The Florida Department of Environmental Protection (DEP) has postponed the March 22nd meeting of the Environmental Regulation Commission (ERC) until sometime in April. An exact date has not been set as of today.
This is the meeting where the ERC will decide whether to accept the Rick Scott administration’s plan to radically increase the amount of carcinogens that polluting industries can dump into Florida’s waters. This means Florida fish, shellfish, swimming waters and drinking water sources will be allowed to contain much higher levels of carcinogenic toxic chemicals. In other words, industry will be allowed to externalize their cost of disposing of toxic chemicals on us, our rivers and estuaries and our wildlife. This is WRONG!
If you would like to make your voice heard you can sign on to the following letter that the Clean Water Network of Florida is sending to the Governor by Sunday, March 3rd. You can also send your own letter. If you want to sign on to this letter, then send an email to:
firstname.lastname@example.org which includes your name and city and you will be added. You may also sign on as a business or organization.
HERE’S THE LETTER TO GOV. SCOTT
March 4, 2013
Governor Rick Scott Governor’s Office The Capitol Tallahassee, FL 32399
Secretary Hershal Vinyard Florida Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399
Re: Triennial Review
Dear Governor Scott:
This letter is submitted by Florida Clean Water Network, which includes approximately 300 Florida organizations and several thousand individual members. We are writing in regards to the Florida Department of Environmental Protection’s (FDEP’s) proposed revisions to Florida’s water quality standards through the Triennial Review.
In the following comments we will provide:
- Human-health based toxics rule additions/revisions proposed by DEP are largely not adequately protective of public health, especially for children, pregnant women, and sub-populations that consume a high amount of fish.
- DEP’s rule proposal will increase the allowable levels of carcinogenic toxins in Class I, II and III waters (drinking, shellfishing, swimming, fishing) for most parameters. Revisions to current water quality criteria will result in 23 criteria for carcinogenic toxins being weakened. Forty-five new criteria for carcinogenic toxins will be regulated at less-stringent levels than EPA recommends for the national average, which is already not protective of Floridians who eat more fish than the average American. Only six criteria are proposed to become more stringent than today.
- Several human-health toxic chemicals are being completely ignored in this Triennial Review (including dioxin, mercury and arsenic).
- DEP is changing the criteria for many pollutants from single-sample maximums to monthly or annual averages, which radically weakens Florida’s water quality standards and will allow even more pollution into our water.
Secretary Vinyard may have recently briefed you on these proposed revisions, and may have presented a different perspective than we offer. While we are aware that you are very focused on maintaining a business-friendly environment for Florida and we share that goal, it must be in harmony with a healthy environment and should not compromise the health and well being of our citizens or our natural systems. We believe that many of DEP’s proposed additions and revisions to Florida’s water quality standards in Chapters 62-302.530, F.A.C. are a direct threat to public health and will perpetuate the decline of our natural systems and fisheries. While DEP’s proposal apparently has the support of regulated industries, short-term public policy geared to the financial gains of a very narrow segment of Florida’s economy will eventually cost all of us far more than they will benefit the few.
Insufficient Comment Period
On February 5, 2012 the Florida DEP held a public workshop at which they revealed extensive revisions to their previous proposed changes and additions to Florida’s water quality standards. The technical support document (TSD) for the human health-based toxics criteria was not ready and was actually not available to the public until eight hours before the deadline to submit comments on February 12th. One week was obviously not adequate time to conduct a meaningful review of the extensive and radical changes to Florida’s water quality standards and submit comments and meet legal requirements for any future actions we may need to take to protect our health and rights promised by the Clean Water Act, even if the TSD had been available for a week. Fortunately after receiving hundreds of emails that protested the flicker of a comment period, FL DEP reopened their comment period until March 4th.
Our attorney David Ludder has submitted our initial comments and we incorporate them by reference. This comment letter is not intended to be technical, but rather to explain our concerns and objections in simple, easy to understand language. Mr. Ludder may be submitting more technical comments when he has had adequate time to review the TSD that was just made available by DEP on February 12th.
