STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEGAL ENVIRONMENTAL ASSISTANCE ) FOUNDATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 88-3628
) MONSANTO CHEMICAL COMPANY and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing
before P. Michael Ruff, the duly-designated Hearing Officer, on September 8, 1989, in Tallahassee, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: B. Suzi Ruhl, Esq.
David Ludder, Esq.
Legal Environmental Assistance Foundation, Inc.
203 North Gadsden Street Suite 7
Tallahassee, FL 32301
For Respondent,
DER: Cynthia K. Christen, Esq. Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
For Respondent,
Monsanto: William D. Preston, Esq.
Thomas M. DeRose, Esq. Hopping Boyd Green & Sams First Florida Bank Building Suite 420
123 S. Calhoun Street Tallahassee, FL 32301
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern firstly, whether the movement (because of Respondent, Monsanto
Chemical Company's (Monsanto) injection operation) of "formation fluid" containing 10,000 milligrams per liter (MG/L) or more total dissolved solids (TDS) into a portion of the lower Floridan aquifer, an underground source of drinking water, is prohibited by Rule 17-28.310(2)(b), Florida Administrative Code, or whether the Respondent, Department of Environmental Regulation (DER),
may determine on a case-by-case basis whether lateral displacement of formation fluid into an underground source of drinking water (USDW) within the injection zone of such an injection operation should be prohibited or to what extent it should be conditioned.
The second issue to be resolved concerns whether the
the requirements of Rule 17-28.130(5)(a), Florida Administrative Code, are satisfied if a grant of the permit is made before a final corrective action plan is required to be submitted by the applicant.
PRELIMINARY STATEMENT
The Petitioner, Legal Environmental Assistance Foundation, Inc. (LEAF), has filed a challenge to the proposed grant of an underground injection operation permit to Monsanto for its three underground injection wells at its plant in
Escambia County, Florida. Monsanto seeks to renew its previous operating permit issued in 1982.
The parties have stipulated to the majority of the
facts at issue, with the exception of certain background facts concerning the historical development of DER's application and interpretation of certain provisions of its rules which implement the State's Underground Injection Control Program (UIC), contained in Chapter 17-28, Florida Administrative Code.
Evidence of these historical facts was established in the record by the testimony of four present and former employees of the DER.
The cause came on for hearing as noticed. In addition
to the testimony presented, the parties made legal arguments and submitted extensive memoranda on the two stipulated issues of law presented. The parties agreed that resolution of the two issues stated above will determine whether the operation permit renewal will provide reasonable assurances that the permitted operation will comply with DER rules related to underground injection operations. The parties submitted their various factual stipulations and additionally, the transcripts of the following depositions:
For Petitioner:
Daniel H. Thompson, deposition dated May 16, 1989 Rodney DeHan, deposition dated June 12, 1989
For Respondents:
Leslie Bell Shannon, deposition dated May 16, 1989 Charles Aller, deposition dated June 14, 1989
The Petitioner presented exhibits 1-15, and the Respondents presented exhibits 1 and 2. The parties filed memoranda of law and Proposed Recommended Orders containing proposed findings of fact. Those proposed findings of fact are addressed in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
Monsanto operates one of the world's largest nylon fiber manufacturing plants in Escambia County, Florida. The
Monsanto plant has utilized deep underground injection wells as a method of waste water disposal since 1963. The processed waste water from the manufacturing operation flows through an elaborate network of sewers to a clay-lined holding pond on Monsanto's property. From that pond, the waste water, which is a highly dilute, slightly acidic, nonhazardous liquid, is pumped to one of three injection wells in Monsanto's underground disposal system. The Monsanto injection wells operate under pressure to deliver the processed waste water ("injected fluid") to the injection zone. DER has designated the lower Floridan aquifer, at a depth of approximately 1,400 to 1,800 feet below the surface of the ground, as Monsanto's injection zone. Monsanto's Operation Permit Number UD17-55414, dated December 2, 1982, is the permit which last authorized this activity. That permit is now proposed to be renewed. The injection wells are classified as "Class I Industrial Disposal Wells" because they "inject fluids beneath the lowermost formation containing, within one quarter mile of the well bore, an underground source of drinking water". See, Rules 17-28.130(1) (a), Florida Administrative Code.
