STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD F. BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-558RE

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

and )

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March 18, 1983, in Tallahassee, Florida. The issue for determination at the hearing was whether Emergency Rule 5E-ER-83-3 adopted on February 4, 1983 by the Department of Agriculture and Consumer Services constitutes an invalid exercise of delegated legislative authority.

APPEARANCES

For Petitioner: Harold F. Brown

10307 South Indian River Drive Fort Pierce, Florida 33450

For Respondent: Frank A. Graham, Jr.

Resident Counsel

Room 512, Mayo Building Tallahassee, Florida 32301

For Intervenor Daniel H. Thompson Department of Deputy General Counsel Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor Baya M. Harrison, III Coalition: 317-1/2 East Park Avenue

Tallahassee, Florida 32301

INTRODUCTION

By a timely petition filed pursuant to Section 120.56(.4), Florida Statutes, petitioner Harold F. Brown challenged the respondent Department of Agriculture and Consumer Services (DACS) Emergency Rule 5E-ER-83-3, adopted on February 4, 1983 on the grounds that it constitutes an invalid exercise of delegated legislative authority. It was contended that there was no immediate danger to the public health, safety or welfare justifying emergency action and that the rule exceeds the scope of DACS' statutory authority. In summary form, the challenged emergency rule classifies the pesticide aldicarb as a restricted use pesticide to be applied only by or under the supervision of a licensed applicator; and temporarily suspends the use of aldicarb statewide, with exemptions for authorized experimental work, nursery use in containerized plants and applications to potato fields in St. Johns, Putnam and Flagler Counties.

Prior to the hearing, numerous letters from individuals and entities were filed requesting to be added as substantially affected parties to this proceeding. These letters were treated as petitions to intervene. By Orders entered on March 15, 1983, the undersigned denied the petitions to intervene of all those persons who did not allege a substantial interest in the challenged rule, and granted the petitions which contained the allegation that the petitioning party was a citrus grower and that the rule would deny the petitioner an approximate $400.00 per acre earning. This latter ruling granting intervention was subject to the offering of proof as to standing by competent substantial evidence adduced at the bearing. None of these growers who were granted intervenor status appeared at the hearing and no proof was offered as to their substantial interest in the challenged rule. Accordingly, these persons or entitites are dismissed for lack of standing to participate as intervenors in this proceeding.

At the commencement of the hearing the undersigned granted the petitions to intervene in support of the challenged rule filed by the Department of Environmental Regulation (DER) and the Coalition Against the Misuse of Pesticides in Florida, again subject to proof of adequate standing by competent substantial evidence at the hearing.

During the hearing, the petitioner testified in his own behalf and presented the testimony of Howard Rhodes, DER's Deputy Division Director of Water and Special Programs; Stephen H. King, the State Public Health Officer with the Department of Health and Rehabilitative Services (HRS); Charles H. Van Middelem, the Director of the Division of Chemistry in the DACS; Vernon C. Perry, Assistant Dean, Institute of Food and Agricultural Sciences, University of Florida; and Robert Bertwell, the Product Development Manager for Temik with Union Carbide Corporation. Petitioner's Exhibits 1 through 4 were received into evidence. The intervenor DER presented the testimony of Howard Rhodes and Rodney De Han, DER's Administrator of the Ground Water Section who was accepted as an expert witness in the area of water quality, particularly ground water hydrogeology biochemistry and soil microbiology. DER's Exhibits 1 through 8 were received into evidence. The respondent DACS presented the testimony of James H. Ellis and Herrell L. Fielding, citrus growers; Allan Hemenway, the Manager of the Fertilizer Division with Ben Hill Griffin, Inc.; Stephen H. King; Charles H. Van Middelem, who was accepted as an expert witness in the areas of pesticides and pesticide residues; Vernon C. Perry and Doyle Conner, the Commissioner of Agriculture. The respondent's Exhibits 1 through 3 were received into evidence. As rebuttal witnesses, the petitioner presented the testimony of James McNeal and Geoffrey Watts, environmental specialists with DER's Ground Water Section, and Robert Bertwell.

The Coalition Against the Misuse of Pesticides in Florida presented no witnesses or other evidence at the hearing. Having failed to prove the allegations of its petition to intervene or otherwise offer proof of its substantial interest in the challenged rule, the Coalition's petition to intervene is dismissed.

Subsequent to the hearing, all parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not incorporated in this Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues presented for determination or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil.

   
   

2. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use.

   
   

3. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels.

   
   

4. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime.

   
   

5. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water.

6. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer.

   
   

7. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight.

   
   

8. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis.

   
   

9. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues.

   
   

10. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County.

    On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been

    completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove.

    
    

11. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use.

    
    

12. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing.

    
    

13. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants.

    
    

14. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983.

    
    

15. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications.

    
    

16. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in

    Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.

    
    

    CONCLUSIONS OF LAW

    
    

17. As a person engaged in the business of applying aldicarb, petitioner Harold F. Brown has standing to challenge an emergency rule which temporarily suspends the use of such pesticide in Florida. Likewise, as an agency charged with the responsibility of protecting the waters of this State from pollution, the DER has a substantial interest in the challenged rule and is entitled to participate as an intervenor in this proceeding.

    
    

18. Petitioner challenges the subject rule on procedural and substantive grounds. Procedurally, it is alleged that there was no immediate danger to the public health, safety or welfare requiring the use of emergency rulemaking, as opposed to the normal rulemaking procedures required by Chapter 120, Florida Statutes. Substantively, petitioner contends that a rule which bans the use of Temik in Florida exceeds the authority delegated by the legislature to the Department of Agriculture and Consumer Services. More specifically, it is contended that the Department has no authority to ban the use of a pesticide which is registered by the EPA on facts which illustrate that residue concentrations found in food products and drinking water do not exceed the residue tolerance guidelines established by the EPA.

