In a final order issued on December 30, 2016, an Administrative Law Judge ("ALJ") struck down a proposed rule from the Florida Department of Environmental Protection ("FDEP"). This rule would have required business owners or operators to report to FDEP and the public within 24-48 hours of certain pollution events. Industry groups challenged this proposed rule, arguing that it was outside FDEP's legal authority and unduly burdensome. ALJ Canter found that FDEP did not follow rulemaking procedures in finalizing the proposed rule. He also found that FDEP did not have the legal authority to impose the rule.
As we highlighted in an earlier update, this case has its origins in FDEP Rule 62ER16-01, F.A.C. ("Emergency Rule"), which took effect on September 26, 2016 and expired on December 25, 2016. In response to recent high-profile pollution incidents, Governor Scott directed FDEP to issue the Emergency Rule to provide the public with notice when a pollution event occurs. The Emergency Rule was meant to be a temporary measure while a permanent rule could be drafted and adopted. To achieve this, FDEP held several workshops across the state to interact with citizens and industry leaders. Some common concerns in those workshops were ambiguities such as who was subject to the Emergency Rule and logistical issues surrounding its reporting requirements.
Subsequently, FDEP drafted Rule 62-4.161, F.A.C. ("Proposed Rule"), which specifically defined what a pollution event is, what must be reported, and who must report. Industry groups argued, however, that FDEP did not have legal authority to enact the Proposed Rule. ALJ Canter agreed, finding that the FDEP had no rulemaking authority to promulgate the Proposed Rule, and that the Proposed Rule improperly attempted to enlarge the provisions of laws it implemented. ALJ Canter also found that FDEP's overreach with the Proposed Rule imposed unnecessary regulatory costs. FDEP had rejected a proposal by industry groups to lower costs by requiring reporting to FDEP, which would maintain a publicly available database of reports and could report pollution events to the public.
Based on this final order, pollution reporting requirements now revert to the requirements in effect before the Emergency Rule (as we previously described). This could change, however. FDEP has until January 30th to appeal the final order in the First District Court of Appeals. Moreover, Governor Scott has repeatedly said that current reporting rules need to be updated. Several legislators are already drafting a bill that would create requirements similar to the Proposed Rule.