The Florida Department of Environmental Protection began workshops this week to adopt or update water quality criteria for 80 different chemicals that can affect human health. The chemicals are found in pesticides, herbicides, and in many industrial outputs. Once finalized, these “human health criteria” will limit the amount of the chemicals that can be discharged into waters across the state. Failure to comply with the new limits will create the possibility of state or federal enforcement or third-party litigation for noncompliance.
Businesses with Clean Water Act permits, known as NPDES permits, should be monitoring the new Florida Department of Environmental Protection rulemaking process to ensure that the criteria affecting them are based on sound science. Industrial and environmental interests have already taken opposing views of the science underlying the new criteria.
In an effort to resolve differences that have lingered for over two decades, the Florida Department of Environmental Protection (DEP) began rulemaking to update water quality targets, known as criteria, designed to ensure that the amount of approximately 80 chemicals found in drinking water and fish is not dangerous to human health. Although the effort to address these human health criteria has developed over two decades, the most recent criteria are based on updated science from DEP and on EPA-derived approaches for measuring the potential toxicological effects on humans from the chemicals when found in fish, shellfish, and drinking water.
Based on the updated science, some criteria are being revised upward while others are becoming more stringent, sometimes dramatically. The chemicals are found in many pesticides, herbicides, and industrial processes.
To develop the criteria, DEP made a number of assumptions about the amount of fish or drinking water people consume every day, as well as more complex assumptions related to the potential toxicological effects of the chemicals, including the amount of a chemical likely to remain in fish tissue over time, and the amount of a chemical that can be absorbed through other, non-water sources (such as air sources or dietary sources of the chemicals).
While some of the assumptions appear to be non-controversial, some assumptions used to develop the criteria are likely to be very controversial given the scarcity of data available to support them, and the sometimes dramatic changes to the permissible water quality criteria. Some of the new levels are so low that the amounts can’t be measured, and arguably are well below those levels necessary to protect human health.
Businesses with Clean Water Act permits, called NPDES permits, should be monitoring the new FDEP rulemaking process to ensure that the new criteria are based on sound science and do not unnecessarily increase the risk of enforcement or third-party litigation. Failure to comply with the new criteria will create the possibility of state or federal enforcement or third-party litigation for noncompliance.
