The following comments were submitted according to the FDEP rule making procedure for mercury rule making, dated August 28, 2012, by a former lead scientist of the South Florida Water Management District, Larry E. Fink.
Fink was Mercury Program Manager from 1994-2004 and Interagency Coordinator for the South Florida Mercury Science Program from 1996-2000, when SFWMD formally turned back responsibility for all mercury research to FDEP, claiming falsely that mercury was coming from the air, not from runoff supporting the lifestyles of sugar billionaires who own the Florida legislature. Shifting responsibility to the state was also a way to dodge the accumulating science that sulfur -- used by sugar farmers -- leads to the conversion of sulfate to the highly damaging form of mercury that wrecks Creation.
This is a re-post of Larry Fink's comments from another list serve.
"These are excerpts of my comments as Waterwise Consulting, LLC, on FDEP's Revised Draft Mercury TMDL for the State of Florida Report to USEPA Region 4. They omit the Introduction, Background, and Issue-By-Issue Comments sections of the public comment letter. This is Part I of II. Part I reproduces the opening paragraphs that introduce the purpose, contents, and organization and then the Executive Summary. Part II contains the Key Findings and key Recommendations and closing comment.
The Executive Summary reproduced here makes the case that the approach (by the State of Florida to regulate mercury) and results are so scientifically, administratively, and legally deficient as to be fatally flawed. So either FDEP substantially revises the Report to correct the fatal flaws before submitting to USEPA Region 4 or submits it to USEPA Region 4 as is. If the latter, then USEPA Region 4 must then reject the Hg TMDL Report (mercury total maximum daily load report) or abuse its administrative discretion by approving it as the next step in the mercury TMDL development and implementation process." (Please click, 'read more')
PART I OF II
August 27, 2012
Jan Mandrup-Poulsen,
Administrator
Watershed Evaluation Section
Florida Department of Environmental Protection
3900 Commonwealth Blvd., M.S. 10
Tallahassee, FL 32399
RE: Public Comment on the Revised Draft Mercury TMDL for the State of Florida
Report to USEPA Region 4, published on July 6, 2012. http://www.dep.state.fl.us/water/tmdl/merctmdl.htm
Dear Mr. Mandrup-Poulsen:
This is set of formal public comments from Waterwise Consulting, LLC, on the Revised
Draft Mercury Total Maximum Daily Load for the State of Florida Report to USEPA
Region 4: http://www.dep.state.fl.us/water/tmdl/merctmdl.htm,which was
published on July 6, 2012, and the scientific, administrative, and legal
deficiencies in the statewide approach to the restoration and protection of
mercury-impaired Florida waters that was adopted by the State of Florida for
the purpose of developing and implementing a mercury Total Maximum Daily Load
(TMDL) pursuant to Clean Water Act (CWA) Section 303(d)(1)(C) and the point
source Waste Load Allocation (WLA) and Water Quality-Based Effluent Limitations
(WQBELs) deriving therefrom to restore and protect mercury-impaired Florida
waters. As a consequence of these serious deficiencies, the U.S. Environmental Protection Agency (USEPA) Region 4 cannot approve this statewide mercury TMDL, WLA, or WQBELs, and USEPA Region 4 as is and will have abused its discretion by doing so.
Please
acknowledge the timely submittal of these formal public comment regarding the
need to correct these serious deficiencies and make the required substantial
revisions to this Revised Draft Report and any subsequent formal administrative
actions deriving therefrom. I reserve
the right to amend and extend my formal public comments on this administrative
action in response to information obtained via one or more of the outstanding
formal public records requests that have not yet been fulfilled in a reasonable
period of time. Hereinafter the Revised
Draft Mercury Total Maximum Daily Load for the State of Florida is also referred
to as the Revised Draft Hg
TMDL Report, the Hg TMDL Report, the Hg Report, or the Report.
Exhibit
A incorporates by link the Federal Clean Water Act and contains the excerpt of
its TMDL provision, Section 303(d)(1)(C). Exhibit B incorporates the internet links to the regulations and technical guidance promulgated and published to implement CWA Section
303(d)(1)(C) and the related Glossary of Terms. Exhibit C incorporates the link
to the USEPA WQC Document for Methylmercury to Protect Human Health that USEPA
published in January 2001. Exhibit D contains the link to guidance for implementing the revised mercury WQC for methylmercury in fish flesh. Exhibit E is the link to reference and technical guidance for the use of USEPA-approved analytical methods in general and USEPA Methods 1630 and 1631 for ultra-trace MeHg and THg analysis, respectively, in water, sediment, and fish. Exhibit F is the link to the Revised Draft Report that is the subject of this formal public comment, Exhibit G are the
References contained therein, and Exhibit H is the link to Appendix H to the
Revised Draft Report containing the water, sediment, and sport fish data
collected by or for FDEP in the one-tine, statewide mercury monitoring campaign
in the period 2008-2010. Exhibit I is the link to Florida's impaired waters statute and rules and relevant excerpts from the rule.
This
is also a formal request that FDEP demonstrate that the State of Florida's
statewide mercury development and implementation approach, assumptions,
approximations, extrapolations, interpolations, methods, procedures, quality
assurance and control criteria and failure rates, record-making,
record-keeping, auditing, peer review, and recusal comport with all applicable
Federal and State statutes, regulations, rules, technical guidance, required
accreditations and certifications, accepted professional standards of technical
and ethical practice, and common sense regarding the development and
implementation of an enforceable TMDL for an impaired waterbody in general and
mercury-impaired waterbodies in particular, including but not limited to the
use of USEPA-approved or recommended analytical methods in monitoring, water
quality modeling, TMDL calculation, and/or the waste load allocations and water
quality-based effluent limitations deriving therefrom.
