Lawsuit Against DEP Alive and Moving On

After a year of legal hurdles, the city of Miami and Seminole Tribe of Florida can now move forward with a lawsuit challenging a state rule that would allow higher concentrations of toxic chemicals, including carcinogens, to be discharged into Florida’s rivers and streams.

The Third District Court of Appeals on Wednesday reversed a lower court ruling and Miami and the Tribe said Thursday it will now continue to pursue its lawsuit against the Department of Environmental Protection’s Human Health Toxics Criteria Rule.

The rule increases the acceptable levels of more than two dozen known carcinogens and decreases levels for 13 currently regulated chemicals. It was approved on a 3-2 vote by the Environmental Regulation Commission in July 2016, when the commission had only five of its seven members.

The Seminole Tribe of Florida, Martin County and the city of Miami challenged the rule in August 2016, arguing it posed a health hazard to the public. The Florida Pulp and Paper Association, whose members rely on discharging chemical-laden water into Florida rivers, also challenged the rule but argued it was too strict.

But a judge for the Division of Administrative Hearings dismissed the challenges last year on the grounds that they had not been raised in a timely petition. The Tribe and city of Miami appealed it. The Third DCA overturned that ruling Wednesday, ordering the case back into administrative court.

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.

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.

State regulators are required to establish the rules under the federal Clean Water Act. DEP aggressively defended its proposal, saying it has been developing the criteria for more than a decade and had developed a one-of-a-kind scientific method nicknamed “Monte Carlo” — also known as “probabilistic analysis.”

The agency defended the method by saying it is more indicative of Florida variables and would shield people who consume large amounts of fish from the buildup of dangerous toxins.

But opponents argue that the standard would allow polluters to dump dangerous amounts of chemicals in high concentrations into Florida waters before they trigger the limits of the new rule. They also point out that the new standards also appear to be weaker than federal guidelines for many chemicals.

After the narrow vote last year, several members of Florida’s congressional delegation sent a letter to the head of the federal EPA voicing their concerns and asking for a public comment period for them to carefully evaluate each proposed human health criteria.

Linda Young of the Florida Clean Water Network, a non-profit environmental advocacy organization that has vigorously opposed the rule, commended the City of Miami and Seminole Tribe for pursuing the lawsuit.

“Allowing industry to dump their toxic chemical waste into the same waters where we fish and swim is ignorant,’’ she said. “The people of Florida value clean water and if the politicians and courts listen to us, we will have clean water eventually.”