Our issues with this Triennial Review include but may not be limited to the following:
Human health-based toxics criteria:
Currently Florida’s toxics criteria are based on a fairly straightforward and simple formula that is also used by the US EPA[i] and most (if not all) states. DEP calls this a “deterministic approach”. In its desperate attempt to find some scientific justification for the extreme weakening of our water quality standards that is being demanded by large polluting industries (such as pulp and paper, phosphate, electric power companies, sewage plants, etc.) DEP has moved to a Monte-Carlo type statistical analysis to determine the limits for toxic chemicals that can legally be discharged and exist in our drinking water sources, shellfish-harvesting waters and the waters where we fish and swim. This is what DEP calls a “probabilistic risk-based approach”. This type of number crunching is confusing and impossible for an ordinary citizen to make sense of. However, it does provide cover for DEP’s scheme to weaken protection for Florida’s waters and public health. We strongly object to DEP using its “risk-based”/Monte Carlo approach.
On February 18, 2013, the UF/IFAS released a report from a survey on adult Floridians’ opinions about water. The survey found that when respondents were asked to assign levels of importance to 16 water-related topics such as “plentiful water for cities” and “clean groundwater,” residents rated having “clean drinking water” most important. In fact, 93% said clean drinking water is their #1 concern. You can find the water survey and results at a special IFAS water report website: http://www.piecenter.com/water/.
Yet, we see in the DEP’s proposed rule revisions/additions a plan to drastically weaken our drinking water protections. For instance consider the toxic chemical Benzene. Benzene is a notorious cause of bone marrow failure. Substantial quantities of epidemiologic, clinical, and laboratory data link benzene to aplastic anemia, acute leukemia, and bone marrow abnormalities. The specific hematologic malignancies that benzene is associated with include: acute myeloid leukemia (AML), aplastic anemia, myleodysplastic syndrome (MDS), acute lymphoblastic leukemia (ALL), and chronic myeloid leukemia (CML).
The American Petroleum Institute (API) stated in 1948 “it is generally considered that the only absolutely safe concentration for benzene is zero. The US Department of Health and Human Services (DHHS) classifies benzene as a human carcinogen. The United States Environmental Protection Agency has set a maximum contaminant level (MCL) for benzene in drinking water at 0.005 mg/L (5 ppb), as promulgated via the U.S. National Primary Drinking Water Regulations.This regulation is based on preventing benzene leukemogenesis. The maximum contaminant level goal (MCLG), a nonenforceable health goal that would allow an adequate margin of safety for the prevention of adverse effects, is zero benzene concentration in drinking water. It is abundant in Florida’s groundwater where underground storage tanks are leaking. Here’s DEP’s proposal for changes to Benzene for your consideration:
Current Fl criterion for Class I drinking water:1.18 ug/l (ppm) single-sample max DEP’s proposed criterion for drinking water source: 2.9 ug/l annual average EPA’s recommended criterion for drinking water source: 2.2 ug/l single-sample maximum Alabama’s criterion for drinking water: 1.12 ug/l single-sample maximum Current Florida criterion for Class III waters: 71.28 ug/l single-sample maximum DEP’s proposed criterion for Class III waters: 86 ug/l annual average
Another familiar chemical that merits attention is Chloroform. Here are the proposed changes for this toxin:
Current Florida criterion for drinking water source: 5.67 ug/l (ppm) DEP’s proposed criterion for drinking water: 46 ug/l EPA’s recommended criterion for drinking water: 5.7 ug/l Alabama’s criterion for drinking water: 5.43 ug/l
Let’s look at Carbon Tetrachloride, another carcinogen. Acute inhalation or ingestion can also cause liver and kidney damage, which in severe cases may lead to coma and death.