Executive Summary
(1) The Contamination of the Human Food
Supply with Toxic Amounts of Toxic Methylmercury Constitutes an Imminent and
Growing Threat to the Public Health, Safety and Welfare and a Violation of the
State of Florida's Narrative "No Toxic Substances in Toxic Amounts"
Water Quality Standard for the Protection of Human Uses of Fishable and
Swimmable Waters
The contamination of the human food
supply with toxic amounts of toxic methylmercury constitutes an imminent and
growing threat to the public health, safety and welfare and a violation of the
State of Florida's Narrative "No Toxic Substances in Toxic Amounts"
Water Quality Standard (WQS) for the protection of human uses of fishable and
swimmable waters. There is an
unacceptable risks of cognitive impairment to the developing fetus in the third
trimester from the exposure of pregnant women to toxic methylmercury in toxic amounts when fish are consumed by
pregnant women at Florida average rates, let alone subsistence rates, from most
Florida lagoons, estuaries, and bays and many of Florida's lakes and
rivers. According to FDEP's
calculations, the median backrgound methylmercury dose rate from the consumption
of salt water fish and shellfish species for Florida women of child-bearing age
exceeds USEPA's methylmercury reference dose for the protection of the
developing fetus of 0.0001 mg/Kg-day. If
the Florida mercury WQS were calculated in the same way as the USEPA WQC, the
allowable concentration in freshwater fish is < 0. In fact the background concentrations in salt water fish and shellfish species in Florida would have to be reduced by 24.3% just so that the median exposure to methylmercury in Florida women of childbearing age equals USEPA's reference dose. Based on the results contained in Appendix H of the Hg TMDL Report, the flesh of largemouth bass collected from 72 (29%) of the 249 of the lakes and streams sampled out of the thousands that are mercury-impaired averaged twice the water quality target of 0.3 ppm total mercury as methylmercury in fish flesh on a wet-eight basis and 26 (10%) of 249 averaged three times that target. Many coastal waters average four and five times the mercury water quality target for prized, large-bodied, long-lived, top-predator sport fish species. (2) There Is No Margin of Safety for Florida Women of Child-Bearing Age, the Developing Fetus, or the Nursing Infant Because the half-life of methylmercury in a woman's blood stream is about 50 days, a pregnant woman and her fetus approach steady state with the average concentration of methylmercury in her diet by the beginning of her third trimester, so consuming the flesh from a typical largemouh bass from roughly one-third of the lakes and streams during her pregnancy at the state average rate of 21 grams per day (about an ounce and a quarter) doubles the risk of impairing the brain function of her developing fetus and in 10% of the lakes and streams that risk is tripled. It then takes roughly five half-lives to clear the excessively high methylmercury levels from her system once she stops eating that fish. Sadly, the clearance rate from a woman's body is measurably faster for nursing women, because they are dumping methylmercury into their breast milk, continuing the exposure of the nursing infant to methylmercury that began in the womb. Thereafter, it doesn't matter whether this woman of child-bearing age ever consumes another fish, because the neurological damage has already been done That being the case, FDEP's conceptual model of exposure of women of child-bearing age and their fetuses to methylmercury is flawed, because it assumes that the exposures from the consumption of fish with high and low methylmercury concentrations average out over a woman's child-bearing years, thus justifying the use of average values rather than the actual concentration probability distribution function for each salt water fish and shellfish species consumed by Florida women of childbearing age in the probabilistic analysis used to calculate the median background methylmercury dose rate and the margin of safety in the water quality target. This may be true of a hypothetical statistic, but nor for real women playing toxic roulette with their unborn child. The risks of cognitive deficit in the developing fetus are magnified for women of child-bearing age who subsist on fish from a local canal, pond, lake, stream, estuary, or bay, because they consume fish at rates typically 5 times the Florida average rate. For them, there is no margin of safety in the 0.3 ppm water quality target. Whether this inequity constitutes a form of discrimination that violates the environmental justice provisions of applicable Federal law or Presidential Executive Order will be left to the judgment of the Federal courts. (3) Informational and Educational Efforts are Necessary But Not Sufficient to Protect the Public Health, Safety, and Welfare Informational and educational efforts by the Florida Department of Public Health, the Florida Department of Environmental Protection, and the Florida Fish and Wildlife Conservation Commission to limit exposure to methylmercury in toxic amounts by asking the public to self-limit the consumption of excessively contaminated fresh and salt water sport and commercial fish and shellfish originating from Florida waters have been less than fully effective in preventing human methylmercury toxicosis. This is evidenced by the number of cases of physician-reported neurotoxic effects in patients observed in the period 2001-2010. This is documented in the revised draft Hg TMDL Report. The decision by the DOH Secretary, in his capacity as Florida's Chief Medical Officer, to tighten the reporting criteria will reset the reporting baseline, but the number of cases meeting those tighter criteria will continue to rise as more and more people are driven to subsist on fresh and canned sport and commercial fish from Florida's fresh and salt waters. Whether this decision was made in good faith in the best interests of the public health, safety, and welfare or to undermine the epidemiological necessity for mercury regulatory action at this time will be left to judgment of the Florida courts. (4) Threatened and Endangered Species are Not Adequately Protected by USEPA's Water Quality Criterion to Protect Human Health Threatened and endangered fish-eating wildlife and their predators cannot read or heed the real or virtual warnings and avoid exposure to toxic amounts of methylmercury in their contaminated forage, so there has been, is, and will be an unacceptable risk of compromised reproductive success from which threatened and endangered species are explicitly protected under the Federal Endangered Species Act and for which there are potentially serious legal consequences, even if there are none for endangering humans. Those unacceptable risks are also documented in Section 2.4 and Appendix E of Hg TMDL Report, as well as data, reports, and publications in the possession of FDEP or to which it has ready access in the scientific, regulatory, or consultant literature. However, FDEP failed to calculate wildlife protection WQC following USEPA technical guidance but using the fish data collected in the one-time, statewide mercury monitoring campaign. When that is done, the unenforceable 0.3 ppm THg as methylmercury in a representative top-predator sport fish species, the largemouth bass, cannot be demonstarted to be adequately protective of representative fish-eating mammals, such as the otter and mink, or fish-eating