Judge rejects 24-hour pollution notice rule prompted by Mosaic sinkhole

Published January 1 2017

A judge has tossed out a rule pushed by Gov. Rick Scott to require corporations and government agencies to notify the public via the media within 24 hours when there's any sort of pollution problem.

In a 19-page ruling Friday, an administrative law judge said that the Florida Department of Environmental Protection had overstepped its authority in approving the new rule and that only the state Legislature can enact such a change in how the public is notified regarding pollution.

Scott called for the rule change in September, after word got out that Mosaic, the world's largest phosphate company, and the DEP had both kept quiet for three weeks about a sinkhole at the company's Mulberry facility that dumped 215 million gallons of contaminated water into the aquifer.

The DEP had argued that state law did not require the agency or the company to notify the public about the pollution problem unless the contamination showed up beyond the borders of the company's property.

To Scott, that made no sense.

The governor told DEP Secretary Jon Steverson to develop a new rule requiring the owner or operator of any facility "to provide notification of incidents of pollution within 24 hours to DEP, local governments and the general public through the media."

Scott said he was taking that step not only because of the sinkhole at the Mosaic facility in Mulberry, but also because of the delay in St. Petersburg officials reporting the tens of millions of gallons of sewage that the city's aging wastewater system released into Tampa Bay after Hurricane Hermine.

"It does not make sense that the public is not immediately notified when pollution incidents occur," the governor said at the time. "Today, I am demanding any business, county or city government responsible for a pollution incident to immediately tell the public. That is common sense and our residents deserve that."

The DEP posted the new rule Nov. 15, but it was challenged by such business groups as Associated Industries of Florida, the Florida Farm Bureau and the Florida Trucking Association.

This week the administrative law judge hearing their challenge agreed that state law doesn't give the DEP the power to change the rule without the Legislature's approval. The law requires only that the DEP be notified, no one else.

"There is no rulemaking authority for (the) proposed rule," Judge Bram D. E. Canter said. Therefore the new rule is "an invalid exercise of delegated legislative authority."

Scott had already promised to push for a legislative change in the law in 2017. The DEP has 30 days to decide whether to appeal the judge's ruling.

In October, the DEP announced it had worked out a consent order with Mosaic requiring the company to seal the sinkhole, recover all the pollution that drained into the aquifer when it opened up in August and make sure that its waste never again threatens the aquifer.

The company is also required to put up $40 million in financial assurances — something usually posted as a performance bond. And if it fails to follow through on the entire order, the company will face fines of up to $10,000 per day.

Tests of wells in the surrounding neighborhood have so far failed to detect any of the acidic, slightly radioactive contamination from the sinkhole, according to the DEP. Three local residents have sued Mosaic over the incident.

Contact Craig Pittman at craig@tampabay.com. Follow @craigtimes.