Dear Friends of Florida’s Waters:
You would think that the Florida Department of Environmental Protection (DEP) would expect some feedback, even outrage, over their current efforts to allow more cancer-causing and/or toxic chemicals to be dumped in Florida’s waters. This change in the “numbers” represents a major shift in public policy – long standing policy that has always allowed cancer-causing and/or toxic chemicals to be dumped in our waters, but in quantities calculated to cause (theoretically) no more than one cancer death per one million people.
Now they have new “numbers” that put us at much greater risk for most of these toxic chemicals. For someone who eats just 6 ounces of fish per week (about 5 medium sized shrimp or a small fish fillet) the cancer death risk level can range from one in 500,000 to one in 70,000 for several of the carcinogens on the list. If you eat more than 6 ounces of fish a week, or weigh less than 176 pounds, then you are at much higher risk of getting cancer or some other serious disease or having children with birth defects.
AND REMEMBER, THIS IS FOR EACH AND EVERY CHEMICAL. So, almost all fish in Florida have mercury in them, so that’s just bumped up our risk level a full order of magnitude before we even start testing for any other toxic chemicals.
SO WHY DOES DEP THINK THAT THE CITIZENS OF FLORIDA, LOCAL GOVERNMENTS and BUSINESSES WOULD NOT BE UP IN ARMS OVER THIS? This is a major kick in the teeth to everyone who lives here. This is our state government telling us to take our daily dose of poison and shut-up! This is Rick Scott telling us that we are expendable when there is an opportunity for polluters/industry to save money by dumping their toxic chemicals into waters that we rely on for drinking water, fish to eat, and places to cool off and play with our kids. Gee – that sounds like corporate welfare at the expense of the public!
On Wednesday, August 31st, the DOAH judge will hold a prehearing conference to discuss a schedule for the case. It is unlikely that the judge will rule on the many motions to dismiss that DEP has filed until after this conference. Once the schedule is set (at least for now) there may be other parties, local governments, etc. that will file motions to intervene in the case. These potential interveners will have to demonstrate that they have standing by convincing the judge that they will be substantially affected by the proposed rule.
The pulp and paper companies have argued in their petition that this rule could prevent them from dumping even more chemicals in the water down the road and that is one way that they are substantially affected. Any city or county, business or individual that lives near a pulp & paper company might have standing to intervene. We know just from looking at the “numbers” that DEP is proposing, that 23 of these toxic chemicals will be allowed in higher amounts in our waters and our fish. These chemicals include some you have heard of: benzene, 1,1,2,2-Tetrachloroethane, 2,4,6-Trichlorophenol, Benzo(a)anthracene, Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)fluoranthene, beta-Hexachlorocyclohexane (HCH), Bromoform, Carbon Tetrachloride, Chlordane, Chlorodibromomethane, Chrysene and many more. I wonder how much more toxic chemicals the pulp and paper companies think they should be allowed to dump in our rivers and estuaries? I wonder why we even allow these companies to operate in Florida when they refuse to clean up their pollution and obey our laws.
BACK TO THE SLUG-FEST AT DOAH. The judge will eventually have to sort out the procedural mess that DEP has created with this rule. There are now four different parties challenging DEP’s proposed rule. DEP has filed motions to dismiss all four petitions. The Department claims that they were all filed too late. They also claim that none of the petitioners have “standing” which means they can’t show that they are substantially affected by the rule.
IN DEP’S WORLD – NO ONE CAN SHOW THAT THEY ARE SUBSTANTIALLY AFFECTED BY THIS RULE. REALLY DEP?
AN EXAMPLE – If we compare DEP’s new criteria with EPA’s recommended criteria, using Florida fish consumption rate of 6 ounces a week (remember how little that is) we see that for seven of the carcinogens, our risk level will be one in 70,000 for each chemical. That is if you weigh at least 176 pounds and drink no more than 2.4 liters of water per day.
AND DEP CLAIMS THAT ALL OF THE PETITIONERS WERE TOO LATE IN FILING THEIR PETITIONS. HMMMM . . . Another reason to scratch our heads and wonder what kind of drugs those DEP nincompoops are taking! Here’s DEP’s track record so far on “timing”:
- DEP’s first notice for the ERC hearing was rejected by JAPC (Joint Administrative Procedures Committee) for being “incomprehensible” to the general public;
- DEP’s first notice was not published the required 28 days prior to the actual ERC hearing;
- The ERC (Environmental Regulation Commission) did not have all seven seats filled. Representatives for the environmental community and local governments were left unfilled by Rick Scott who is REQUIRED to appoint appropriate representatives, that must then be approved by the Senate. A third seat was hastily filled right before the ERC meeting with Craig Varn, who left DEP as general counsel just days before being appointed to the ERC. He has not been approved by the Senate!!! He is designated as “lay” citizen on the commission. Since when is an attorney a “lay” person?
- DEP published a second notice of the rule change AFTER the ERC approved the new rule. DEP claims that this second notice didn’t count for anything and couldn’t be considered a “point of entry” for the public to participate.
So, the first notice was incomprehensible to the public, but when they rewrote the notice to make it “comprehensible” and several representatives of the public saw it and petitioned for a hearing, then tough luck. DEP seems to think that you should have known what to do when you read the first “incomprehensible” notice in the Florida Administrative Register.
This is not the first time that DEP has used tricky, “incomprehensible” notices to blindside us and prevent public participation in major decisions about our waters and what can and can’t be dumped into them. Remember a couple of years ago when FL-CWN and several of our member groups filed suit against Rick Scott and the Board of Trustees for giving the Koch Brothers a huge section of the St Johns River for dumping their dioxin-contaminated industrial waste? The basis of that suit was that there was no public notice provided that would have let people know that it was time to object to our public waters being given to the Koch Brothers without any review of whether this was in the public interest and without an assessment of what this “give away” was worth in dollars to us. We are getting nothing in return for their daily exclusive use of this portion of the river. I say exclusive because this portion of the St Johns is now chronically toxic and unsafe for human or animal use.
DEP claimed that a notice that was published many years prior to the Koch Brothers getting a pollution discharge permit, that only talked about wetland impacts from their pipeline to the St Johns River, was supposed to alert us. You can still object to this deception by signing our petition to the US Attorney here:
On August 29, 2016 (yesterday) our pro bono attorney in that case, Steve Medina, gave an interview to radio host Thom Hartman. You can listen to Steve’s really interesting interview here:
I will get a full report out to you after Wednesday. Don’t be surprised if Judge Canter dismisses this whole case and tells DEP to start over. I hope he does and he would certainly have plenty of grounds to do that if he wants to. At a minimum he should tell DEP that it can’t break so many Florida statutes and rules and then tell local governments and the Seminole tribe that they were late and not substantially affected. I will be eagerly awaiting his take on this mess and let you know everything I learn.
For all of Florida’s waters, Linda Young