The four petitioners who opposed the DEP’s proposed new limits for toxins allowed in Florida’s water have lost, in that Judge Bram Canter has disallowed the petition, based on a two minute late filing.
Since this is such a serious issue, mainly that our government is knowingly helping industry to up our citizens’ cancer risk so that corporations can make more money, we feel it is not out of place to point fingers and put the word out.
Some columnists have said the people of Florida are at fault for allowing it. We believe most citizens are unaware of it, or falsely believe that their Department of Environmental Protection would not allow dangerous amounts of poisons in our water. Can we blame the people for assuming this? Common sense tells us the DEP exists to keep us safe. Only in Florida it is not so.
In this case, we have no common sense. Reputable physicians testified before the ERC panel of the dangers involved, yet their testimony was ignored. As seen below, one panelist implied that since the regulations had not been changed since 1992, that somehow that was bad, and they needed to be changed. What kind of thinking is that? Since when does common sense have a shelf life?
One could also wonder why the filers waited until the last minute. Why not allow a safe margin? Certainly the deck was stacked by the governor, as he pushed the vote through with two vacant seats on the panel which would have represented the environment and local governments. In addition, one of the members was unconfirmed and had ties to the DEP. It was not a fair hearing.
What a deplorable lack of leadership we have in Florida!
Linda Young fights on, and the people of Florida owe her more than they know.
The following article by Jim Waymer appeared in Florida Today.
Comments by OSFR historian Jim Tatum.
-A river is like a life: once taken, it cannot be brought back-
Judge dismisses Seminole’s petition against new Florida water toxin rule
Jim Waymer, FLORIDA TODAY
4:50 p.m. EDT September 14, 2016
A Florida administrative law judge has dismissed the Seminole Tribe’s petition against a new water rule, but the larger legal battle might be far from over, clean water advocates say.
Administrative Law Judge Bram Canter ruled Tuesday that the Seminole Tribe and three other petitioners against Florida’s new water toxin rules did not meet the deadline for challenging the rule.
Lawyers for the Seminole Tribe, Martin County, the city of Miami and the Florida Pulp and Paper Association had argued during a Sept. 7 hearing that Florida rushed through new, complex criteria for more than 80 water toxins without properly notifying the public.
But the Florida Department of Environmental Protection’s lawyers said the legal challenge to the new water criteria should be dismissed because the Seminoles and other petitioners missed the deadline for petitioning for an administrative hearing on the new rules.
Only two minutes made the difference. The deadline to petition the new water toxin rule was 5 p.m. Aug. 5, DEP lawyers said, 10 days after the Environmental Regulation Commission passed the rule during a July 26 hearing.
But the Seminole Tribe’s petition was filed electronically with the Division of Administrative Hearings at 5:02 p.m. Aug. 5, the 10th day following the ERC hearing. Under state administrative rules, any document received by the agency clerk after 5 p.m. is considered filed as of 8 a.m. on the next regular business day. So, the official time of filing for the Seminole Tribe’s petition wound up being 8 a.m. on Aug. 8, three days late.
The Seminole Tribe filed its petition Aug. 8, with the city of Miami and others joining later.
But the tribe argues that DEP filed a “notice of change/withdraw” entitled a “correction” on Aug. 4 that made significant changes to the rule, which should have extended the deadline.
Amy Taylor Petrick, the West Palm Beach attorney representing the Seminole Tribe, had argued that DEP’s public notices were incomprehensible and that the agency is trying to “close the door before it ever reasonably opened” for the tribe’s rule challenge.
The Seminoles argue that the new rule would harm tribe members because it fails to protect human consumption at subsistence level for those who exercise their traditional fishing, hunting, trapping and frogging rights.
The challengers also argued that DEPs public notices were written in ways to obfuscate the consequences of the new water toxin criteria.
But Canter disagreed. The petitioners knew DEP was changing the new water rules, he said in his order: “Workshops and a public hearing were held on the proposed rules,” Canter wrote.
“The procedural errors alleged by Petitioners are matters that must be raised in a timely petition,” he added. “It is concluded that the alleged errors do not establish a basis for excusing an untimely rule challenge petition.”
On July 26, by a 3-2 vote, the state’s Environmental Regulation Commission signed off on the new water quality standards for more than 80 toxic chemicals, including benzene, a cancer-causing petroleum byproduct used in hydraulic fracking.
The U.S. Environmental Protection Agency also must approve the new criteria.
Last year, EPA had issued recommendations for standards based on more recent science. But conservationists say that in many cases DEP failed to use as strict health criteria as EPA suggests.
The state will allow levels higher than EPA guidelines for compounds such as polychlorinated biphenyls (PCBs), once widely used in plastics, caulking, transformers, capacitors and other electrical equipment. Production of PCBs was banned in 1979, and EPA calls them “probable human carcinogens.” Childhood exposure to PCBs has been linked with reduced IQ and impaired growth and motor skills.
“We have not updated these parameters since 1992, it is more good than harm,” ERC Commissioner Cari Roth, a Tallahassee lawyer who’s ERC seat represents developers, said just before the July 26 vote. “To me it would be far worse to delay.”
The new criteria could impact the types of chemicals released during hydraulic fracking — if Florida were to approve the practice — oil and gas drilling, by sewer plants, paper and pulp plants, dry cleaning businesses and other industries. Those chemicals can wind up in drinking water and in shrimp, fish and other seafood.
The petitioners in their legal filings have argued the public’s voice wasn’t represented, because two of the seven seats are vacant on the Environmental Regulation Commission. The governor appoints the commissioners but has left the two seats empty. One of the empty seats is designated to represent local governments and the other seat represents the environmental community. The occupied ERC seats represent agriculture, development, a science and technical representative, and two seats are laypersons.
It was uncertain Wednesday how the petitioners might proceed next.
“We’re not really sure yet. We’re still evaluating all of our options,” said Ruth A Holmes, assistant county attorney for Martin County.
Martin County commissioners have asked their county attorney to evaluate costs and benefits of proceeding with the case and to engage with toxicologist at Florida International University to review DEP’s new criteria to see whether they will impact county residents and how.
At least one major water advocate in Florida says they plan to keep fighting.
“We can potentially file a lawsuit in federal court,” said Linda Young, director of the Florida Clean Water Network, an advocacy group monitoring the Seminoles’ challenge.
Her group is petitioning EPA to try to get the federal agency to force Florida to update its water toxin criteria using EPA’s stricter guidelines.
“It’s not over. It’s far from over,” Young vowed. “None of this is cheap.”