In response to recent high-profile pollution incidents, Governor Scott directed the Florida Department of Environmental Protection ("FDEP") to issue Emergency Rule 62ER16-1("Emergency Rule"). Effective September 26, 2016, the Emergency Rule establishes new requirements for public notification of pollution. The breadth of the Emergency Rule raises questions and concerns about when owners and operators are required to notify FDEP, local officials, and the public of pollution. 

Our team has analyzed the Emergency Rule and had discussions with senior FDEP officials about it. Here is what you need to know about the Emergency Rule: 

  1. Why does this new rule matter? What's new? Prior to this Emergency Rule, state law established FDEP's responsibility to notify the affected public of "contamination" in a very limited situation. Specifically, a person responsible for site rehabilitation is required to notify FDEP when "contamination," as defined in applicable FDEP rules, has migrated beyond the boundaries of property where the initial contamination had been discovered as a result of site rehabilitation activities. See Section 376.30702(2), Florida Statutes. FDEP is then required to send a copy of the contamination notice to all record owners of any real property at which contamination has been discovered. See Section 376.30702(3), Florida Statues. "Contamination" is generally defined by FDEP rules to mean the presence of regulated substances in the environment that exceeds applicable cleanup target levels or water quality standards. Seee.g., Rules 62-761.200(9), 62-762.201(14), and 62-771.100(5)(b), Florida Administrative Code. The Emergency Rule now requires notification of "pollution" by the owner or operator of property to a broader audience, including the general public, even if the pollution does not move off-site and regardless of whether the pollution was discovered as a result of site rehabilitation activities. 
  2. What do you need to report, and who is responsible? An owner or operator of an installation (e.g., structure, facility, or operation) must determine whether a potentially harmful substance is "pollution," as defined by Section 403.031(7), Florida Statutes. FDEP has confirmed that this is the definition applicable to the Emergency Rule. Therefore, the owner or operator must consider whether a substance (a) "may be potentially harmful or injurious to human health" or the environment, (b) would otherwise "unreasonably interfere with the enjoyment of life or property," and (c) is otherwise "authorized by applicable law" (such as by a valid permit). FDEP has also confirmed that there is no numerical threshold implied in the Emergency Rule. This leaves room for interpretation and means that an owner or operator may be required to make a subjective determination of whether reporting is required. 
  3. When is notification required? Notification is required within 24 hours of "the occurrence of any incident at an installation resulting in pollution, or the discovery of pollution," or upon "becoming aware of pollution from an installation that has affected areas beyond the property boundaries of the installation." Notification of "any potentially affected areas beyond the property boundaries of the installation, and the potential risk to the public health, safety, or welfare" is required within 48 hours of "the occurrence of any incident at an installation resulting in pollution, or the discovery of pollution." 
  4. Who do you need to notify? It depends on the circumstances. In all cases, you will need to notify (a) "the mayor, the chair of the county commission, or the comparable senior elected official representing the affected area," (b) "the city manager, the county administrator, or the comparable senior official representing the affected area," and (c) FDEP. Depending on your situation, you may also need to notify (d) either "the property owner of any affected area," or "the general public by providing notice to local broadcast television affiliates and a newspaper of general circulation in the area of the contamination." Finally, be aware FDEP will also notify the public by posting these notices to its website. 
  5. What happens if you do not report? The Emergency Rule states that: "Failure to provide this notification shall be considered a violation and subject to penalties for purposes of Section 403.161, Florida Statutes." Section 403.161 includes civil penalties, as well as a criminal fine of up to $10,000 or 6 months in jail, or both for each offense. According to FDEP'sFrequently Asked Questions ("FAQ") regarding the Emergency Rule, however, "failure to submit required notification to DEP is subject to a one-time administrative fine of $1,000." The FAQs further state that: "Under the proposed legislation, failure to comply with these notification requirements will be subject to penalties from DEP, including fines up to $10,000 per violation per day and other legal actions. These increased fines will not take effect until statutory changes take effect." 
  6. What should you expect next? The Emergency Rule will remain in effect for 90 days, until December 25, 2016. FDEP has published a notice of rule development to begin a formal rulemaking process to develop a permanent rule that mirrors the Emergency Rule. FDEP will now continue the rulemaking process by gathering public comments at seven rulemaking workshops. Furthermore, Governor Scott has said that he will also propose legislation this session "to ensure the 24 hour public notification requirements are codified in law and the penalties to any violators are severely strengthened."  

The Emergency Rule, the proposed permanent rule, and potential legislation will impact many Florida businesses, industries, and landowners.