Here is what is proposed for its regulation in Florida by the DEP:
Current Florida criterion for drinking water source: .25 ug/l DEP’s proposed criterion for drinking water: .56/ug/l EPA’s recommended criterion for drinking water: .23 ug/l Alabama’s criterion for drinking water: .21 ug/l
Another example to consider is Bromoform, a known carcinogen and our primary route of exposure is through our drinking water, yet here’s the DEP proposal:
Current Florida criterion for drinking water source: 4.3 ug/l DEP’s proposed criterion for drinking water: 9.5 ug/l EPA’s recommended criterion for drinking water: 4.3 ug/l Alabama’s criterion for drinking water: 4.19 ug/l
A final example of the many that are available is Tetrachloroethene, another carcinogen. Here’s the proposal by DEP:
Current Florida criterion for drinking water source: 0.8 ug/l DEP’s proposed criterion for drinking water: 5.0 ug/l[ii] EPA’s recommended criterion for drinking water: 0.69 ug/l Alabama’s criterion for drinking water: 0.603 ug/l
Tetrachloroethene (dry-cleaning fluid) is a common soil contaminant in Florida. Because of its mobility in groundwater, its toxicity at low levels, and its density (which causes it to sink below the water table), cleanup activities are more difficult than for oil spills.
The Florida Cancer Lottery
If you take a few minutes to peruse the attached chart that has been provided by the DEP, you will see that there are many other unhealthy changes being proposed by your agency. The limits for most of these carcinogenic toxic chemicals for fish tissue are also being increased dramatically. How does it make sense in today’s world, where we know more and more by the day about the effects these chemicals have on humans, to actually increase the allowable amount in our food and water? Is it worth reversing public health protections for the status of being the most dirty-industry-friendly state in the nation? If DEP’s proposed changes for carcinogens, to our water quality protections were put to a public vote, how many Floridians would vote to allow higher levels in our surface waters?
Being a citizen of the State of Florida is not a crime. The State does not have the legal authority to take human life without probable cause and due process of law with a punishment appropriate to the crime, even to subsidize commercial enterprise by not regulating its discharge of carcinogens down to natural background levels. Without the ability to identify who will live and who will be injured or killed in this state-sponsored cancer lottery, the state will be taking a lives without probable cause and due process with a punishment appropriate to the crime.
By analogy, a commercial entity is not allowed to mismanage the storage, manufacture, or disposal of petroleum products in such a way that runoff from the facility creates an oil slick on a nearby road that is inherently dangerous and needs to be cleaned up at the commercial entity’s expense. The fact that the state doesn’t know in advance who will be injured or killed by this inherently dangerous and negligent act is not a mitigating consideration. However, if someone is injured or killed as a consequence of the negligence of this private commercial entity, the injured party or his or her survivors can seek adequate and timely compensation for the consequences of this negligence in the courts.
Conversely, adequate and timely compensation for injury or untimely death is denied to the injured party or his or her survivors in the state-sponsored cancer lottery, because allowing dilution to be the solution to pollution, contrary to the philosophy and policy embodied in the Federal Clean Water Act, blurs the causal link. Nature then reverses the state’s misguided policy by bioconcentrating, bioaccumulating, and biomagnifying the toxins up the food chains.
Effects of Toxics on Children
In January EPA released the 3rd edition of their report titled America’s Children and the Environment, which presents key information on environmental stressors that can affect children’s health. The report shows the status and trends of:
- Environments and Contaminants (contaminants in air, water, food, and soil and other environmental conditions),
- Biomonitoring (chemicals measured in the bodies of mothers and children), and
- Health (childhood diseases and health outcomes).
You can find the full report at the following link:
For the first time since the ACE series began in 2000, the draft cites extensive research linking common chemical pollutants to brain damage and nervous system disorders in fetuses and children. It also raises troubling questions about the degree to which children are exposed to hazardous chemicals in air, drinking water and food, as well exposures in their indoor environments – including schools and day-care centers – and through contaminated lands.
