NOTE TO READERS: The formatting is a little off on this. I’m sorry I don’t know how to post it to retain the formatting. Hopefully you can figure out the flow of the comment letter. Linda Young
Mr. Eric Shaw
Standards and Assessments Section
Florida Department of Environmental Protection 2600 Blair Stone Road, MS 6511
Tallahassee, FL 32399-2400
Re: Health-based Water Quality Criteria
Dear Mr. Shaw:
This comment is submitted in response to the Florida Department of Environmental Protection’s (FDEP’s) request for comments on proposed revisions to health-based water quality criteria in Rule 62-302.530.
On December 7, 1990, the Florida Department of Environmental Regulation adopted water quality criteria for approximately thirty-one (31) toxic pollutants that may have an effect upon human health. Such criteria were developed based on the default national average freshwater and estuarine fish consumption rate of 6.5 grams per day (0.065 kg/day) recommended by the U.S. Environmental Protection Agency (EPA) in 1980 and a cancer risk level of 10-6 (one-in-one million).
On August 31, 1994, the Florida Agricultural Market Research Center at the University of Florida published Per Capita Fish and Shellfish Consumption in Florida, Agricultural and Market Research Center, Industry Report 94-2 (Aug. 31, 1994). This report, commissioned by FDEP in 1992, included the results of a 7-day recall survey conducted between March 15, 1993 and March 13, 1994, of the fish consumption habits of three survey populations: the general population across the state; the general population in communities where paper mills are located; and households receiving food stamps. The results of the survey, summarized in the table below, confirm that fish consumption in Florida was significantly more fish than the 6.5 g/day recommended by EPA.
MEAN PER CAPITA FINFISH AND SHELLFISH CONSUMPTION RATES IN FLORIDA BY SAMPLE TYPE (Fish Consumers and Non-Consumers)
Paper Mill Communities Sample n=1,000 (g/day)
Food Stamp Households Sample n=500 (g/day)
Source: Per Capita Fish and Shellfish Consumption in Florida, Agricultural and Market Research Center, Industry Report 94-2 (Aug. 31, 1994).
On July 21, 1995, the Legal Environmental Assistance Foundation, Inc., Florida Wildlife Federation, Florida League of Anglers, Inc., and Sierra Club – Florida Chapter petitioned FDEP to amend the surface water quality criteria for thirty-one (31) toxic pollutants identified in Rule 62- 302.530, F.A.C., that may have an effect upon human health based on the higher fish consumption rate presented in Per Capita Fish and Shellfish Consumption in Florida.
On October 25, 1995, FDEP Secretary Virginia B. Wetherall partially granted and partially denied the petition. Order, OGC Case No. 95-1747 (Oct. 25, 1995) The Secretary noted:
The Department is actively evaluating the data presented in the University of Florida report entitled Per Capita Fish and Shellfish Consumption in Florida, Agricultural Market Research Center, Industry Report 94-2 (August 1994). Because of incomplete statistical information, the Department commissioned a follow-up study from the University of Florida, the results of which will be complete in November of 1995. While the Department has already begun rule development to adopt stricter surface water quality criteria based on the results of the study cited above, it would be inappropriate for the Department to publish a notice of proposed rulemaking to amend such criteria when the results of a follow-up study are still pending.
The Secretary concluded:
The Department shall conduct public workshops to discuss modification of the Department’s human health-based surface water quality criteria, following completion of the follow-up study by the University of Florida, at which time proposed revisions to rule 62-302.530 of the Florida Administrative Code will be addressed.
In December 1995, the FDEP received Statistical Analyses of Florida Per Capita Fish and Shellfish Consumption Data, Florida Agricultural Market Research Center Industry, Report 95-1 (Dec. 1995). This report provided additional analyses of the data collected in the 1993-1994 survey reported in Per Capita Fish and Shellfish Consumption in Florida, specifically: mean, median and selected percentile consumption rates among the general population and selected socio-demographic
categories for eight classes of fish (marine finfish, marine mollusks, marine crustaceans, freshwater predators, freshwater bottom feeders, processed finfish, panfish and sharks); and county rankings by average consumption of each class of fish. The report did not attempt to calculate mean or percentile daily total fish consumption rates by Florida’s general population or other groups.
In the years that ensued, FDEP has developed numerous proposals to amend the criteria and conducted numerous workshops on those proposals, but never finalized any revised water quality criteria reflecting a fish consumption rate higher than 6.5 grams per day.
