Governor Scott today directed FDEP to issue an emergency rule requiring notification of accidental pollution releases by FDEP and the releasers (called by FDEP the “responsible parties”). FDEP is not now specifically required by law to make these notifications except under certain circumstances. There are also no current specific statutory reporting requirements for the responsible parties, who can include both the releasers and current and former property where previous unreported releases have occurred. Whether such authority could be interpreted from the current general statutory authority or created by FDEP’s enacting a rule is something I have been evaluating, debating and advising for at least 30 years, and is something we need to assess with clients who might find themselves causing a leak or finding an old one. Whether Governor Scott can order FDEP to issue such a reporting rule will likely start another debate, and possibly a rule challenge to any such emergency rule that FDEP issues, unless no one in the regulated community objects and the environmental community is ok with it. There has been historic opposition to such a requirement among some in the regulated community. Scott’s press release can be found at http://www.flgov.com/2016/09/26/gov-scott-i-am-directing-immediate-change-to-public-notification-laws-following-pollution-incidents/.
That press release does not address whether the rule should include reporting requirements associated the discovery of existing contamination, such as discovery occurring during real estate transactions when a property owner wanting to sell receives an environmental assessment (e.g. Phase II ESA) that reveals the existence of existing unreported contamination. Emergency rules can be issued quickly without the usual public input, but can be challenged after the fact. Good chance this rulemaking will generate controversy as to how it should be implemented.