Editor’s Note: Florida’s Environmental Regulation Commission, July 26, lowered pollution criteria for 23 toxins allowed to be dumped in Florida waters, 18 of which are known carcinogens. The new standards were developed by Florida’s Department of Environmental Protection. Under the same new rule, DEP also set criteria for 39 new chemicals that previously had no limits.
The new rules are in response to new U.S. Environmental Protection Agency standards, issued last year, based on updated science. Some of DEP’s new guidelines, including allowable PCB levels, are higher than EPA’s.
Martin County, the City of Miami, and the Seminole Tribe are suing DEP, saying the new standards are dangerous to human health; that proper public noticing procedure was not followed; and that the ERC commissioner seats designated for local government and the environmental community were not filled by Governor Rick Scott in time for the July 26 vote. Various corporations in the pulp and paper industry are also suing DEP, protesting the new standards are too high.
After three hours of mostly intelligent discussion, the judge ruled that the case is on hold (abated) until he issues a written order on DEP’s motions to dismiss. The arguments were limited to the issue of timeliness (vs standing) as that was complicated enough for now. And it’s a huge issue. In the meantime, the judge suspended any further discovery between the parties, since the whole thing could be over if he rules in favor of DEP’s motions OR if he decides that DEP’s notice was fatally flawed and throws out the whole rule. I, for one, am eagerly awaiting his ruling which could be issued any minute now.
I apologize for the delay in getting this report to you as I had some computer problems last week.
One of the highlights of the hearing last week – at least to me – included the judge’s reactions to the various legal arguments made by the different parties. I watched his face carefully, as he held his cards close to his chest. There were many moments that his expression went from dismay to disbelief to amusement. And if you saw the hearing on the Florida Channel or were there in person, you could understand why.
As it turns out, this case seems to be truly unique in terms of how DEP handled the notice. The judge was generous with his time and allowed all the parties to tell him everything they wanted to say about the facts and the legal issues surrounding them. Here is a brief summary of the more important arguments:
The final point of interest about this hearing was the fact that for this one moment in time, all of the Petitioners were on the same side. That was only for this aspect of the case, as the Pulp and Paper Industry is challenging the rule because they want it to be even more lax, which would not be possible under the Clean Water Act. In their petition, here is what “the pulpers” complain about:
• they complain about how EPA calculates the amount of toxic chemicals that fish absorb;
• they complain about the fish consumption rate that is used (really pulpers?If we eat one fish sandwich a week we have gone over the limit);
• they complain about the way that EPA includes other exposures to toxic chemicals that we all have in our daily lives, when it calculates how much more toxics we can handle in the fish we eat and the water we drink;
• and finally, they complained about the lack of the 28 day notice period. That is the one issue that all petitioners agree on.
The pulpers are not challenging DEP’s methodology because they are the ones that have pushed for it for many years – not only in Florida but in other states, such as Idaho. When the pulp and paper industry was successful in getting Idaho’s state agency (also a very environmentally lax state) to propose the “Monte Carlo/probabilistic” methodology and the lax protections that it brought, the whole thing failed. So Florida is still the guinea pig for this misplaced gambling science.
*(2) RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED RULEMAKING.—
(a) Except when the intended action is the repeal of a rule, agencies shall provide notice of the development of proposed rules by publication of a notice of rule development in the Florida Administrative Register before providing notice of a proposed rule as required by paragraph (3)(a). The notice of rule development shall indicate the subject area to be addressed by rule development, provide a short, plain explanation of the purpose and effect of the proposed rule, cite the specific legal authority for the proposed rule, and include the preliminary text of the proposed rules, if available, or a statement of how a person may promptly obtain, without cost, a copy of any preliminary draft, if available.
(b) All rules should be drafted in readable language. The language is readable if:
1. It avoids the use of obscure words and unnecessarily long or complicated constructions; and
2. It avoids the use of unnecessary technical or specialized language that is understood only by members of particular trades or professions.
Stay tuned friends. We could hear from the judge any minute – even today. I will get back to you immediately after I see his order.