On June 18, 2009, the Florida Clean Water Network submitted a Petition for Proposal and Promulgation of Water Quality Criteria for the Protection of Human Health in the State of Florida to EPA. After two years of no action by EPA, the Florida Clean Water Network, on June 17, 2011, threatened the Agency with a lawsuit for unreasonable delay. Subsequently, the Florida Clean Water Network agreed not to file the lawsuit until after December 15, 2012 to allow EPA time to engage in certain petition review activities.
II. Insufficient Comment Period
On February 1, 2013, FDEP announced a rulemaking workshop scheduled for February 5, 2013. Included with the announcement were draft criteria and a comparison to EPA recommended criteria. At the February 5, 2013 workshop, FDEP made a PowerPoint presentation explaining how it developed the criteria. At that workshop, I requested that FDEP extend the public comment period. It was not until 3:00 p.m. on February 5, 2013 that FDEP made a Technical Support Document available. No extended comment period has been granted.
III. Omission of Water Quality Criteria Parameters
Completely omitted from the proposed water quality criteria are criteria for Asbestos, Methylmercury (in fish tissue), and Dioxin. If FDEP fails to promulgate criteria for these parameters, EPA may have to promulgate new or revised criteria for these parameters.
EPA currently recommends a water quality criterion for Asbestos of 7 million fibers per liter for water and fish consumption uses based on the maximum contaminant level for drinking water. National Recommended Water Quality Criteria – Human Health Criteria Table (http://1.usa.gov/PMPLKz). See List of Contaminants and their MCLs-Inorganic (http://1.usa.gov/PMQ0FB).
FDEP should revise the Table in Rule 62-302.530 to include the EPA recommended criterion for Asbestos in Class I waters.
In the proposed revisions to the Table in Rule 62-302.530, the criteria for Mercury remains unchanged. The values have their origin in EPA’s Ambient Water Quality Criteria for Mercury – 1984 (http://1.usa.gov/OBouv4). Those values are based on a Food and Drug Administration (FDA) “action level,” rather than a reference dose (RfD) or cancer potency factor (CPF). The methods used by EPA to derive the criteria for Mercury in 1984 have since been abandoned and replaced by a new method.
In 2001, EPA published Water Quality Criterion for the Protection of Human Health: Methylmercury(http://1.usa.gov/P4AJMo). Therecommendedcriterionformethylmercuryisbased on a RfD of 0.1 μg/kg/day. The fish tissue criterion of 0.3 mg methylmercury/kg fish “is the concentration in fish tissue that should not be exceeded based on a total fish and shellfish consumption-weighted rate of 0.0175 kg fish/day.” Guidance for Implementing the January 2001 Methylmercury Water Quality Criterion (2010) (http://1.usa.gov/P4D4XL) at xvi.
“With the publication of the 2001 fish tissue criterion, EPA withdrew the previous human health water quality criterion for mercury as the recommended section 304(a) water quality criterion for states and authorized tribes to use as guidance in adopting water quality standards . . .. These water column criteria, however, may be temporarily part of revised mercury criteria until the triennial review that follows the criterion adoption to help the transition in implementing the fish tissue criterion.” Id. at 20 (emphasis added).
EPA recommends that when states and authorized tribes adopt new or revised methylmercury water quality criteria, they adopt the criteria in the form of a fish tissue methylmercury concentration. This is the preferred form for the following reasons:
Id. at 22.
- ! A criterion expressed as a fish tissue concentration is closely tied to the “fishable” designated use goal applied to nearly all waterbodies in the United States.
- ! A fish tissue concentration value is expressed in the same form (fish tissue) through which humans are exposed to methylmercury.
- ! A fish tissue concentration value is more consistent with how fish advisories are issued.
- ! At environmentally relevant concentrations, methylmercury is currently easier to detect in fish tissue than in water samples.
FDEP has not proposed to adopt a fish tissue criterion for Methylmercury. FDEP claims to have “addressed the mercury issue by recently completing a Statewide TMDL for mercury.” Technical Support Document: Derivation of Human Health-based Criteria and Risk Assessment (Nov. 2012) at 53. According to FDEP’s website
(http://www.dep.state.fl.us/water/tmdl/draft_tmdl.htm#mercury) however, the mercury TMDL remains draft. In any case, the draft Mercury TMDL for the State of Florida (Oct. 29, 2012) (http://bit.ly/SpqVRm) relies on narrative “free-from” water quality criteria, id. at 5, not numeric fish tissue Methylmercury concentrations as recommended by EPA. Moreover, a mercury TMDL is not a substitute for a water quality criterion.
Accordingly, FDEP should revise the Table in Rule 62-302.530 to include the EPA recommended criterion for Methylmercury in fish tissue adjusted for Florida’s higher fish consumption rate.