Public health officials view it as a source of one-stop shopping for the best information on what children and women of childbearing age are exposed to, how much of it remains in their bodies and what the health effects might be. Among the “health outcomes” listed as related to environmental exposures are childhood cancer, obesity, neurological disorders, respiratory problems and low birth weight. The report cites hundreds of studies — both human, epidemiological studies that show a correlation between exposure to certain chemical pollutants and negative health outcomes, and animal studies that demonstrate cause and effect.
The EPA states that the report is intended, in part, to help policymakers identify and evaluate ways to minimize environmental impacts on children.
That’s an unwelcome prospect to the $674 billion chemical industry, which stands to lose business and face greater legal liability if the EPA or Congress bans certain substances mentioned in the report or sets standards reducing the levels of exposure that is considered safe.
Among other findings, the report links numerous substances to ADHD, including certain widely available pesticides; polychlorinated biphenyls (PCBS), which were banned in 1979 but are still present in products made before then and in the environment; certain polybrominated diphenyl ethers (PBDEs), used as flame retardants; and methyl mercury, a toxic metal that accumulates in larger fish, such as tuna. The draft also cites children’s exposure to lead, particularly from aging lead water pipes, as a continuing problem.
Among the other widespread contaminants linked to learning disabilities is perchlorate, a component of rocket fuel, fireworks and other industrial products, which has polluted water around the country.
One of the new sections of the report notes that children may be widely exposed to pollutants in schools and day-care centers. Among them are pesticides; lead; PCBs; asbestos, a mineral fiber long used as insulation and fire-proofing; phthalates, chemicals that are used to soften vinyl and as solvents and fixers, and are found in numerous consumer goods, among them: toys, perfumes, medical devices, shower curtains and detergents; and perfluorinated chemicals, which are used in non-stick and stain-proof products. The study notes that these substances are (variously) associated with asthma, cancer, reproductive toxicity and hormone disruption.
Governor, we realize that you don’t have the ability to protect our children from all of these exposures. Before you today is simply the opportunity to limit exposure to a handful of toxic chemicals through drinking water, fish that we eat and waters that we bathe and swim in. Many are mentioned in the above paragraphs. Not only are DEP’s proposed rules insufficient to protect public health, DEP’s rules do not account for the fact that the impact of these chemicals are compounded when we are exposed to multiple chemicals, which obviously happens daily. It defies common sense and decency to increase the allowable amount of these chemicals in our food and water. We should only be moving toward less exposure in light of the mountain of research that proves the public health adversities that result from exposure.
The only people that have a chance of a good outcome in Florida’s Cancer Lottery will be white, over-weight, men who eat very little or no fish and have the resources to obtain their water from alternative sources. We know from DEP’s own research that some minorities and lower income residents of Florida eat large amounts of fish, that pregnant women and fetuses are extremely vulnerable and that there are effects far beyond cancer that these chemicals impose on our children.
Is there no limit to the sacrifices that individuals are expected to make in order to maintain corporate profit margins at exorbitant levels by externalizing their wastes? When regulating toxic substances, once you accept the concept that people are expendable and should “take one for the team” in order for some people to obtain and retain the benefits of modern life, it is a slippery slope because the only bounds that the corporate world will respect are those that we the people impose and enforce.
Single-sample maximums vs. Monthly or Annual Averages
Another less obvious but equally disturbing strategy that DEP employs in its proposed changes to our water quality standards is the shift from using single-sample maximums to monthly or annual averages. This is a HUGE weakening strategy that must not be allowed. It renders many of our criteria meaningless. Some examples include but are not limited to the following:
Antimony, Benzene, Aldrin, 2-chlorophenol, 2-4 dichlorophenol, 2-4 dinitrophenol, Acenaphthene, Anthracene, Fluoranthene, Fluorene, and Pyrene.
