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Florida's Proposed Pollution Notification Rule
Declared Invalid
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.
Our Land Use, Development and Zoning Practice Group will continue to monitor how any future appeals or legislation will affect Florida businesses, industries, and landowners.
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| MEET THE AUTHORS
*Special thanks to Ayodale Tan, who assisted in the drafting of this update. Dale is a law clerk in the Tampa office and a second-year Juris Doctor Candidate at Stetson University College of Law.
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Florida Attorney General Opinion: Local Governments Can Regulate Vacation Rentals but Cannot Prohibit Them
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Proper Procedure for Settlements During Appellate Proceedings Must Be Followed to be Effective; County Must Not Deny A Zoning Application If the Applied Zoning Category Is Listed as an Acceptable Category
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Maria A. Gralia
Shareholder, Miami
Maria's Practice: Maria has over 17 years of experience in real estate with an emphasis on land use and zoning. She represents developers, businesses, financial institutions, not-for-profit institutions and private property owners with all stages of development of real estate, including but not limited to negotiating the purchase and sale agreement and taking the property to closing and obtaining the necessary entitlements for the development of the property.
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Recent Successes: Maria assisted the University of Miami in obtaining the necessary entitlements for the development of the Marine Technology and Life Sciences Seawater Complex at the Rosenstiel School of Marine and Atmospheric Science, which includes a wind-wave storm simulator able to produce category 5 force winds. Most recently, Maria successfully obtained the approval of a plat waiver in the City of Coral Springs to permit the rehabilitation of an elderly housing project. The plat waiver was not typical as the property was previously developed as a single site containing two towers attached by a recreational building. Maria worked closely with City staff and the client to achieve a plat waiver that would allow the conveyance of one of the towers to a separate entity for purposes of tax credit finance purposes. Additionally, Maria has been involved in various hotel purchase transactions throughout the State of Florida that require extensive land use and zoning review. In these transactions, Maria assists hospitality clients in navigating the complexities of the zoning code to ensure that the proposed development program is achieved.
Community Service: Maria is actively involved in the local community and is a member of several professional and charitable organizations. She sits on the board of Intercultural Outreach Initiative "(IOI"), a link between international expertise and local needs of host communities promoting educational travel with conservation of community development. IOI recently started a program in Cuba collaborating with Cuba Marine Research and Conservation.
Maria also sits on the Miami Downtown Development Authority Homeless Task Force, an initiative of the Miami DDA to tackle the issue of chronic homelessness in downtown Miami and develop strategies and implement policies geared toward the elimination of chronic homelessness to enhance the quality of life for all within downtown Miami.
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