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 .
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With the proposed rule tossed out , DEP ’ s similar emergency rule is no longer in effect .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 .
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