Inconsistent Use of Methodologies
Another outright devious method that DEP employs to justify using the least protective criteria possible is to abandon their Monte-Carlo methodology from time to time and use the “Aquatic Life” criteria. In these cases, the aquatic life criteria (using EPA’s “deterministic approach”) turns out to be more protective than using DEP’s “Monte-Carlo” methodology for human-health. For these chemicals, many carcinogens, DEP chooses the “deterministic approach” in hopes that EPA will allow it because the aquatic-life number is the bare minimum that EPA accepts. EPA’s aquatic life limit is far less stringent than its human-health based limit, which DEP is rejecting. There are three problems with this devious strategy: 1) It is underhanded and devious; 2) It is inconsistent; 3) It results in a criterion that is extremely higher than EPA recommends for protecting human-health. This type of duplicitous behavior has no place in taxpayer funded public health policymaking. We hope that you will reject this strategy.
The toxic chemical limits that are manipulated by using the EPA’s Aquatic Life criteria instead of human health include:
Acrolein, Chlordane, Endosulfan, Endosulfan sulfate, Endrin, Dieldrin, Pentachlorophenol, Selenium, and Toxaphene.
Omission of Water Quality Criteria Parameters
In spite of our continued pleas for inclusion, the Triennial Review completely omits any pollution limits for some of the most deadly toxic chemicals including:
* Mercury[iii] – Florida should replace its outdated, under-protective 12 ng/L THg in unfiltered surface water that cannot be demonstrated to be adequately protective of human health with a human-health based criterion. If Florida does not promulgate a revised mercury WQS as or more protective of human health when derived with exposures appropriate to typical and subsistence Florida consumers of salt and fresh water sport and commercial fish and shellfish species, USEPA Region 4 must fill that regulatory void under its authorities and responsibilities pursuant to the Federal Clean Water Act.
* Dioxin – for any class of water. Florida has a dioxin criterion at the present time that was promulgated for us by the US EPA because Florida has consistently refused to set its own criterion that is protective of human health. However, EPA’s criterion of 0.014ppq is based on a national average for fish consumption of 6.5 grams/day and we know from many studies (including DEP’s in Florida) that Floridians eat much more fish than the national average. If DEP calculated a dioxin criterion using its new “risk-based” approach, our state criterion would get MUCH less protective that EPA’s outdated criterion. So we would like to see new criterion for dioxin, calculated by using the “deterministic” approach and a fish-consumption factor that is relevant to the amount of fish that Floridians actually eat. A chart is provided (attached) that shows results from a study that was paid for by Florida DEP for this rule development.
Since EPA promulgated a dioxin criterion for Florida in 1993, the state has never implemented or enforced this criterion, in spite of its promise to Clean Water Network of Florida and the US EPA to do so. This is documented in the US EPA determination document, dated 2008 that was sent to Clean Water Network of Florida in response to our Petition to Withdraw Florida’s Delegated Authority to Administer the Federal NPDES Program. This implementation and enforcement would come through the writing and enforcement of NPDES permits to facilities that discharge or have the potential to discharge dioxin into waters of the state, such as pulp and paper facilities. Florida steadfastly refused to set a dioxin limit in these permits below 10.0 ppq, which is quite a bit higher than the current criterion of 0.014 ppq. Florida does not have the option of ignoring the Clean Water Act, even though the state does quite often and gets away with it, sadly enough. If DEP refuses to include dioxin, mercury and arsenic in this Triennial Review then we will petition EPA to update the state’s promulgated criterion for dioxin and to promulgate criteria for the other toxics that are being ignored.
In reality, the people of Florida will likely get better protection from a federally promulgated criterion and perhaps this is the best route anyway. However, as Governor of Florida we would like for you to be informed about this dereliction of duty by your agency, and to have an opportunity to correct it. You will likely not hear much about this issue from Mr. Vinyard or his staff.
* Arsenic – for drinking waters or Class III fresh waters – DEP is only using the current MCL and not the health-based limits. The current limit, which is not changing, is based on an old MCL that no longer exist.
* Asbestos – 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.
