.com or by phone at 239- 344-1178.

 

Photo courtesy of U.S. Geological Survey under Flickr Creative Commons License