avians, such as the eagle and osprey. (5) FDEP has Failed to Timely Promulgate a Revised Class III Numerical Mercury WQS Adequately Protective of Human Health and Fish and Shellfish-Eating Wildlife and Their Predators FDEP has been on public record that the existing duly promulgated numerical Class III WQS for mercury of 12 ng/L total mercury (THg) was not adequately of protective of the public health since the agency assumed responsibility for authoring or co-authoring the mercury chapter of the annual report to the Governor, the Legislature, and the Secretary of the Department of Environmental Protection on the status and trends of Everglades restoration, recovery, and permit compliance, now known as the South Florida Environmental Report (SFER). FDEP has known that Florida's existing mercury WQS was not adequately protective of human health since January 2001, when the USEPA WQC document was published. In the last triennial review cycle, FDEP proposed a revised mercury WQS of 0.2 ppm THg as methylmercury in fish flesh on a wet-weight basis to protect human health to reflect the higher average fish consumption rate and background methylmercury dose rate than the national averages used by USEPA to derive the 0.3 ppm value. That effort was subsequently abandoned without adequate notice or justification. (6) Florida State Agencies Were Arbitrary, Capricious, and Abused Their Discretion in Assigning a Low Priority to the Development of Enforceable TMDLs for Mercury-Impaired Fresh and Salt Waterbodies in Florida for a Toxic Substance Present in Toxic Amounts in the Human Food Supply FDEP's only formal administrative action to date regarding mercury was for the Environmental Regulation Commission to adopt at FDEP's request a revised impaired waters rule in December 2006 to designate mercury-impaired waters as a low priority because of the current lack of understanding of the mercury cycle in the environment. The Legislature's only contribution in this regard was to exempt the listings, priorities, and schedules for TMDL development and implementation from public challenge as a matter of Florida law. (7) FDEP Has Not Proposed to Promulgate a Revised Mercury WQS in this Triennial Review Cycle or Committed to a Plan and Schedule for Same in 2012 On April 27, 2012, Florida Department of Environmental Protection (FDEP) public noticed its intent to conduct a limited Clean Water Act-mandated triennial review of its duly promulgated Water Quality Standards to protect the various uses of its fresh and salt waters. This limited review did not include mercury. https://www.flrules.org/gateway/ruleno.asp?id=62-302.530 This occurred about the same time that FDEP was preparing to release for public comment a Draft Statewide Mercury Total Maximum Daily Load (TMDL) Report to USEPA Region 4 on the extent, significance, status and trends, and proposed mercury load reduction strategy to restore mercury-impaired state waters, which, among other things, found that fishable uses were impaired even in waters where the existing THg WQS was nowhere being violated based on the one-time statewide mercury monitoring campaign of lakes and streams but not wetlands or salt waters. This decision was made despite being under a Federal Court Consent Decree to develop and implement enforceable TMDLs for all impaired waters listed pursuant to CWA Section 303(d) by September 30, 2012, including mercury-impaired waters. Instead of revising the deficient existing Class III numerical mercury WQS, Florida is proposing to adopt general technical guidelines for the derivation of WQS for the protection of human health using the same probabilistic approach adopted http://www.dep.state.fl.us/water/wqssp/docs/tr_review/human_health_073112.pdf; http://www.dep.state.fl.us/water/wqssp/docs/tr_review/hhc_tsd_071112.pdf in the Hg TMDL Report. The failure of FDEP to petition the ERC to revise the numerical Class III mercury WQS during this triennial review cycle will be the subject of inquiry before the Federal court. (8) FDEP's Proposed Statewide Mercury Total Maximum Daily Load (TMDL) and the Waste Load Allocations (WLAs) and Water Quality-Based Effluent Limitations Deriving Therefrom are Scientifically, Administratively, and Legally Deficient. There are serious scientific, administrative, and legal deficiencies in the design, methods, implementation, and interpretation of the results of the one-time, statewide mercury monitoring campaign, the calculation of the water quality target, the calculation of the load allocation, the consideration of the seasonal variation and the margin of safety in the calculation of the proposed load reduction required to attain and maintain the unenforceable water quality target in the absence of a duly-promulgated, enforceable revised Class III numerical Water Quality Standard for mercury, and the fair and equitable distribution of the mercury assimilative capacities between states, fresh and salt waters, point and nonpoint sources, and amongst point sources. The statewide approach to mercury TMDL development and implementation also, in effect, adopts a policy whereby not all mercury-impaired waters need be restored to unimpaired status. CWA Section 303(d)(1)(C) requires a waterbody-specific approach to TMDL development, and it makes no allowance for a statistical approach where 1%, 5%, or 10% of the state's mercury-impaired waters can be sacrificed as an administrative expedient. I refer to this as the "No Waterbody Left Behind" letter and spirit of CWA Section 303(d)(1)(C). Nor does the statewide approach even commit to follow-up monitoring of the sacrificed waters to evaluate their responses to the mercury load reduction intended to restore most but not all of Florida's mercury-impaired waters. To the contrary, state law requires that all mercury-impaired waters be delisted as soon as the statewide mercury TMDL is published. These are fatal flaws in the development and implementation of the statewide approach to the Florida mercury TMDL that must be corrected prior to submittal of the Revised Draft Hg TMDL Report to USEPA Region 4 for review and comment. If these fatal flaws are not corrected prior to submittal, USEPA Region 4 cannot approve this statewide mercury TMDL, and USEPA Region 4 will have abused its discretion by doing so. (9) The Implicit Combined Margin of Safety Claimed by FDEP for Its Proposed Approach to Statewide Mercury TMDL Development and Implementation is Not Adequate to Compensate for the Propagated Errors and Compounded Uncertainties in the Proposed Statewide Mercury TMDL, WLAs, and WQBELs Deriving Therefrom FDEP has adopted an implicit margin of safety to compensate for any lack of knowledge about the relationship between the mercury loading rate and the methylmercury bioaccumulating in the reference freshwater sport fish species, the largemouth bass. However, the implicit margin of safety is in the assumptions used to derive and apply the water quality target, not the load-concentration relationship. This is the same approach recommended by Florida's Allocation Technical Advisory Committee. This approach is contrary to relevant technical guidelines for implementing Section 303(d)(1)(C). USEPA Region 4 erred in the past by approving TMDLs based on this approach to the implicit margin of safety. This fatal administrative deficiency withstanding, the implicit margin of safety in the derivation of the unenforceable water quality target and the state's approach to its implementation is not adequate to compensate for the uncertainties in the