October 13, 2016
Hon. Gina McCarthy, Administrator U.S. Environmental Protection Agency Mail Code1101A 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 McCarthy.email@example.com
Hon. Heather McTeer Toney, Regional Administrator U.S. Environmental Protection Agency, Region 4 Sam Nunn Atlanta Federal Center 61 Forsyth Street, SW Atlanta, GA 30303-8960 McTeertoney.firstname.lastname@example.org
RE: Florida proposed Human Health-Based Surface Water Quality Toxics Criteria, Rule 62-302.530, F.A.C.
Dear Mses. McCarthy and Toney:
Florida Clean Water Network submits this comment letter into the record, along with its attachments, and in addition to comment letters we previously submitted regarding Florida’s recently approved new and revised Human Health-Based Surface Water Quality Toxics Criteria (HHTC).
BACKGROUND – On June 30, 2016, the Florida Department of Environmental Protection (FDEP) published a notice in the Florida Administrative Register (FAR) that the Environmental Regulation Commission (ERC) would hold a hearing on proposed changes to 62-302.530, F.A.C., on July 26, 2016, which was only 26 days later. The seven-member ERC was missing two members, representing the environmental community and local governments, due to the failure of Gov. Rick Scott to appoint these members.
On July 20, 2016, and prior to the ERC hearing, the Joint Administrative Procedure Committee (“JAPC”) sent a letter to FDEP counsel. JAPC advised that after conducting its statutorily required review of the proposed rule, that it found the ERC Notice in the FAR to be “incomprehensible” to the general public and that the format of the notice and Proposed Rule, in violation of section 120.545(1)(i), F.S. (2016). Nevertheless, the ERC hearing was held.
Some 200 members of the public traveled to Tallahassee for the hearing and more than 80 citizens, local governments, businesses, doctors, environmental organizations, etc. provided written and oral testimony in opposition to the proposed rule. The ERC approved the rule with a vote of 3-2. One of the three “yes” votes was provided by newly appointed ERC member Craig Varn who had just weeks prior to the hearing resigned from the FDEP as general counsel. He filled a seat on the ERC reserved for a “lay citizen” and has not been approved by the Florida Senate. Florida Clean Water Network, representing 300 organizations and over 11,000 individuals, provided written and oral comments at the hearing.
The proposed rule was subsequently challenged before an administrative law judge at the Division of Administrative Hearings (DOAH) by four different entities: The Seminole Tribe, the City of Miami, Martin County and the Florida Pulp and Paper Association. The FDEP filed motions to dismiss all four petitions and they were dismissed for purported procedural issues on September 13, 2016. The Seminole Tribe, the City of Miami and the Florida Pulp and Paper Association have appealed the dismissal of their petitions. Martin County did not appeal their dismissal at DOAH. Several Martin County Commissioners mentioned at a public meeting of the Martin County Commission that they were contacted by the FDEP after their Petition for Administrative Hearing was filed at DOAH about the possibility of the county suffering financial consequences by the state (funding for septic tank removal) if the Petition was not dropped.
The Probabilistic Methodology is Potentially Precedent Setting
FDEP used a Probabilistic Methodology to derive the HHTC. As described in the attached letter from statistician Mary C. Christman, this methodology has not yet been used successfully by any other state for setting human health criteria. The probabilistic approach as implemented by FDEP was not peer-reviewed by biostatisticians but rather by toxicologists who have neither the statistical expertise nor the experience in using the method to adequately evaluate the modeling and its underlying assumptions for probability distributions for the exposure factors.
We know that the National Pulp and Paper Association is encouraging Florida to use the Probabilistic Methodology and is possibly looking for other states that would be receptive to using it as well if the U.S. EPA approves this approach to developing Human Health Toxics Criteria. If EPA approves Florida’s HHTC using the Probabilistic Methodology, it will be difficult or impossible to disapprove criteria adopted by other states using the same or similar methods.
Compounding Conservatism – Protective Assumptions
EPA’s Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000) explains that conservative choices were intentionally made to ensure that a particular target population is adequately protected. EPA states that it “believes that the combination of parameter value assumptions achieves its target goal, without being inordinately conservative.” This contradicts FDEP’s claim that the EPA methodology is “inordinately conservative.” Technical Support Document (TSD) at 1 (FDEP, June 2016) (the DEP approach “better accounts for variability (associated with Florida’s population) and reduces compounded conservatism.”)