Transparency criteria –
DEP is proposing to render Florida’s criterion for transparency effectively meaningless. Currently the rule for transparency in Chapter 62-302.530 is very straightforward and easy to implement. It is a single sample maximum and there is no limit on how many samples can be taken and used for analyses. It says this:
“Shall not be reduced by more than10% as compared to the natural background value.”
In this Triennial Review, DEP proposes to eviscerate any meaningful regulation of transparency in our waters. The proposed new language says:
“The annual average value shall not be reduced by more than 10% as compared to the natural background value. Annual average values shall be based on a minimum of three samples, with each sample collected at least three months apart.”
This is another radical change that is obviously placed as a sweetheart-gift to several major polluters in Florida that have transparency issues with their permits. It is also necessary to accommodate the algae and degradation that will continue to worsen as a result of Florida’s new lax nutrient criteria. As nutrients are allowed to increase and cause more and more toxic algal blooms, transparency will continue to be compromised. Without this extreme weakening of this criteria, the high nutrient loading will cause constant transparency violations. We object to this change in the Transparency criterion and would like to see it stricken from the proposal.
Dissolved oxygen criteria –
The dissolved oxygen (D.O.) criteria are being weakened in most of the state for the same reason that Transparency is being severely weakened. As nutrients continue to cause water quality degradation through algal blooms, the dissolved oxygen will continue to decline in our waters. Also over pumping of our aquifers leaves low-flow conditions, which reduces dissolved oxygen levels. In order to avoid labeling these waters as “impaired” and “not meeting designated uses” it is essential that our criterion be weakened. We object to the state’s policy of changing the definition of “polluted/impaired” waters in order to avoid the chore of requiring reduced pollution or even creating the perception that everything isn’t quite right. The basis for changing the D.O. criteria is not scientific and we request that if any changes are made to the current criteria that it be to make it more protective of our waters.
Adverse Consequences of Proposed Revision to the Dissolved Oxygen Water Quality Criteria:
- No or inadequate Margin of Safety for high oxygen- demand fish
- Decreases growth potential & increases other stressor risks
- Shifts burden of proof to the public to prove a water body is underprotected by the revised Dissolved Oxygen water quality criterion without providing a mechanism for petitioning FDEP for same.
In short Governor, the citizens of Florida want clean, safe water. We do not want our state to have the weakest drinking water standards and the most toxic fish in the nation. We don’t want to participate in the Florida Cancer Lottery that your DEP seems to be creating. We object to Florida’s biggest polluters having a disproportionate amount of power and influence over water policy decisions. The major problem with DEP’s proposal is the methodology they are using. If they are required to stick with their current method of calculating toxic chemical limits, the same method used by EPA and most if not all other states, then Floridians will have better health protection and our resources will be better protected. As the final decision maker on this issue, we expect you to cast your vote in the public interest and reject these radical, anti-public health proposals.
The following organizations endorse these comments and respectfully request your consideration.
Linda L. Young Director Florida Clean Water Network P.O. Box 5124 Navarre, FL 32566
[i] EPA limits, which are themselves inadequately protective of Floridians, who consume more salt and fresh water fish and shellfish than the national averages used by EPA. Both agencies also treat each carcinogen as if it acted independently of all the hundreds of others to which we are being exposed simultaneously, when that is not the case, so the real combined lifetime increased cancer risks are more likely in the range of one-in-one hundred to one-in-ten than from one-in-one million to one-in-one hundred thousand, and that’s the difference between a trade-off you might be able to live with and a trade-off to die for.
[ii] There are discrepancies between DEP’s documents for some of these criteria, such as Tetrachloroethene. In the table for Chapter 62-302.530 it has 5.0 micrograms/L for drinking water sources but in Table I (handout from DEP) it says 17 micrograms/L. DEP explains verbally over the phone that the default number is always the one in the draft Chapter 62-302.530, F.A.C.
[iii] Mercury and methylmercury are not technically carcinogens but may amplify the carcinogenic potency of known carcinogens by interfering with damaged DNA repair or immunosurveillance of transformed cells in various stages of carcinogenic development, a critical immune system function.