mercury load-concentration relationship to protect the average Florida consumer of sport fish, let alone a subsistence consumer protected by the Environmental Justice provisions of applicable Federal statutes, regulations, and Presidential Executive Orders. This deficiency is further magnified by the adoption of a statewide approach to mercury TMDL development and implementation because of the greater variation in the reference sport fish THg concentrations between waterbodies sampled in the same season than within the same waterbodies sampled in different seasons. As a consequence of the inadequacy of the implicit margin of safety in the statewide mercury TMDL, there is an unacceptable probability of concluding that the fishable uses of a mercury-impaired waterbody will have been restored by the proposed 90% reduction in controllable point and nonpouint sources of mercury when it has not at the 95th percentile confidence level. (10) As a Consequence of (9), There is an Unacceptable Likelihood of FDEP Concluding that It Has Reasonable Assurance that the Mercury-Impaired Waterbodies Will Recover and Attain Mercury-Unimpaired Status when They Will Not Due to the seasonal variation that was ignored in the design of the one-time, statewide mercury monitoring campaign and the analysis, integration, and synthesis of its results, there is a statistically significant probability that a resource manager will incorrectly conclude from the results of the study that a waterbody is not mercury-impaired when it is or that it has recovered from that mercury impairment as consequence of the proposed mercury atmospheric load reduction when it has not. The use of age, size-, or weight-standardized transformations of the fish data is unlikely to reduce the rate of committing such a critical error in judgment to acceptable levels. The unacceptable probability of committing such resource management decision-making errors is a consequence of the flawed study design that followed from the faulty assumption that seasonal variation could be ignored as an administrative expedient. The validity of that assumption is contradicted by the study results for a subset of lakes that were resampled in a different season. This negates the value of the study results and the mercury resource management and point source regulation decisions deriving therefrom. The margin of safety in the compounded assumptions adopted by FDEP to develop and implement the statewide mercury TMDL approach is inadequate to compensate for the tendency of resource managers to draw incorrect conclusions of such critical consequence from the study results. (11) As a Consequence of (10), There Is an Unacceptable Likelihood that FDEP Will Prematurely and Incorrectly Delist Mercury-Impaired Waters Merely Because FDEP Has Published a Statewide Mercury TMDL CWA Section 303(d)(1)(C) requires a waterbody-specific approach to TMDL development and implementation to ensure that the waterbody attains its duly promulgated WQS. No mercury-impaired waterbody shall be left behind in the process of developing or implementing a statewide mercury TMDL as an administrative expedient. And no mercury-impaired waterbody shall be delisted until all of its statewide and watershed-specific mercury source controls and best management practices have been implemented, the waterbody has had sufficient time to respond to the mercury load reduction, and follow-up monitoring demonstrates the long-term attainment and maintenance of mercury-unimpaired status. If state law requires otherwise, then the state law must be changed to comport with Federal law. (12) USEPA Region 4 Will Have Abused Its Discretion If It Approves The State of Florida's Scientifically, Administratively, and Legally Deficient Statewide Mercury TMDL and the WLAs and WQBELs Deriving Therefrom Florida's statewide approach to mercury TMDL development is contrary to CWA Section 303(d)(1)C) and the regulations and technical guidelines promulgated and published to implement that provision. It is based on restoring mercury-impaired waters to an unenforceable water quality target rather than a duly promulgated, revised Class III numerical mercury WQS. The unenforceable target is demonstrably inadequately protective of the median Florida woman of child-bearing age consuming salt water fish and shellfish species with median concentrations of total mercury as methylmercury, including fish and shellfish originating from Florida waters, at median consumption rates, let alone a subsistence consumer protected by treaty or the environmental justice provisions of applicable Federal law or Presidential Executive Order. The approach adopted by the state assumes without proof that restoring its lakes and streams will restore its wetlands, when some wetlands can be demonstrated to be more mercury-susceptible than lakes and streams, as evidenced by the Everglades. It also assumes that restoring Florida's fresh waters will restore its salt waters, when many lagoons, estuaries, and bays have higher methylmercury concentrations in their flesh than the fresh waters flowing into them under the same mercury atmospheric deposition loads, as evidenced by the Lake Okeechobee-Everglades-Florida Bay system. Florida then calculates the required mercury load reduction to restore the unimpaired status of all fresh waters up to the 90th percentile level of methylmercury contamination. In effect this sacrifices 10% of Florida's most mercury-susceptible, mercury-impaired waters as an administrative expedient. Section 303(d)(1)(C) makes no such provisions. No waterbody shall be left behind using the statewide approach to mercury TMDL development and implementation. In particular, because the results of the one-time, statewide mercury monitoring of a subset of lakes and streams demonstrates that streams are more mercury-susceptible than lakes, so roughly 15% of the streams are being sacrificed using this approach. The margin of safety with seasonal variation is insufficient to ensure that even these statistical targets will be hit. Nevertheless, when a corrected 90th percentile Florida stream LMB THg as MeHg concentration is adopted, the required load reduction from all air emissions sources is 99%, not 86%. The incorrectly calculated mercury TMDL was then not fairly and equitably distributed between states for inter-state fresh and salt waterbodies and then between and among controllable in-state point and nonpoint sources. The WQBELs were not correctly calculated for mercury over-allocated Florida waters where the TMDL - LA - M.O.S. < 0. The mercury over-allocated waters require zero discharge of mercury. For point sources regulated under CWA Section 402, this translates into no detectable discharge of THg at the method detection limit of the duly promulgated, USEPA-approved method for ultra-trace mercury analysis, Method 1631, not the enforceable but deficient existing mercury WQS of 12 ng/L, the unenforceable water quality target of 1.25 ng/L, or any variation on that theme. As a consequence of these errors of omission and commission, Florida's statewide mercury TMDL is so seriously scientifically, administratively, and legally deficient that it must be considered fatally flawed, and USEPA Region 4 will have abused its discretion by approving it. Instead, Florida's Hg TMDL Report must be substantially revised to correct these errors to comport with letter and spirit of CWA Section 303(d)(1)(C) and the regulations and technical guidelines promulgated and published by USEPA to implement that provision.