In addition, the TSD at 55 states that “Criteria for carcinogens were derived with the objective of not exceeding an incremental cancer risk of 1 in 1,000,000 (10-6) at the arithmetic mean of the risk distribution and no more than a 1 in 100,000 (10-5) incremental increase in risk at the 90th percentile.” Thus, FDEP has not only eliminated the intentional conservatism that EPA considered to be appropriate to provide adequate protection, but FDEP has also decided to protect the mean of the Florida general population at 1 in 1,000,000 (10-6) rather than protect the 90th percentile of the Florida general population at 1 in 1,000,000 (10-6).
It is the position of the Florida Clean Water Network and our members that Florida should protect the 90th percentile at 1 in 1,000,000 (10-6). There are numerous examples of communities in Florida where exposure to high levels of toxic chemicals through fish and/or animal consumption and drinking water is almost guaranteed. Therefore, implementing conservatism in developing water quality criteria for chemicals that have human health impacts is highly appropriate.
For example, in August 2016, the National Health and Environmental Effects Research Laboratory, Office of Research and Development, U.S. Environmental Protection Agency, Gulf Breeze, Florida published a document titled “Environmental Quality of the Pensacola Bay System: Retrospective Review for Future Resource Management and Rehabilitation.” A copy is attached for submission to the record. On pages 19-20, we find the following:
Sediment quality: Chemical-Contaminated sediments are and will continue to be one of the major impediments for environmental improvement for the PBS. Surficial sediments collected from many locations are chemically-contaminated and support only pollution-tolerant benthic communities. Approximately 16-49% of sediment samples analyzed in the past exceed proposed numerical chemical guidelines, suggesting a biological impact. However, exceedance of these guidelines is not a consistent indicator of a corresponding biological impact (30-60% accurate). As for the water column, concentrations of chemicals of emerging and more recent concern are unknown for sediments and not included in judgments for chemical quality.
Sediment quality: Effects-based research-Acute and chronic toxicity to benthic faunal species, genotoxicity, and phytotoxicity have been determined for at least 340 whole sediment samples collected from the PBS. Effects have been analyzed for 13 plant, animal and microbial test species. The frequency of toxicity observed for these sediments is 8% (acute toxicity), 33% (chronic toxicity), 20% (genotoxicity), and 57% (phytotoxicity). Sediments collected from various areas in Bayous Texar, Chico, and Grande have generally been more toxic. The most acutely toxic sediment was collected from upper Bayou Texar (lethal concentration to 50% of test species=3% contaminated sediment). There have been no known sediment toxicity identification evaluations conducted with PBS sediments to determine the specific cause(s) of toxicity and as a result, the Total Maximum Daily Loading (TMDL) process cannot be applied.
Bioaccumulation-Chemical bioaccumulation has been determined for 30 faunal and floral species and 69 chemicals during the last 50 years. Many contaminants of current and historical concern are present in PBS biota, more so for faunal species than primary producers. The most consistent and long-term bioaccumulation monitoring (30 years) has been conducted for oysters in the PBS as part of NOAA’s Mussel Watch Program.
Bioaccumulation: Public health-Some PBS biota contain concentrations of PCBs, dioxins, furans, DDT, mercury, Cd, Zn, and inorganic As that may pose public health risks. Exceedance frequency of reported numerical consumption guidelines, screening values, and benchmarks has been spatially, species, tissue, and guideline-specific. Consumption risk is lowest for shrimp. The health risk is greater for consumption of fish and blue crabs collected from Bayous Texar, Chico, and Grande, upper Escambia Bay, and lower Escambia River. Exceedance for numerical mercury criteria has been 27% or less of samples based on Federal guidelines of 0.3 ppm, 0.4 ppm and 1.0 ppm. However, for the more at risk population (women of child bearing age, children, and subsistence fishers), the lower thresholds of 0.1 ppm and 0.049 ppm have been exceeded by as much as 89% of samples. Exceedance of a screening value for inorganic As (0.01 ppm) in oysters and crabs was between 54%-100% of samples. PCB contamination in the PBS is considered serious. Florida Department of Health guidelines for PCBs (<50 ppb to >500 ppb) were exceeded for 9 of 24 fish from Escambia Bay as part of a Florida Department of Health survey and up to 69% of samples from another survey. A USEPA screening level (20 ppb) was exceeded in all fish (five species, 21 samples) collected from Escambia Bay. There is a public health risk advisory for the consumption of PCB-contaminated striped mullet (skinless) collected from Escambia Bay. The public health risk of consuming seafood containing the human-harmful perfluorinated compounds (anti-sticking and waterproofing agents) and polybrominated diphenyl ethers (flame retardants) cannot be determined due to lack of information. In addition to the above, the presence of pathogens such as coliform bacteria and Vibrio vulnificans in surface water and oysters is also a public health risk.
