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Court Order Invalidates FDEP Pollution Notification Rule

On December 30, 2016, Florida Administrative Law Judge Bram D. E. Canter entered a Final Order finding that the Department of Environmental Protection’s (FDEP) proposed rule regarding pollution notification (Rule 62-4.161, F.A.C.) was an invalid exercise of delegated legislative authority. Industry challenged the rule in the state Division of Administrative Hearings in response to the FDEP’s proposal for notification after two high-profile incidents. This rule would have required a person to report certain types of releases of pollution to FDEP, the media, and the local government within certain deadlines or face penalties and fines. Judge Canter agreed with industry’s argument that FDEP does not have authority under state law to impose the notification requirements on people or businesses responsible for pollution releases. The earlier issued emergency rule and the proposed rule are no longer in effect and reporting requirements return to those that existed the day before FDEP issued the emergency rule. If FDEP wants to move forward with a similar rule, they will need to seek legislative authority to do so.

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