Fink was Mercury Program Manager from 1994-2004 and Interagency Coordinator for the South Florida Mercury Science Program from 1996-2000, when SFWMD formally turned back responsibility for all mercury research to FDEP, claiming falsely that mercury was coming from the air, not from runoff supporting the lifestyles of sugar billionaires who own the Florida legislature. Shifting responsibility to the state was also a way to dodge the accumulating science that sulfur -- used by sugar farmers -- leads to the conversion of sulfate to the highly damaging form of mercury that wrecks Creation.
This is a re-post of Larry Fink's comments from another list serve.
"These are excerpts of my comments as Waterwise Consulting, LLC, on FDEP's Revised Draft Mercury TMDL for the State of Florida Report to USEPA Region 4. They omit the Introduction, Background, and Issue-By-Issue Comments sections of the public comment letter. This is Part I of II. Part I reproduces the opening paragraphs that introduce the purpose, contents, and organization and then the Executive Summary. Part II contains the Key Findings and key Recommendations and closing comment.
The Executive Summary reproduced here makes the case that the approach (by the State of Florida to regulate mercury) and results are so scientifically, administratively, and legally deficient as to be fatally flawed. So either FDEP substantially revises the Report to correct the fatal flaws before submitting to USEPA Region 4 or submits it to USEPA Region 4 as is. If the latter, then USEPA Region 4 must then reject the Hg TMDL Report (mercury total maximum daily load report) or abuse its administrative discretion by approving it as the next step in the mercury TMDL development and implementation process." (Please click, 'read more')
PART I OF II
August 27, 2012
Jan Mandrup-Poulsen,
Administrator
Watershed Evaluation Section
Florida Department of Environmental Protection
3900 Commonwealth Blvd., M.S. 10
Tallahassee, FL 32399
RE: Public Comment on the Revised Draft Mercury TMDL for the State of Florida
Report to USEPA Region 4, published on July 6, 2012. http://www.dep.state.fl.us/water/tmdl/merctmdl.htm
Dear Mr. Mandrup-Poulsen:
This is set of formal public comments from Waterwise Consulting, LLC, on the Revised
Draft Mercury Total Maximum Daily Load for the State of Florida Report to USEPA
Region 4: http://www.dep.state.fl.us/water/tmdl/merctmdl.htm,which was
published on July 6, 2012, and the scientific, administrative, and legal
deficiencies in the statewide approach to the restoration and protection of
mercury-impaired Florida waters that was adopted by the State of Florida for
the purpose of developing and implementing a mercury Total Maximum Daily Load
(TMDL) pursuant to Clean Water Act (CWA) Section 303(d)(1)(C) and the point
source Waste Load Allocation (WLA) and Water Quality-Based Effluent Limitations
(WQBELs) deriving therefrom to restore and protect mercury-impaired Florida
waters. As a consequence of these serious deficiencies, the U.S. Environmental Protection Agency (USEPA) Region 4 cannot approve this statewide mercury TMDL, WLA, or WQBELs, and USEPA Region 4 as is and will have abused its discretion by doing so.
Please
acknowledge the timely submittal of these formal public comment regarding the
need to correct these serious deficiencies and make the required substantial
revisions to this Revised Draft Report and any subsequent formal administrative
actions deriving therefrom. I reserve
the right to amend and extend my formal public comments on this administrative
action in response to information obtained via one or more of the outstanding
formal public records requests that have not yet been fulfilled in a reasonable
period of time. Hereinafter the Revised
Draft Mercury Total Maximum Daily Load for the State of Florida is also referred
to as the Revised Draft Hg
TMDL Report, the Hg TMDL Report, the Hg Report, or the Report.
Exhibit
A incorporates by link the Federal Clean Water Act and contains the excerpt of
its TMDL provision, Section 303(d)(1)(C). Exhibit B incorporates the internet links to the regulations and technical guidance promulgated and published to implement CWA Section
303(d)(1)(C) and the related Glossary of Terms. Exhibit C incorporates the link
to the USEPA WQC Document for Methylmercury to Protect Human Health that USEPA
published in January 2001. Exhibit D contains the link to guidance for implementing the revised mercury WQC for methylmercury in fish flesh. Exhibit E is the link to reference and technical guidance for the use of USEPA-approved analytical methods in general and USEPA Methods 1630 and 1631 for ultra-trace MeHg and THg analysis, respectively, in water, sediment, and fish. Exhibit F is the link to the Revised Draft Report that is the subject of this formal public comment, Exhibit G are the
References contained therein, and Exhibit H is the link to Appendix H to the
Revised Draft Report containing the water, sediment, and sport fish data
collected by or for FDEP in the one-tine, statewide mercury monitoring campaign
in the period 2008-2010. Exhibit I is the link to Florida's impaired waters statute and rules and relevant excerpts from the rule.
This
is also a formal request that FDEP demonstrate that the State of Florida's
statewide mercury development and implementation approach, assumptions,
approximations, extrapolations, interpolations, methods, procedures, quality
assurance and control criteria and failure rates, record-making,
record-keeping, auditing, peer review, and recusal comport with all applicable
Federal and State statutes, regulations, rules, technical guidance, required
accreditations and certifications, accepted professional standards of technical
and ethical practice, and common sense regarding the development and
implementation of an enforceable TMDL for an impaired waterbody in general and
mercury-impaired waterbodies in particular, including but not limited to the
use of USEPA-approved or recommended analytical methods in monitoring, water
quality modeling, TMDL calculation, and/or the waste load allocations and water
quality-based effluent limitations deriving therefrom.