Bioaccumulation: Wildlife health-Published information describing the risk for wildlife consuming chemically-contaminated prey from the PBS could not be found. Based on a preliminary analysis, PBS wildlife may be at risk from consuming mercury and PCB-contaminated oysters, blue crabs, and fish. Exceedance of proposed wildlife protection guidelines for mercury (0.1 ppm, 0.077 ppm, and 0.033 ppm) was between 21-96% of samples based on a review of bioaccumulation databases for oysters, crabs, and fish. Exceedance of wildlife protection values (0.1 ppm and 0.016 ppm) for total PCBs and fish was 12% and 16% based on results of two studies.
Additionally, drinking water supplies (sand and gravel aquifer) in Escambia County are known to be some of the most contaminated in the nation. The Emerald Coast Utility Company (ECUA) reports to the US EPA that its public potable water that is delivered to hundreds of thousands of people everyday is contaminated with some 45 unregulated chemicals, including PFOA and PFOS.
There are many, many low-income families in Escambia County that rely on locally caught fish for their protein needs and who cannot afford high-tech filters for their drinking water. We cannot afford to allow an increase in the amount of toxic chemicals that are discharged into surface waters from pulp and paper mills (Escambia waters received some 50 to 60 million gallons per day from two paper mills), electric power plants, chemical plants, sewage plants and other dischargers, all of which are located in Escambia County.
Another example of known contamination and grave impacts to the people who rely on locally caught fish and animals can be found in the pleadings from the Seminole Tribe in the DOAH case No. 16004431 RP. On pages 3-4, the Tribe explains that its members depend on consumption of locally caught fish, frogs and aquatic animals for customary culture and practice.
Relaxation of standards regarding these chemicals will further contaminate the aquatic animals upon which the Seminole Tribe’s cultural practices depend and, in doing so, will deprive the Tribe of its traditional and federally protected treaty rights to frog, hunt, and fish.
On pages 10-11, they state
In August 2016, the Seminole Tribe of Florida completed a Tissue Contaminant Study for its Big Cypress and Brighton Reservations, in conjunction with the Environmental Protection Agency as part of its own Triennial Review. An Affidavit of Charles Fellows explaining the Tissue Study and its relationship to the Proposed Rule is attached hereto as Exhibit 3. The study evaluated tissue samples from fish, alligators, turtles, and bears, which are all regularly consumed by the Seminole Tribe of Florida. The tissue samples were tested for twenty six contaminants, for which screening values had been established with the intent of protecting human health from risk exposure through consumption.
- One type of chemical contaminant evaluated was PCBs(polychlorinated biphenyls). PCBs were detected in fish tissue samples, such as largemouth bass, gar, and alligator caught on the Brighton Reservation, at levels that exceed levels of concern identified in DEP’sTechnical Documents supporting the Proposed Rule. Yet, the Proposed Rule relaxes restrictions on PCB pollution, increasing the allowable amount from 0.000045 micrograms (annual average) for Class III freshwater to 0.000098 micrograms (annual average). The Proposed Rule’s allowance for PCB pollution is greater than the EPA limit of 0.000064 micrograms.
- Another chemical contaminant evaluated was Heptachlor Epoxide. Heptachlor Epoxide was not originally included addressed in the human health-based surface water quality criteria. The Proposed Rule calls for an allowable amount of 0.000099 micrograms for Class III, which is higher than EPA’s limit of 0.000032. As with PCBs, Heptachlor Epoxide was been detected in tissue samples in fish, such as largemouth bass caught on the Brighton reservation, at levels exceeding the levels of concern for that contaminant established in DEP’s Technical Document”
These are only two of the many examples that we can provide for communities that are already over burdened with Human Health-Based Toxics in the environment upon which many people rely for their survival.
Fish Consumption Rates
Over the many years that Florida has failed to update its criteria for Human Health Toxics, the fish consumption rates (FCR) that FDEP has used for proposed criteria has varied widely. Looking back it is easy to see that the state has progressively tried to reduce the FCR that is used for Floridians. We pointed this out to the ERC at their hearing, posing the question of whether they should accept FDEP’s current numbers when they have been so uncertain over the years and why should the conservatism that is embedded in the EPA’s deterministic approach (90th percentile FCR) be so easily discarded and disregarded? Please see the attachment which shows Florida’s wide range of accepted FCRs over the last 20+ years.
Thank you for entering these comments and those previously submitted into the record for Florida’s HHTC that is now before you or will soon be, for your approval or disapproval. We ask that you disapprove Florida’s Probabilistic Methodology and the criteria submitted by Florida.
Linda Young, Executive Director Florida Clean Water Network P.O. Box 5124 Navarre, FL 32566 850.322.7978