Dioxin: State Developments

June 21, 2016 | Commercial Litigation | Complex Torts & Product Liability

Florida DEP Proposing Revisions to Surface Water Quality Criteria

Florida’s Department of Environmental Protection (“DEP”) is initiating rulemaking to consider proposed revisions to the DEP’s human health-based surface water quality criteria. Some environmental groups have expressed concerns that the proposed revisions will damage the state’s rivers, lakes, streams, and coastal waters and that they are being considered as a prelude to allowing fracking in Florida.

Background

Florida’s current human health-based water quality criteria last were updated in 1992. The DEP said that, to meet U.S. Environmental Protection Agency (“EPA”) obligations, it is working to update these criteria to incorporate “new scientific information,” including national guidance published by the EPA last summer.

The DEP stated that its proposed standards are not less protective than previous standards and that they would “ensure Floridians can continue to safely eat Florida’s seafood and drink potable water from state surface waters.”

In fact, according to the DEP, it is “increasing protection by proposing to nearly double the number of regulated chemicals to better protect Floridians from exposure to contaminants.” The DEP stated that, in addition to adding criteria for 39 chemicals that currently are unregulated, it also is proposing to update 43 existing criteria that originally were established in 1992 to incorporate new science.

Additionally, the DEP has proposed establishing a new sub-classification of surface waters (Class I-B, Treated Potable Water Supplies) and reclassifying seven surface waters into the new sub-classification.

The DEP has observed that, to help develop its criteria, it received direct input from a seven-member scientific review panel including representatives from the EPA, the Florida Department of Health, four different Florida universities, and the California Environmental Protection Agency. The DEP said that it is following the panel’s recommendations.

The DEP acknowledged that some of the numbers for the proposed criteria are going up, but said that that did not mean that they were less protective. As an example, the DEP pointed out that the EPA guidance for benzene recommends criteria between 16 and 580 micrograms per liter for class 3 waterways and that the DEP’s proposal is to raise the current level to 93 micrograms per liter. “In every single case, these values still ensure that Floridians are protected from adverse health effects,” the DEP says. It also pointed out that the values are lower for about half of the chemicals and higher for the other half.

Dioxin

The DEP is not updating its criteria for dioxin (or arsenic), explaining that the EPA also did not do so in its 2015 guidance. Dioxin and arsenic are regulated in Florida – at the EPA’s specified levels – under the Clean Water Act.

There apparently are some members of the public who believe that the current arsenic criterion is 1,000 times the drinking water standard, but the DEP has responded that the current arsenic criterion for Class I waters is “identical to the drinking water standard.” It said that it believes that some members of the public apparently have misinterpreted the different units used by each program (“ug/L” versus “mg/L”) and have concluded in error that the Class I criterion is 1,000 times the drinking water standard.

Fracking

Some environmental groups have expressed concern about the DEP’s proposals. Among other things, they suggest that increasing levels of benzene, which is used in fracking, might lead to the adopting of fracking in Florida. Dr. Lonnie Draper, the president of the Florida chapter of Physicians for Social Responsibility, told reporters, “All this is about is that somebody wants to pollute,” and that in this case, “it’s probably the fracking industry.”

At a public hearing, the DEP’s environmental administrator for water quality standards, Ken Weaver, rejected that contention, stating, “I had no pressure to affect the benzene criteria. It’s just this is the methodology (and) that’s the number that came out of it.”

For further information, please contact James V. Aiosa, Paul V. Majkowski, Lawrence S. Han, or your regular Rivkin Radler attorney.

Related Publications


Legal updates and news delivered to your inbox