Executive Summary
(1) The Contamination of the Human Food
Supply with Toxic Amounts of Toxic Methylmercury Constitutes an Imminent and
Growing Threat to the Public Health, Safety and Welfare and a Violation of the
State of Florida's Narrative "No Toxic Substances in Toxic Amounts"
Water Quality Standard for the Protection of Human Uses of Fishable and
Swimmable Waters
The contamination of the human food
supply with toxic amounts of toxic methylmercury constitutes an imminent and
growing threat to the public health, safety and welfare and a violation of the
State of Florida's Narrative "No Toxic Substances in Toxic Amounts"
Water Quality Standard (WQS) for the protection of human uses of fishable and
swimmable waters. There is an
unacceptable risks of cognitive impairment to the developing fetus in the third
trimester from the exposure of pregnant women to toxic methylmercury in toxic amounts when fish are consumed by
pregnant women at Florida average rates, let alone subsistence rates, from most
Florida lagoons, estuaries, and bays and many of Florida's lakes and
rivers. According to FDEP's
calculations, the median backrgound methylmercury dose rate from the consumption
of salt water fish and shellfish species for Florida women of child-bearing age
exceeds USEPA's methylmercury reference dose for the protection of the
developing fetus of 0.0001 mg/Kg-day. If
the Florida mercury WQS were calculated in the same way as the USEPA WQC, the
allowable concentration in freshwater fish is < 0. In fact the background concentrations in salt water fish and shellfish species in Florida would have to be reduced by 24.3% just so that the median exposure to methylmercury in Florida women of childbearing age equals USEPA's reference dose. Based on the results contained in Appendix H of the Hg TMDL Report, the flesh of largemouth bass collected from 72 (29%) of the 249 of the lakes and streams sampled out of the thousands that are mercury-impaired averaged twice the water quality target of 0.3 ppm total mercury as methylmercury in fish flesh on a wet-eight basis and 26 (10%) of 249 averaged three times that target. Many coastal waters average four and five times the mercury water quality target for prized, large-bodied, long-lived, top-predator sport fish species. (2) There Is No Margin of Safety for Florida Women of Child-Bearing Age, the Developing Fetus, or the Nursing Infant Because the half-life of methylmercury in a woman's blood stream is about 50 days, a pregnant woman and her fetus approach steady state with the average concentration of methylmercury in her diet by the beginning of her third trimester, so consuming the flesh from a typical largemouh bass from roughly one-third of the lakes and streams during her pregnancy at the state average rate of 21 grams per day (about an ounce and a quarter) doubles the risk of impairing the brain function of her developing fetus and in 10% of the lakes and streams that risk is tripled. It then takes roughly five half-lives to clear the excessively high methylmercury levels from her system once she stops eating that fish. Sadly, the clearance rate from a woman's body is measurably faster for nursing women, because they are dumping methylmercury into their breast milk, continuing the exposure of the nursing infant to methylmercury that began in the womb. Thereafter, it doesn't matter whether this woman of child-bearing age ever consumes another fish, because the neurological damage has already been done That being the case, FDEP's conceptual model of exposure of women of child-bearing age and their fetuses to methylmercury is flawed, because it assumes that the exposures from the consumption of fish with high and low methylmercury concentrations average out over a woman's child-bearing years, thus justifying the use of average values rather than the actual concentration probability distribution function for each salt water fish and shellfish species consumed by Florida women of childbearing age in the probabilistic analysis used to calculate the median background methylmercury dose rate and the margin of safety in the water quality target. This may be true of a hypothetical statistic, but nor for real women playing toxic roulette with their unborn child. The risks of cognitive deficit in the developing fetus are magnified for women of child-bearing age who subsist on fish from a local canal, pond, lake, stream, estuary, or bay, because they consume fish at rates typically 5 times the Florida average rate. For them, there is no margin of safety in the 0.3 ppm water quality target. Whether this inequity constitutes a form of discrimination that violates the environmental justice provisions of applicable Federal law or Presidential Executive Order will be left to the judgment of the Federal courts. (3) Informational and Educational Efforts are Necessary But Not Sufficient to Protect the Public Health, Safety, and Welfare Informational and educational efforts by the Florida Department of Public Health, the Florida Department of Environmental Protection, and the Florida Fish and Wildlife Conservation Commission to limit exposure to methylmercury in toxic amounts by asking the public to self-limit the consumption of excessively contaminated fresh and salt water sport and commercial fish and shellfish originating from Florida waters have been less than fully effective in preventing human methylmercury toxicosis. This is evidenced by the number of cases of physician-reported neurotoxic effects in patients observed in the period 2001-2010. This is documented in the revised draft Hg TMDL Report. The decision by the DOH Secretary, in his capacity as Florida's Chief Medical Officer, to tighten the reporting criteria will reset the reporting baseline, but the number of cases meeting those tighter criteria will continue to rise as more and more people are driven to subsist on fresh and canned sport and commercial fish from Florida's fresh and salt waters. Whether this decision was made in good faith in the best interests of the public health, safety, and welfare or to undermine the epidemiological necessity for mercury regulatory action at this time will be left to judgment of the Florida courts. (4) Threatened and Endangered Species are Not Adequately Protected by USEPA's Water Quality Criterion to Protect Human Health Threatened and endangered fish-eating wildlife and their predators cannot read or heed the real or virtual warnings and avoid exposure to toxic amounts of methylmercury in their contaminated forage, so there has been, is, and will be an unacceptable risk of compromised reproductive success from which threatened and endangered species are explicitly protected under the Federal Endangered Species Act and for which there are potentially serious legal consequences, even if there are none for endangering humans. Those unacceptable risks are also documented in Section 2.4 and Appendix E of Hg TMDL Report, as well as data, reports, and publications in the possession of FDEP or to which it has ready access in the scientific, regulatory, or consultant literature. However, FDEP failed to calculate wildlife protection WQC following USEPA technical guidance but using the fish data collected in the one-time, statewide mercury monitoring campaign. When that is done, the unenforceable 0.3 ppm THg as methylmercury in a representative top-predator sport fish species, the largemouth bass, cannot be demonstarted to be adequately protective of representative fish-eating mammals, such as the otter and mink, or fish-eating avians, such as the eagle and osprey. (5) FDEP has Failed to Timely Promulgate a Revised Class III Numerical Mercury WQS