DOAH Strikes Onerous Proposed Rule Requiring Public Notification of “Reportable Releases”

…New Pollution Notification Legislation in the Works

Recently, the Division of Administrative Hearings (DOAH) entered a final order invalidating the Department of Environmental Protection’s (DEP) proposed rule expanding notification requirements (including notification to the local media) for every release of any substance that could pose an immediate danger to human health, welfare, or property.

Recently, the Division of Administrative Hearings (DOAH) entered a final order invalidating the Department of Environmental Protection’s (DEP) proposed rule expanding notification requirements (including notification to the local media) for every release of any substance that could pose an immediate danger to human health, welfare, or property.

Siding with business groups that filed the rule challenge, Administrative Law Judge Bram Canter determined that DEP lacked statutory authority to adopt a rule requiring notification of persons and entities other than DEP . Judge Canter found the department’s rule expanded the requirements of the statutes on which DEP claimed to rely, and exceeded DEP’s rulemaking authority. Additionally in his 21-page ruling, Judge Canter concluded that DEP improperly rejected a lower cost regulatory alternative which would have correctly kept the notification burden on DEP.

With the proposed rule tossed out, DEP’s similar emergency rule is no longer in effect. DEP has not yet indicated whether it intends to appeal the ruling. Time will tell whether future judicial and legislative action will resurrect the onerous requirements, but for now, the expansive third-party notification requirements imposed by both the emergency and proposed rules no longer exist.

Existing laws relating to “reportable” pollution reporting requirements remain in effect. State Representative Kathleen Peters and Senator Bill Galvano will be filing legislation to address reportable pollution notification Recently, NUCA of Florida met with Rep. Peters to relay our concerns with the initial DEP rule and Rep. Peters pledged to work with NUCA of Florida and other business groups to craft a workable proposal.