Seminole Tribe challenge of revised DEP water quality rule dismissed
On Aug. 8, the Seminole Tribe of Florida filed suit with the Florida Division of Administrative Hearings challenging recent Environmental Regulation Commission approval of revised standards for 43 chemicals and new standards for 39 chemicals in the Human Health Toxics Criteria Rule, 62-302.530, FAC.
The Seminole Tribe asked for a determination of invalidity of the proposed rule revisions.
The Seminole Tribe’s petition said that the new risk-based calculation used to establish standards “does not take into account the subsistence rates of fish consumption for tribal populations.”
The tribal members’ subsistence consumption rate is over 140 grams of fish per week, five times greater than the consumption rate used for the rule.
The petition also claimed that procedural violations of “delegated legislative authority” invalidated the rule because the proposed rulemaking, referring specifically to the ERC meeting where it was approved, did not have a full 28-day notice period.
The proposed rule was published in the Florida Administrative Register on June 30, 2016. The ERC met and voted approval on July 26, 2016.
On that basis, the petition characterized the proposed rule as “arbitrary and capricious.” Secondarily, the petition criticizes the proposed rule because it “fails to establish adequate standards for agency decisions.”
Administrative Judge Bram D.E. Canter heard the case on Sept. 6-7 and dismissed it on procedural grounds Sept 13. DEP counsel pointed out that the Seminole Tribe’s counsel filed the petition at 5:02 pm, Aug 5. Filing rules establish a 5:00 pm deadline on the final eligible filing day.
Judge Cantor also found the petition late because it was submitted on a schedule consistent with DEP’s first-ever issue of a notice of correction, published on Aug. 4. The rule extension, Judge Canter noted, applies only to a notice of change.
After the ERC approved the rule on July 26, the final step before its implementation was expected to be EPA review and approval.
The EPA ensures that state rules comply with the federal Clean Water Act, the rule’s ultimate authority. Although somewhat delayed by the administrative hearing, the rule is again on track for EPA submission.
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