Sierra Club Calls Upon ERC to Protect Floridians from Toxic Chemicals

Sierra Club Calls Upon ERC to Protect Floridians from Toxic Chemicals

Tomorrow, 7/26/16, the ERC will hear the Florida Department of Environmental Protection (DEP)'s proposal and the comments of many citizens trekking to Tallahassee to protect our waters from toxic pollution. Meeting starts at 9 a.m. Watch live. 

The following letter was sent today from the Florida Chapter by Big Bend Group leader Anne Harvey Holbrook to the Standards Development Section at the Florida Department of Environmental Protection.

Sierra Club Florida acknowledges that it is past time for the Florida Department of Environmental Protection (DEP) to develop surface water quality criteria for the toxic contaminants that are the subject of this rulemaking. However, with this proposed rule, DEP is codifying an open door for water pollution that poses grave risks to human health and the environment.

DEP has been reprehensible in its attempts to push through this rule on an accelerated schedule this summer while much of the state is looking the other way, focused on algae blooms from Lake Okeechobee discharges, and while environmental watchdogs' resources are tied up with that issue. Moreover, DEP is seeking approval from the Environmental Regulatory Commission (ERC) at a time when two seats (including the seat to be filled by someone from the environmental community) on the seven member panel are vacant. At a minimum, we request that DEP delay this rulemaking until Fall as originally scheduled, and hold additional hearings in more locations throughout the state. Otherwise, this rulemaking will be simply the latest effort to trample citizens' concerns and push through regulations that favor industry at the expense of Floridians' health and environment.

Substantively, the proposed rule is insufficiently protective of human health and the designated uses of the Florida's waters. The Department acknowledges that consumption of fish among Floridians is substantially higher than the national average used by EPA in deriving its recommendations. Given this fact, it is therefore puzzling that DEP would propose any standards less stringent than the United States Environmental Protection Agency (EPA)'s recommendations. As apparent justification, the final baseline risk analysis states that the EPA's toxicity values for regulatory risk assessment are "inherently conservative," and therefore risk is overestimated. This assumption of EPA's conservatism is unwarranted, and DEP should independently justify any instances where its standards are less protective than EPA's, especially given that the EPA's risk calculations assume lower seafood consumption and toxin susceptibility than DEP estimates of the average Floridian's exposure.

Moreover, the Department's Final Baseline Risk Analysis states that a probabilistic risk assessment was used to derive the criteria, in order to consider risk factors as distributions. The use of this method has resulted in standards that are less protective than those recommended by EPA. It is particularly mystifying why and how the Department determined that a 1-in-10,000 risk of cancer is acceptable for subsistence fishermen. Additionally, the baseline risk analysis states that separate risk analyses were not developed for children. Children spend more time swimming, are more likely to accidentally ingest water while swimming and be exposed through other pathways, and have a lifetime for bioaccumulating contaminants to build up in their tissues and cause potential health problems. Sierra Club urges DEP to instead develop its criteria using a precautionary principle approach, using the most vulnerable groups of Floridians – including children and subsistence fishermen - as the target for protections.

From a human health perspective, especially for the direct consumption of Class I waters as drinking waters, it is unclear why DEP would set any of its standards to be less protective than that of EPA's recommended human health criteria. At the very least, DEP's standards should be at least as stringent as those recommended by EPA. In particular, Sierra Club echoes the concerns of other citizens and organizations that arsenic should be stringently regulated to protect both human health and the environment. Currently allowable arsenic levels are several orders of magnitude higher than the EPA recommends. Likewise, although the Department has revised its Benzene standards from the draft rule, the level set in the final rule is still dangerously high, and concerns that DEP is holding the door open for fracking and acid stimulation for fossil fuel extraction seem warranted.

With regard to Class II and Class III waters, for shellfish propagation and harvesting and waters for the propagation and maintenance of and wildlife, respectively, standards must be set not only to protect human health from exposure to contaminants through fish and shellfish consumption, but the criteria must also be sufficient to protect the designated use of the waterbodies. In other words, criteria must reflect safe levels of exposure for aquatic organisms. Indeed, nowhere does the rule justify setting standards that are protective of only human health. DEP's public workshops PowerPoint indicates that criteria protective of aquatic life would require higher standards for at least 7 pollutants.

Sierra Club Florida is concerned that standards are generally insufficiently protective of aquatic life, as required by Chapter 373, Florida Statutes. For example, the National Institutes of Health (NIH) Library of Medicine Center for Biotechnology open chemistry database and the Centers for Disease Control and Prevention (CDC) National Institute for Occupational Safety and Health database state that several of the chemicals whose criteria have been revised to be less protective are proposed at levels detrimental to aquatic life. For example, polycyclic aromatic hydrocarbons (PAHs), such as acenapthene and anthracene, are so toxic that there is no safe level at which they should be discharged into the environment, according to the NIH and CDC. Indeed, anthracene bioaccumulates not only in fish, but also in the waxy leaves of plants. Therefore the presence of anthracene in irrigation water poses a risk both to human health and the environment. Several of DEP's proposed standards are far in excess of those proposed for EPA's aquatic life criteria. These criteria should be revised to be consistent with criteria recommended by EPA, or revised to be more protective than EPA's recommendations, considering the Florida economy's reliance on tourism and ecosystem-based recreation.

The proposed rule also fails to consider cumulative impacts as required by 373.016(2), Florida Statutes. The Department did not evaluate the possible combined effects of multiple contaminants on both human health and the aquatic environment. By considering each chemical in isolation, the Department neglects to consider the additive or greater than additive risks of contaminants and chemical interactions. The uncertainty posed by possible interactions and additive effects should at the very least necessitate a cautionary and conservative approach to risk assessment for individual toxics. Additionally, the proposed rulemaking does not consider the effects of prolonged environmental exposure and accumulation of these chemicals. According to the NIH and CDC, some of the regulated pollutants exhibit a tendency to sink into sediments, where they can accumulate in muck and may become re-suspended during severe weather or upwelling events, entering the environment and the food chain in concentrated doses. DEP fails to consider these characteristics and the potential long-term harm these chemicals pose to human health and the environment.

Lastly, the proposed rule makes no attempt to regulate an additional 25 toxic chemicals for which EPA has offered proposed criteria. Even if this rulemaking were protective for the contaminants it does regulate, it would only be doing half the job.

Sierra Club urges the Department to reconsider its proposed criteria, and to issue a final rule that includes standards that are at least as protective as those recommended by EPA, both for human health and for aquatic organisms. FDEP must, at a minimum, delay this rulemaking until it holds additional hearings throughout the state and responds to citizen concerns about industry capture.

Please do not hesitate to contact us if we can be of any help in developing these standards, or if you have any questions with regard to these comments.