1. Florida

Judges dismisses challenge to toxin rule; Martin County says DEP 'will punish'

Published Sep. 14, 2016

Opponents hoping to overturn a controversial rule to allow higher concentrations of toxic chemicals into Florida's water were dealt a setback Tuesday when an administrative law judge dismissed a series of complaints because they missed the deadline for filing the challenge.

The groups, which included the Seminole Tribe of Florida, the City of Miami, Martin County and the Florida Pulp and Paper Association, must now decide if they will challenge the ruling at the District Court of Appeal.

The Seminole Tribe was the first to file the challenge to the new new Human Health Toxics Criteria Rule, which allows for dozens of toxins, including carcinogens, to be allowed in greater concentrations into Florida's rivers and streams.

The rule, which increases the acceptable levels of more than two dozen known carcinogens and decreases levels for 13 currently regulated chemicals, was approved on a 3-2 vote by the Environmental Regulation Commission in July and the groups filed the challenge at the Division of Administrative Hearings, the state-run court that litigates state rules.

The Tribe argued that the rule could endanger the health of tribal members because it fails to take into account the harm they could do to the health of the tribe's subsistence fishermen who rely on fish from Florida's rivers and streams as a primary source of protein.

The City of Miami argued the standard "loosens restrictions on permissible levels of carcinogens in Florida surface waters with absolutely no justification for the need for the increased levels of the toxins nor the increased health risks to Florida citizens."

Martin County argued that the new rules threatened the public's safety, and that the rule should be invalidated because the Department of Environmental Protection didn't follow its own process.

Only the Pulp and Paper Association, whose members rely on discharging chemical-laden water into Florida rivers, argued that the rule was too strict. All parties said the agency violated the proper procedure for establishing the rules.

Judge Bram D.E. Canter, however, disagreed and dismissed the challenges on the grounds that they had not been raised in a timely petition.

"It is concluded that the alleged errors do not establish a basis for excusing an untimely rule challenge petition,'' he wrote.

The lawsuits effectively delayed the ability of state regulators to submit the rule to the federal Environmental Protection Agency for approval. The groups now have 30 days to decide whether to appeal the judge's ruling at the District Court of Appeal level.

Kerri McNulty, assistant city attorney for the City of Miami, said the city was "exploring our options in terms of an appeal" but had not made a decision.

At a meeting of the Martin County Commission late Tuesday, commissioners voted unanimously to hire Florida International University toxicologist Gary Rand to determine the impact the increased concentration of more than 70 chemicals will have on the county's fragile estuaries, which have been inundated this summer by toxic algae blooms.

Whether or not the county decides to appeal the rule, they said they will use Rand's research to help them monitor the impact of the new water standards on surface waters.

But the commissioners also warned there will "be a cost" to their litigation, saying that officials at the Department of Environmental Protection have warned them that if they continue to sue they will lose access to grants the county had hoped to received to address its water-quality problems, including money for septic tank improvements and coral reefs.

"All of us need to be aware that there was punishment, not implied but promised and it was very firm," said Commissioner Ed Fielding during the recorded meeting. "... The administration has been extremely direct in stating if you guys do this you are going to lose."

Commission Chair Anne Scott said the threat was like saying they would be punished if they didn't stop suing. "They say, 'I was going to give you some money with my right hand but if you question what I'm doing with my left hand then I'm not going to give you the money,' " she said. "You can't operate that way. They are not going to give us the money, anyway."

DEP spokesperson Lauren Engle denied the agency attempted to "convey a warning to the county." Instead, before the rule was approved, the state announced it would embark on a cost-sharing initiative with the county to help clean the Indian River Lagoon and the Caloosahatchee River, she said. A threat "was not our message,'' she said.

Martin County spokesperson Gabriella Ferraro responded that "if that is indeed the intent, the county looks forward to working with DEP in completing these water projects."

Laura Reynolds, a water specialist at the Southern Alliance for Clean Energy, said the DEP rule is a demonstration that "our state has been corporately captured and DEP is being used to relax our environmental protections for these influential stakeholders."

The Southern Alliance for Clean Energy has filed a Clean Water Act challenge against Florida Power & Light for the chemical discharges in its cooling canals at the Turkey Point nuclear plant in South Miami-Dade.

She said by allowing increased concentrations of chemicals from industries that discharge pollutants into Florida water, the rule benefits agriculture, Florida's utility industry, the oil and gas fracking industry, and pulp and paper producers.

Reynolds is urging Miami-Dade and Monroe counties to consider intervening in the appeal process with Martin County and the City of Miami because "many of the chemical constituents found in the cooling canal system are proposed to be relaxed" under the rule.

Linda Young of the Florida Clean Water Network, a non-profit environmental advocacy organization that has vigorously opposed the rule, said environmentalists will not stand down in their efforts to get the rule overturned.

"There is not a good reason to increase our risk for getting cancer and other serious diseases from drinking water and eating fish," she said in a statement. "We have a number of options and the attorneys are weighing them right now. We will continue to fight for protection from toxic chemicals in our waters and eventually we will win."