Adequately Protective of Human Health and Fish and Shellfish-Eating Wildlife and Their Predators FDEP has been on public record that the existing duly promulgated numerical Class III WQS for mercury of 12 ng/L total mercury (THg) was not adequately of protective of the public health since the agency assumed responsibility for authoring or co-authoring the mercury chapter of the annual report to the Governor, the Legislature, and the Secretary of the Department of Environmental Protection on the status and trends of Everglades restoration, recovery, and permit compliance, now known as the South Florida Environmental Report (SFER). FDEP has known that Florida's existing mercury WQS was not adequately protective of human health since January 2001, when the USEPA WQC document was published. In the last triennial review cycle, FDEP proposed a revised mercury WQS of 0.2 ppm THg as methylmercury in fish flesh on a wet-weight basis to protect human health to reflect the higher average fish consumption rate and background methylmercury dose rate than the national averages used by USEPA to derive the 0.3 ppm value. That effort was subsequently abandoned without adequate notice or justification. (6) Florida State Agencies Were Arbitrary, Capricious, and Abused Their Discretion in Assigning a Low Priority to the Development of Enforceable TMDLs for Mercury-Impaired Fresh and Salt Waterbodies in Florida for a Toxic Substance Present in Toxic Amounts in the Human Food Supply FDEP's only formal administrative action to date regarding mercury was for the Environmental Regulation Commission to adopt at FDEP's request a revised impaired waters rule in December 2006 to designate mercury-impaired waters as a low priority because of the current lack of understanding of the mercury cycle in the environment. The Legislature's only contribution in this regard was to exempt the listings, priorities, and schedules for TMDL development and implementation from public challenge as a matter of Florida law. (7) FDEP Has Not Proposed to Promulgate a Revised Mercury WQS in this Triennial Review Cycle or Committed to a Plan and Schedule for Same in 2012 On April 27, 2012, Florida Department of Environmental Protection (FDEP) public noticed its intent to conduct a limited Clean Water Act-mandated triennial review of its duly promulgated Water Quality Standards to protect the various uses of its fresh and salt waters. This limited review did not include mercury. https://www.flrules.org/gateway/ruleno.asp?id=62-302.530 This occurred about the same time that FDEP was preparing to release for public comment a Draft Statewide Mercury Total Maximum Daily Load (TMDL) Report to USEPA Region 4 on the extent, significance, status and trends, and proposed mercury load reduction strategy to restore mercury-impaired state waters, which, among other things, found that fishable uses were impaired even in waters where the existing THg WQS was nowhere being violated based on the one-time statewide mercury monitoring campaign of lakes and streams but not wetlands or salt waters. This decision was made despite being under a Federal Court Consent Decree to develop and implement enforceable TMDLs for all impaired waters listed pursuant to CWA Section 303(d) by September 30, 2012, including mercury-impaired waters. Instead of revising the deficient existing Class III numerical mercury WQS, Florida is proposing to adopt general technical guidelines for the derivation of WQS for the protection of human health using the same probabilistic approach adopted http://www.dep.state.fl.us/water/wqssp/docs/tr_review/human_health_073112.pdf; http://www.dep.state.fl.us/water/wqssp/docs/tr_review/hhc_tsd_071112.pdf in the Hg TMDL Report. The failure of FDEP to petition the ERC to revise the numerical Class III mercury WQS during this triennial review cycle will be the subject of inquiry before the Federal court. (8) FDEP's Proposed Statewide Mercury Total Maximum Daily Load (TMDL) and the Waste Load Allocations (WLAs) and Water Quality-Based Effluent Limitations Deriving Therefrom are Scientifically, Administratively, and Legally Deficient. There are serious scientific, administrative, and legal deficiencies in the design, methods, implementation, and interpretation of the results of the one-time, statewide mercury monitoring campaign, the calculation of the water quality target, the calculation of the load allocation, the consideration of the seasonal variation and the margin of safety in the calculation of the proposed load reduction required to attain and maintain the unenforceable water quality target in the absence of a duly-promulgated, enforceable revised Class III numerical Water Quality Standard for mercury, and the fair and equitable distribution of the mercury assimilative capacities between states, fresh and salt waters, point and nonpoint sources, and amongst point sources. The statewide approach to mercury TMDL development and implementation also, in effect, adopts a policy whereby not all mercury-impaired waters need be restored to unimpaired status. CWA Section 303(d)(1)(C) requires a waterbody-specific approach to TMDL development, and it makes no allowance for a statistical approach where 1%, 5%, or 10% of the state's mercury-impaired waters can be sacrificed as an administrative expedient. I refer to this as the "No Waterbody Left Behind" letter and spirit of CWA Section 303(d)(1)(C). Nor does the statewide approach even commit to follow-up monitoring of the sacrificed waters to evaluate their responses to the mercury load reduction intended to restore most but not all of Florida's mercury-impaired waters. To the contrary, state law requires that all mercury-impaired waters be delisted as soon as the statewide mercury TMDL is published. These are fatal flaws in the development and implementation of the statewide approach to the Florida mercury TMDL that must be corrected prior to submittal of the Revised Draft Hg TMDL Report to USEPA Region 4 for review and comment. If these fatal flaws are not corrected prior to submittal, USEPA Region 4 cannot approve this statewide mercury TMDL, and USEPA Region 4 will have abused its discretion by doing so. (9) The Implicit Combined Margin of Safety Claimed by FDEP for Its Proposed Approach to Statewide Mercury TMDL Development and Implementation is Not Adequate to Compensate for the Propagated Errors and Compounded Uncertainties in the Proposed Statewide Mercury TMDL, WLAs, and WQBELs Deriving Therefrom FDEP has adopted an implicit margin of safety to compensate for any lack of knowledge about the relationship between the mercury loading rate and the methylmercury bioaccumulating in the reference freshwater sport fish species, the largemouth bass. However, the implicit margin of safety is in the assumptions used to derive and apply the water quality target, not the load-concentration relationship. This is the same approach recommended by Florida's Allocation Technical Advisory Committee. This approach is contrary to relevant technical guidelines for implementing Section 303(d)(1)(C). USEPA Region 4 erred in the past by approving TMDLs based on this approach to the implicit margin of safety. This fatal administrative deficiency withstanding, the implicit margin of safety in the derivation of the unenforceable water quality target and the state's approach to its implementation is not adequate to compensate for the uncertainties in the mercury load-concentration relationship to protect the average Florida consumer of sport fish, let alone a subsistence consumer protected by the Environmental Justice provisions of applicable Federal statutes, regulations, and Presidential