Seminole Tribe challenges toxin rule, prompting delay
Florida environmentalists are hoping that a legal challenge by the Seminole Tribe of Florida will provide the catalyst needed to force state regulators to redo a controversial rule that raises some of the legal toxin levels allowed to be dumped into Florida's drinking waters.
The Seminole Tribe filed its lawsuit Monday with the state Division of Administrative Hearings, arguing that the new Human Health Toxics Criteria Rule, which was narrowly approved by the Environmental Regulation Commission July 26, could endanger the health of the tribe's members.
The lawsuit effectively delays the ability of state regulators to submit the rule to the federal Environmental Protection Agency for approval. It also gives environmentalists more time to pressure Gov. Rick Scott and state regulators to fix what they consider flaws in the rule that passed by a 3-2 margin. Download Seminole petition
"This rule will not reach EPA for many months now,'' said Linda Young, president of the Florida Clean Water Network in a letter to supporters late Wednesday. "Our focus will be on getting the public educated on what’s happening and getting people to speak out against increasing toxic chemicals in our waters and the fish we eat."
In the meanwhile, Young said her group are asking that the governor appoint three new commissioners to the seven-member ERC board.
There are currently two vacancies on the board, one intended for a representative of the environmental community and another for a representative of local government. Young said they also want Scott to replace commissioner Craig Varn, the former DEP general counsel who was appointed to the board by Scott in March to serve as a "lay person."
"He is a plant, a ringer,'' Young said.
Environmentalists believe that had Scott filled the empty posts the commission would have rejected the rule. They are also demanding that more public workshops be held around the state to increase the public's awareness of the controversial proposal. DEP conducted workshops around the state but none were held in the two most populous counties, Miami-Dade and Broward.
The tribe argued that the rule should not only be invalidated because the agency's decision to move up the scheduled date of the ERC vote violated the state's required 28-day hearing notice, but the tribe also wants the rule rejected because of its potentially adverse effect on the tribe's "subsistence" fishermen who rely on fish from Florida's rivers and streams as a primary source of protein.
The new rule imposes limits on 39 additional toxins and updates the allowed limits on 43 other chemicals dumped into Florida’s rivers, streams and coastal waters, including allowing for higher levels of chemicals with carcinogens and endocrine disruptors.
"The technical supporting document for this rule is devoid of any consideration of tribal fish consumption rates for subsistence purposes,'' the lawsuit reads. "The Seminole Tribal members’ subsistence consumption rate is over 140 grams of fish per week. That is 5 times greater than the consumption rate used for the proposed rule."
A hearing was quickly set in the case for Sept. 6 and 7 and environmentalists hope the judge will either order the Department of Environmental Protection to reverse the rule, or order a new hearing to revise it.
The rule was scheduled to be submitted to the federal Environmental Protection Agency for approval but DEP said Thursday it cannot submit the rule until the lawsuit is resolved.