DEP coverup? Agency failed to provide proper notice for new water poison standards hearing; misrepresented public notice law in court

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. 

Click here to read Clean Water Network’s rebuttal to DEP’s new rule

by Linda Young/Clean Water Network
The hearing on DEP’s efforts to dismiss all four petitioners who are challenging the proposed human health based toxics criteria was held last Wednesday and did not disappoint us in any way.  Judge Canter with the Division of Administrative Hearings did his best to get all the legal arguments and factual information out on the table so he can go off in a quiet corner of his office (I’m guessing here) and try to sort it all out and make some sense of it.

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:

1. DEP published the first notice for the new rule and the ERC adoption hearing on June 30.* Shortly afterwards, DEP received a letter from JAPC, telling DEP that the notice was deficient in a number of ways, but most importantly it called DEP’s notice “incomprehensible” to the general public.
2. DEP was required to publish its notice at least 28 days before the ERC hearing took place**, however the hearing was held on July 26 which was only 26 days after the notice was published.The DEP attorney, Francine Folkes (who I have found over many years to be a dishonest person in court, always willing to make up legal arguments that are completely unfounded in the law.She has said some real doozies over the years and added to her long list of fantastic legal fabrications during this hearing) tried to tell the judge that the 28 day requirement was really only 14 or 21.She was shameless as she tried to mix and match notice requirements for workshops, hearings and other bureaucratic actions.It would have been shocking to me to hear a DEP attorney lie to a judge if I hadn’t seen her in action many times before.She actually reminded me of a rat, running from one hole to another, looking for a way to cover up her agency’s behavior.
The Petitioners’ attorneys did a good job of rebutting her, especially the attorney representing Martin County, Ruth Holmes.  Then, on the same day a few hours later the Seminole Tribe submitted to the record (and the judge of course) some case law that clearly states that the ERC hearing is the agency action that the statute is referring to.  BAM!!! Nice blow to our lying state agency.
3. DEP then republished the notice on August 4th, making it somewhat more understandable, but still not fulfilling the requirement of Chapter 120.54 F.S. where it says that the agency shall “provide a short, plain explanation of the purpose and effect of the proposed rule.”  A good bit of the three hour hearing was spent arguing over whether this notice provided a point of entry to challenge the rule and that is a big part of the judge’s job at this point – figuring that out. His job was made easier a few hours later when the Seminole Tribe also provided a case where the court found it was proper to invalidate a rule when the agency had not provided a short and plain statement of the purpose of the rule.  BAM!!! Another nice blow to our incompetent DEP attorneys.
4. The judge told us that he had not only never seen a situation like this, but no one that he had talked to at DOAH had ever seen anything like it.He could not find any case law to guide him. He asked all the attorneys in the room if they knew of any similar cases and no one did. Of course DEP tried to suggest a case that actually was not similar, but that misleading effort was exposed.
So, in short, DEP has fumbled this rulemaking so badly, that there is no precedent.
Our state agency, which we all pay for through our taxes, has either purposely or accidentally created a tangled web around a very important issue – whether or not our state government will be allowed to significantly increase the amount of toxic chemicals – many of them carcinogenic – that big polluters (such as the pulp and paper industry and many others) can dump in our water.
Whether through incompetence or deliberate deceit, our governor and his agency are doing everything in their power to force these chemicals on us, our wildlife, and our future.  THIS IS WRONG!!!

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.

**The notice shall be published in the Florida Administrative Register not less than 28 days prior to the intended action. The proposed rule shall be available for inspection and copying by the public at the time of the publication of notice.

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.

Linda Young has been the executive director of the Florida Clean Water Network for 22 years, working to protect water quality and helping citizens have a voice in decision making that affects their community waters.  For more info contact her at llyoung2@earthlink.net and learn more about this issue at: floridacleanwaternetwork.org

 

Leave a Reply