    
    

19. An agency may avoid the regular rulemaking and adoption procedures required by the Administrative Procedure Act only if it finds that an immediate danger to the public health, safety or welfare requires emergency action, and otherwise utilizes procedures which are fair under the circumstances and necessary to protect the public interest. Section 120.54(9), Florida Statutes.

    
    

20. The facts adduced at the hearing demonstrate that when the pesticide aldicarb, under the trade name of Temik, was originally registered for use in Florida, it was anticipated that it would degrade rapidly in Florida soils and would not pose any threat to food products or ground water when used according to the manufacturer's label directions. For some reason not made apparent fro the record of this proceeding, the correctness of this assumption was questioned. The Commissioner of Agriculture created a Temik Task Force to work in conjunction with the Pesticide Technical Council and to institute an immediate and accelerated program of testing for aldicarb residues in food products, ground water and drinking water in Florida. The results of such testing were that significant levels of aldicarb residues were being detected in ground water samples taken from Florida citrus groves. When traces of aldicarb residue were additionally detected in a sample from a drinking water well, although at a level less than the 10 parts per billion established as a guideline by the EPA, it was determined that the pesticide could constitute a danger to the public health, safety or welfare, and that its continued use, with three exceptions, should be temporarily suspended.

21. In Florida, there is no real distinction between ground water and drinking water. Once aldicarb has entered the ground water, it becomes a potential source of drinking water and may be consumed without any existing treatment designed for removal. The fact that aldicarb residues in significant excess of 10 ppb had been detected in the ground water, and in a drinking water well at all, was sufficient justification, to utilize the emergency rule procedures off Chapter 120, Florida Statutes, until such time as more scientific data can be obtained to base a determination as to the continued use of this pesticide in Florida. The testing program is an ongoing program by not only the DACS, but also by DER, HRS, the IFAS and the manufacturer. While there is some dispute as to the concentration level at which aldicarb is safe in drinking water, it is clear that the chemical is highly toxic, has not degraded rapidly in soil as represented and anticipated and is detectable in the ground water and in some drinking water wells. These facts are sufficient to justify the emergency rulemaking procedures utilized by the DACS in this instance. Testing results obtained after the promulgation of the challenged Emergency Rule have confirmed the earlier results which provided justification for emergency action with regard to the use of Temik in Florida.

    
    

22. The DACS's authority to regulate the use of pesticides in Florida is derived from and contained in the "Florida Pesticide Law," Chapter 487, Florida Statutes. The Department has been delegated the authority to determine whether pesticides are highly toxic to man and to determine quantities of substances contained in pesticides which are injurious to the environment. Section 487.051(2)(b) and (e), Florida Statutes. It further has the "full and complete power and authority" to promulgate rules deemed "necessary and helpful" in the efficient administration and enforcement of the Pesticide Law. Section 487.051(4), Florida Statutes. The department also has the authority to adopt rules governing the purchase and use of restricted-use pesticides and to prescribe the area, time and amount to avoid injury. Section 487.042(1), Florida Statutes. A "restricted use pesticide" is one which, when applied in accordance with its directions or widespread practice, may cause unreasonable adverse effects on the environment or injury to the applicator or other persons, and which has been classified as a restricted use pesticide either by the Department or the EPA. Section 487.021(46), Florida Statutes (1982 Supp.)

    
    

23. The Department's rules may not constitute a violation of federal law, Section 487.042(1), Florida Statutes, and the Department is encouraged to utilize and be guided by guidelines, standards and regulations established by the federal EPA. Sections 487.051(2)(e) and (3), Florida Statutes. Also see Section 570.07(.6), Florida Statutes. The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) authorizes a state to regulate the sale or use of any pesticide in the state only to the extent that the regulation does not permit any sale or use prohibited by FIFRA. 7 USCS 136v (a). In other words, a state's rules may be more restrictive but not less restrictive than the federal law, and Florida's temporary suspension of the use of Temik is not in violation of federal law.

    
    

24. One who challenges an agency's rule on the ground of lack of statutory authority has the burden to show:

    
    

    that the agency, if it adopts the rule, would exceed its authority; that the requirements of the rule are not ap- propriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably

    related to the purpose of the enabling legislation or that the proposed

    rule or the requirements thereof are arbitrary or capricious.

    Agrico Chemical Company v. State of Florida Department of Environmental Regulation, 365 So.2d 759, 763 (Fla.

    1st DCA 1978).

    
    

25. The evidence in this case adequately demonstrates that aldicarb is a highly toxic insecticide, that it is an appropriate subject for restricted use regulation and that a temporary limitation on its application in Florida to allow additional time to scientifically determine its effects in the ground water and drinking water is a valid exercise of delegated legislative authority.

    
    

    CONCLUSIONS OF LAW

    
    

26. Based upon the findings of fact and conclusions of law recited above, it is ORDERED that the petitioner has failed to demonstrate that Emergency Rule 5E-ER-83-3 constitutes an invalid exercise of delegated legislative authority. Accordingly, the petition filed in this proceeding is DISMISSED.

ORDERED and ENTERED this 25th day of March, 1983, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th DAY OF MARCH, 1983.

COPIES FURNISHED:

Harold F. Brown President

Harold F. Brown, Inc.

10307 South Indian River Drive Ft. Pierce, Florida 33450

Frank Graham, Esquire Department of Agriculture and Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Daniel H. Thompson, Esquire Deputy General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Baya M. Harrison, III, Esquire 317-1/2 East Park Avenue Tallahassee, Florida 32301

Honorable' Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Carroll Webb Executive Director

Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud Bureau Chief

Administrative Code Section Department of State

1802 The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-000558RX

Orders for Case No: 83-000558RX