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Recently Proposed Pollution Notice Rule Struck as Invalid

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.

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume VII, Number 4

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About this Author

Howard E. Nelson, Environmental Practice Attorney, Bilzin Sumberg Law Firm
Partner

Howard E. Nelson has over 20 years of experience in environmental and land use law and over 25 years of experience in zoning and regional planning. He represents clients throughout all phases of the development process—from site location through permitting and construction, as well as in permit appeals and defense of environmental enforcement matters.

Howard focuses a substantial portion of his practice to the analysis and remediation of site contamination issues, representing several national homebuilders in pre-acquisition...

305-350-2386
Cristina Arana Lumpkin, Environmental Attorney, Bilzin Sumberg Law Firm
Partner

Cristina Arana Lumpkin is a Partner in Bilzin Sumberg's Environmental Group. She advises clients on all aspects of environmental law, including transactional, regulatory and litigation matters.

Cristina represents homebuilders and commercial real estate developers throughout all phases of the land development process. She advises clients on pre-acquisition environmental due diligence, working with the client's environmental consultants to ensure the appropriate scope and methods of site assessment. For contaminated sites, Cristina advises clients on selection of appropriate remedial strategies for the client's objectives and budget. Cristina oversees implementation of remedial actions and preparation of reports and works with governmental agencies to achieve regulatory closure of contaminated properties.

305-350-7241