In 2017, in response to several high-profile pollution incidents, the Florida Legislature strengthened public notice requirements of pollution incidents with the Public Notice of Pollution Act (the "Act") codified in Sections 403.076 through 403.078, Florida Statutes. The Act requires owners or operators of installations to report certain discharges of pollutants by providing notice to FDEP within 24 hours of the discharge. Under the Act, FDEP is required to maintain a public website that contains information about the reported discharges.

If you own or operate a facility that discharges, or could discharge, pollutants into the environment, you should become familiar with these reporting requirements. In the event of a discharge, an owner or operator's failure to comply with these reporting requirements could result in penalties or fines, or potentially greater liability to the owner or operator depending on the circumstances.

Our team has analyzed FDEP reporting records and noted several trends. First, as might be expected, population roughly correlates with release reporting, with higher report volumes in larger counties. For notices submitted from July 2017 to December, 2018, Orange County experienced the most notifications at 233, with Pinellas County following at 189. Twelve of the larger populated counties have had over 100 notifications. However, almost half of our counties, many of which have smaller populations, have had less than ten notifications, and six counties have yet to see a notification event in 18 months.

Second, reclaimed water and sewage discharges account for almost 90 percent of the reports to date. In a related trend, many of the reportable events appear to be associated with weather events that spike stormwater volumes and tend to overwhelm existing sewage infrastructure. Excessive rainfall combined with power outages and infrastructure failures have led to over half of the noticed discharges. At least two municipal operators entered into Consent Orders ("COs") with the FDEP in 2017 to address historic sewage overflows. Among other requirements, these COs include commitments for infrastructure upgrades with schedules, requirements for water quality assessment of affected surface water bodies, and a schedule of stipulated penalties in the event of additional discharges.

Finally, third party notices are being filed. Although the Act only requires that owners and operators report discharges, FDEP's website also allows non-owners and non-operators to file notices. Regardless of the nature and circumstance of the initial notice or who does the initial filing, due to the speed at which reporting must occur-within 24 hours of discovery-updates to the initial notice can and often should be used to clarify incidents and their impacts.

It should be noted that reporting through FDEP's platform may not satisfy all environmental reporting requirements. For instance, depending on the type of facility or release, follow up or simultaneous notices may be required to meet other legal and permit obligations. Landowners and operators of facilities need to be aware of these additional federal, state and local reporting requirements.

If you have any questions regarding the reporting requirements under this Act and other federal, state, and local regulations associated with pollution please do not hesitate to contact us.