Before You Can Sue Over Contamination on an Old Phosphate Mine, Florida Now Makes You Prove It First

Who should have to prove contamination exists before a lawsuit can even begin, the person alleging harm or the company defending against it? For most of Florida law, that question gets answered in court, through discovery, after a case is filed. H0167 changes the order of operations for one specific category of land.

H0167, “Former Phosphate Mining Lands,” is now Chapter 2026-103, effective July 1, 2026. Florida’s Bone Valley region in the center of the state has been mined for phosphate for over a century, and much of that land carries naturally occurring radioactive material as a legacy of that mining. This bill sets out to answer a genuinely hard question: how do you separate real contamination claims from disputes over background radiation that was always there, in ground that’s been reclaimed and redeveloped for decades.

A landowner can record notice in county records that a property is a former phosphate mine, then petition the Department of Health for a gamma radiation survey. The Department has 120 days to complete that survey and 30 days after that to release preliminary results, plus one additional survey on request under set deadlines. Once that notice and survey process is complete, the landowner or a later defendant gains a statutory defense in phosphate-related lawsuits when the alleged condition turns out to be a naturally occurring geological substance rather than something the mining operation caused. Separately, and this is the part that carries the real weight, any plaintiff filing a broad category of phosphate-related pollution lawsuits now has to attach a professionally prepared, verified radiation survey to the complaint itself, before the case can even proceed to discovery.

State-funded testing that clarifies whether a property’s radiation levels are natural background or actual contamination is a reasonable idea on its own. It gives landowners, buyers, and neighbors real information instead of speculation. Recorded public notice that a parcel was a former mine site is straightforwardly useful disclosure. Neither of those pieces should trouble anyone.

The plaintiff-side survey requirement is a different animal. Under this law, a family that believes contamination from a former phosphate operation harmed their property or their health has to purchase or obtain a certified, technically detailed radiation survey before they can even get their complaint into court, not after discovery reveals what actually happened, but as a precondition to filing. For a family with real resources, that’s an inconvenience. For a family without them, it can be the whole ballgame. A case that would otherwise survive to discovery, where the actual evidence gets uncovered, never gets that far if the family can’t front the cost of the survey the statute demands upfront.

And the defense itself is narrower on paper than it may prove to be in practice. It applies when the alleged condition is a “natural geological substance.” That sounds like a clean, factual line. In reality, it hands both sides a new, expensive, technical fight over characterization before the underlying harm ever gets addressed, whether a given contamination pathway counts as natural background or as something the mining activity concentrated or caused. That fight itself becomes the barrier.

Phosphate operators have a legitimate interest in not being sued into the ground over background radiation that predates any mining activity and would exist on that land regardless. Frivolous claims impose real costs too, and a state survey requirement that gives both sides objective data before litigation starts isn’t inherently unreasonable. That’s a fair point, and it deserves to be taken seriously rather than waved off as industry cover.

But notice the asymmetry in who bears the cost of getting that objective data. The state survey process protects the landowner. The pleading-stage survey requirement burdens the plaintiff. If the goal is genuinely to separate real contamination claims from background-radiation disputes before expensive litigation starts, the fix is to make that data-gathering step something the state provides or subsidizes for claimants too, not just something landowners can invoke as a shield after the fact.

Keep the state survey program. Keep the recorded-notice mechanism. Fix the front end: guarantee claimants access to fee-waived or state-funded testing equivalent to what landowners get, allow a case to proceed if state testing is delayed past a reasonable deadline, and make clear the natural-geological-substance defense doesn’t apply where mining activity concentrated or caused the contamination being alleged. Property rights cut both ways. The right to defend your land from a bad-faith lawsuit matters. So does the right of a family harmed by real contamination to get their case in front of a judge without having to win an expensive technical argument just to walk through the courthouse door.

This is our read of the bill. We encourage you to read it yourself and reach your own conclusions.