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Agency urged to take more time with Rick Scott’s pollution spill rule

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Business interests and local governments urged the Florida Department of Environmental Protection Monday to slow the rush toward an emergency pollution spill warning regulation being pushed by Gov. Rick Scott.

Still, a department representative said during a hearing before an administrative officer that public comments would remain open only until 5 p.m. Wednesday, after which officials would begin preparing the final regulation.

“We certainly will take the comments that were previously provided, as well as those today, and the department will take a final decision on what the final rule will look like,” said Robert Williams, chief deputy general counsel to the DEP.

Scott ordered the department to enact the rule following the Aug. 27 spill of hundreds of millions of gallons of contaminated water into the Floridan aquifer via a sinkhole at a Mosaic Co. phosphate plant in Polk County.

Mosaic informed state and federal regulators of the spill the next day, but nearby residents weren’t told until three weeks later.

Amid the subsequent public outrage, Scott has ordered DEP to enact the emergency rule and to issue daily public updates about the cleanup.

“This emergency rule will require the owner, operator of any facility, including a city or county government, to provide notification of incidents or discovery of pollution within 24 hours to DEP, local governments and the general public through the media,” the department wrote on its website.

John Buss, manager of water resources engineering for the City of Tallahassee, repeated a complaint shared by several speakers: lack of time to review revised language the department issued Friday. He sought another week or two to review the proposal.

“Many people don’t even know about it, and you’re holding hearings on it,” he said.

A number of additional complaints emerged Monday: compliance costs, conflict with federal regulations, that small businesses might not understand their obligations, and the potential to confuse the public.

“We share the goal of notifying the public about truly significant events — things that really could affect them,” said Gregory Munson, a shareholder in Gunster representing interests including the Associated Industries of Florida.

“This rule presents a risk of over-reporting unnecessary and potentially trivial events to the pubic, thereby desensitizing them to true emergencies if and when those actually occur.”

Michael Sole, vice president for state government affairs at Florida Power & Light, said when he explained the regulation to his wife, she wondered: “Why is the department foisting its obligation on the regulated public?”

“You’ve taken something that can be done very effectively by the agency, to ensure the information is provided to the right people, and you’ve confounded it,” Sole said. “You’ve created a significant regulatory burden that, quite candidly, I do not believe will achieve the intent that you’re looking for. It will confound simple emergency response actions and require people to focus on regulatory processes that do not improve the conditions.”

Max Lee of Koogler & Associates, an engineering consulting firm in Gainesville, argued air pollution emissions are difficult to measure, and would require “not inexpensive” advance modeling, testing different scenarios, to suggest whether an accidental emission requires notice.

He asked that the department bear in mind: “Air emissions are going to go off-site. By the time most of these facilities understand there’s an impact, that plume is going to be over the Caribbean.”

Jeff Littlejohn, a lobbyist for the Florida Ports Council, said the regulations could interfere with Florida’s ability to compete with other states for vessel traffic.

“Many of the port directors have participated in trade missions with the governor over the past several years, and really support his efforts to attract new business and manufacturing to Florida and Florida’s ports,” Littlejohn said.

“Any regulation that is unique to Florida and adds a cost to do business in Florida puts Florida at a tremendous competitive disadvantage.”

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

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