Executive Orders. This deficiency is further magnified by the adoption of a statewide approach to mercury TMDL development and implementation because of the greater variation in the reference sport fish THg concentrations between waterbodies sampled in the same season than within the same waterbodies sampled in different seasons. As a consequence of the inadequacy of the implicit margin of safety in the statewide mercury TMDL, there is an unacceptable probability of concluding that the fishable uses of a mercury-impaired waterbody will have been restored by the proposed 90% reduction in controllable point and nonpouint sources of mercury when it has not at the 95th percentile confidence level. (10) As a Consequence of (9), There is an Unacceptable Likelihood of FDEP Concluding that It Has Reasonable Assurance that the Mercury-Impaired Waterbodies Will Recover and Attain Mercury-Unimpaired Status when They Will Not Due to the seasonal variation that was ignored in the design of the one-time, statewide mercury monitoring campaign and the analysis, integration, and synthesis of its results, there is a statistically significant probability that a resource manager will incorrectly conclude from the results of the study that a waterbody is not mercury-impaired when it is or that it has recovered from that mercury impairment as consequence of the proposed mercury atmospheric load reduction when it has not. The use of age, size-, or weight-standardized transformations of the fish data is unlikely to reduce the rate of committing such a critical error in judgment to acceptable levels. The unacceptable probability of committing such resource management decision-making errors is a consequence of the flawed study design that followed from the faulty assumption that seasonal variation could be ignored as an administrative expedient. The validity of that assumption is contradicted by the study results for a subset of lakes that were resampled in a different season. This negates the value of the study results and the mercury resource management and point source regulation decisions deriving therefrom. The margin of safety in the compounded assumptions adopted by FDEP to develop and implement the statewide mercury TMDL approach is inadequate to compensate for the tendency of resource managers to draw incorrect conclusions of such critical consequence from the study results. (11) As a Consequence of (10), There Is an Unacceptable Likelihood that FDEP Will Prematurely and Incorrectly Delist Mercury-Impaired Waters Merely Because FDEP Has Published a Statewide Mercury TMDL CWA Section 303(d)(1)(C) requires a waterbody-specific approach to TMDL development and implementation to ensure that the waterbody attains its duly promulgated WQS. No mercury-impaired waterbody shall be left behind in the process of developing or implementing a statewide mercury TMDL as an administrative expedient. And no mercury-impaired waterbody shall be delisted until all of its statewide and watershed-specific mercury source controls and best management practices have been implemented, the waterbody has had sufficient time to respond to the mercury load reduction, and follow-up monitoring demonstrates the long-term attainment and maintenance of mercury-unimpaired status. If state law requires otherwise, then the state law must be changed to comport with Federal law. (12) USEPA Region 4 Will Have Abused Its Discretion If It Approves The State of Florida's Scientifically, Administratively, and Legally Deficient Statewide Mercury TMDL and the WLAs and WQBELs Deriving Therefrom Florida's statewide approach to mercury TMDL development is contrary to CWA Section 303(d)(1)C) and the regulations and technical guidelines promulgated and published to implement that provision. It is based on restoring mercury-impaired waters to an unenforceable water quality target rather than a duly promulgated, revised Class III numerical mercury WQS. The unenforceable target is demonstrably inadequately protective of the median Florida woman of child-bearing age consuming salt water fish and shellfish species with median concentrations of total mercury as methylmercury, including fish and shellfish originating from Florida waters, at median consumption rates, let alone a subsistence consumer protected by treaty or the environmental justice provisions of applicable Federal law or Presidential Executive Order. The approach adopted by the state assumes without proof that restoring its lakes and streams will restore its wetlands, when some wetlands can be demonstrated to be more mercury-susceptible than lakes and streams, as evidenced by the Everglades. It also assumes that restoring Florida's fresh waters will restore its salt waters, when many lagoons, estuaries, and bays have higher methylmercury concentrations in their flesh than the fresh waters flowing into them under the same mercury atmospheric deposition loads, as evidenced by the Lake Okeechobee-Everglades-Florida Bay system. Florida then calculates the required mercury load reduction to restore the unimpaired status of all fresh waters up to the 90th percentile level of methylmercury contamination. In effect this sacrifices 10% of Florida's most mercury-susceptible, mercury-impaired waters as an administrative expedient. Section 303(d)(1)(C) makes no such provisions. No waterbody shall be left behind using the statewide approach to mercury TMDL development and implementation. In particular, because the results of the one-time, statewide mercury monitoring of a subset of lakes and streams demonstrates that streams are more mercury-susceptible than lakes, so roughly 15% of the streams are being sacrificed using this approach. The margin of safety with seasonal variation is insufficient to ensure that even these statistical targets will be hit. Nevertheless, when a corrected 90th percentile Florida stream LMB THg as MeHg concentration is adopted, the required load reduction from all air emissions sources is 99%, not 86%. The incorrectly calculated mercury TMDL was then not fairly and equitably distributed between states for inter-state fresh and salt waterbodies and then between and among controllable in-state point and nonpoint sources. The WQBELs were not correctly calculated for mercury over-allocated Florida waters where the TMDL - LA - M.O.S. < 0. The mercury over-allocated waters require zero discharge of mercury. For point sources regulated under CWA Section 402, this translates into no detectable discharge of THg at the method detection limit of the duly promulgated, USEPA-approved method for ultra-trace mercury analysis, Method 1631, not the enforceable but deficient existing mercury WQS of 12 ng/L, the unenforceable water quality target of 1.25 ng/L, or any variation on that theme. As a consequence of these errors of omission and commission, Florida's statewide mercury TMDL is so seriously scientifically, administratively, and legally deficient that it must be considered fatally flawed, and USEPA Region 4 will have abused its discretion by approving it. Instead, Florida's Hg TMDL Report must be substantially revised to correct these errors to comport with letter and spirit of CWA Section 303(d)(1)(C) and the regulations and technical guidelines promulgated and published by USEPA to implement that provision.
2 comments:
maybe it helps explain the dumbing down of Florida?
Florida regulation is in need of some serious rehabilitation. The environment could be destroyed by mercury if nothing is done. Court reporting in West Palm Beach FL could also be another reason why Florida regulation hasn't changed?
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