FDEP currently has no water quality criteria for Dioxin and does not propose any. The EPA- criteria for Dioxin in Florida promulgated in 1992 (40 C.F.R. § 131.36(d)(6)) is based on a fish consumption rate of only 6.5 grams per day. EPA’s current recommended water quality criteria for Dioxin (2,3,7,8-TCDD) are 5.0E-09 ug/L for water and fish consumption uses and 5.1E-09 ug/L for water consumption uses alone. National Recommended Water Quality Criteria – Human Health Criteria Table (http://1.usa.gov/PMPLKz). These recommended criteria are based on a cancer slope factor (q1*) equal to 1.56E+05 (mg/kg-day)-1 published in Ambient Water Quality Criteria for 2,3,7,8-Tetrachlorodibenzo-p-dioxin (1984) (http://1.usa.gov/TZIY0Q) and a national default fish consumption rate of 17.5 grams per day adopted by EPA in Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000) (http://1.usa.gov/TZI8kQ).
FDEP should revise the Table in Rule 62-302.530 to include the EPA recommended criteria for Dioxin adjusted for Florida’s higher fish consumption rate (including protection of high-end consumers, e.g., 99th percentile, at 10-4 cancer risk level).
The excuse that FDEP should defer promulgation of Dioxin criteria because EPA is conducting a reassessment of Dioxin might be acceptable if we had confidence that the EPA reassessment might be concluded in a reasonably short time-frame. However, EPA has been “reassessing” the toxicity of Dioxin since 1991. History of Dioxin Regulation & Reassessment (http://bit.ly/TZILuT). See Dioxin (http://1.usa.gov/TZJSKQ). There is no basis to assume that the reassessment will be concluded within one or even two years. In the meantime, FDEP has no criteria for Dioxin and the EPA criteria promulgated for Florida in 1992 are under-protective because of the 6.5 grams per day fish consumption rate.
Accordingly, FDEP should revise the Table in Rule 62-302.530 to include the EPA recommended criteria for Dioxin in fish tissue adjusted for Florida’s higher fish consumption rate.
The current FDEP criteria for Arsenic (total) are 510 μg/L for Class I waters and 550 μg/L for Class II and II waters. The 550 μg/L criterion was the maximum contaminant level for drinking
water promulgated by EPA in 1975. The 510 μg/L criterion was the maximum contaminant level for drinking water promulgated by EPA in 2001. Fact Sheet: Drinking Water Standard for Arsenic (Jan. 2001) (http://1.usa.gov/VSX5oH). EPA’s current recommended water quality criteria for Arsenic based on a fish consumption rate of 6.5 grams/day are 0.018 μg/L for consumption of water and fish consumption and 0.14 μg/L based on fish consumption alone. National Recommended Water Quality Criteria – Human Health Criteria Table (Http://1.usa.gov/pmplkz); NRWQC: Human Health Criteria Calculation Matrix (Nov. 2002) (http://1.usa.gov/PMQaga). Alabama’s criteria are 0.1205 μ/L and 0.3030 μ/L for consumption of water and fish and consumption of fish, respectively, based on 30 grams/day fish consumption and 10-5 cancer risk level. EPA is allegedly in the process of revising the recommended human health ambient water quality criteria for Arsenic. Human Health Criteria: Arsenic (http://1.usa.gov/VT1sjB).
FDEP should calculate new criteria for Arsenic based on an oral slope factor of 1.5E+00 (mg/kg)/day as reported in EPA’s Integrated Risk Information Service (http://1.usa.gov/VT3LmA), bioaccumulation data reported in Technical Summary of Information Available on the Bioaccumulation of Arsenic in Aquatic Organisms (Dec. 2003) (http://1.usa.gov/VT3D6G), and adjusted for Florida’s higher fish consumption rate.
V. Shrimp Habitat Apportionment
FDEP has proposed to exclude 44% of shrimp consumption because 44% of shrimp inhabit and are harvested from marine waters. The exclusion is inappropriate under current EPA guidance and under EPA comments to FDEP.
EPA directs that states assume that 100% of a person’s fish consumption is derived from local waters. Thus, 100% of the shrimp consumed by Floridians must be assumed to come from near shore environments. Indeed, many Floridians may only consume near-shore shrimp. Since FDEP cannot establish that every person consumes 44% of their shrimp from marine waters, it cannot exclude 44% of shrimp consumption.
Accordingly, FDEP should not exclude 44% of shrimp consumption in the development of the fish consumption rate distribution.
For the foregoing reasons, FDEP has additional work to do before it can propose water quality criteria for the protection of human health that are not arbitrary.
David A. Ludder 6