On April 1, 1982, DER adapted its rules governing the UIC. These rules were designed to enable DER to obtain
authorization from the US EPA to implement the federally-mandated UIC in Florida. On December 2, 1982, the Monsanto UIC received its first operating permit from DER. On March 9, 1983, the DER obtained authorization from the EPA to implement the UIC of Florida, in lieu of the federal program, under the auspices of the EPA, in accordance with 40CFR, subsection 147.500.
Upon expiration of its 1982 permit, Monsanto timely applied to DER for a renewal or reissuance of its Class I UIC permit. This resulted in an automatic authorization for it to continue operation of the injection system pending action on the permit renewal application. On June 10, 1988, DER issued a notice of intent to issue that permit. On July 11, 1988, LEAF filed the instant petition seeking an administrative hearing and requesting modifications in the proposed permit or challenging its issuance; alternatively asserting that the permit should be denied.
During the pendency of the proceeding, prior to hearing, the parties agreed to stipulations of most of the facts
in this matter. The parties have stipulated that the only issues in dispute involve DER's construction of the two rule provisions noted above and application of those rules to the permit
application. They have stipulated that the proposed permit satisfies all requirements of applicable DER rules otherwise.
Formation Fluid Movement
Monsanto injects its processed waste water into an injection zone lying approximately 1,400 to 1,800 feet below the land surface. A portion of that injection zone, the lower Floridan aquifer, is a designated USDW. There is no dispute that Monsanto's injection activity causes movement of formation fluid; that is, the ambient fluid existing in the injection zone formation or strata, containing 10,000 MG/L, or greater, content of TDS into a portion of the lower Floridan aquifer, which is a USDW. That movement of formation fluid into a portion of the lower Floridan Aquifer is within the injection zone.
An isopleth is an imaginary line on a map or
drawing which connects points at which a given variable has a specified constant value. In this case, the isopleth of relevance is the line which connects the points in the lower Floridan aquifer at which formation fluid contains a TDS concentration of 10,000 MG/L. Concentrations at lower than 10,000 MG/L are considered to be fresh water. The location of TDS isopleths in the lower Floridan aquifer throughout the area of review at issue is not presently known. That area of review originally was proposed to be a radius of 10 miles; but at the behest of DER during the application review process, an area of review related to this renewal application of a radius of 15 miles was established and is uncontested by the parties.
Available ground water monitoring data from the
lower Floridan aquifer is inadequate to confirm or deny that any movement of the 10,000 MG/L TDS isopleth in that aquifer has actually occurred. Modeling performed on behalf of Monsanto and undisputed by the parties, indicates that Monsanto's injection activity does cause movement of formation fluid (as opposed to injected fluid) which contains 10,000 MG/L or greater TDS into a portion of the lower Floridan aquifer in the injection zone. DER has determined that that movement, due to the injection activity into a portion of the lower Floridan Aquifer, is not a prohibited movement. It has not been established that movement of that formation fluid which results from the injection activity violates any standard or prohibition in DER's ground water or other rules, other than the rules cited in the above-stated issue concerning prohibition of movement of fluid into a USDW, as well as that prohibition against altering, impairing or interfering with the designated use or classification of a USDW.
In any event, within the area of review
established, the lower Floridan Aquifer in which the injection zone is located is not presently used as a USDW because of its depth and the presence of two other existing sources of drinking water at more shallow depths. That injection zone is separated from the two more shallow drinking water aquifers by an impenetrable confining zone called the "Bucatunna Clay". That confining strata or zone comports with DER's rules regarding the separation of the injection zone, for such UIC operations, from
strata or aquifers constituting sources of drinking water, by an impenetrable barrier. There is no issue raised that the injection operations, concerning wellhead and bore pressures and other mechanical aspects of the operations, for purposes of related DER rules, are causing any fractures or other endangerment to the sources of drinking water overlying the confining zone.
Concern has been expressed by the Petitioner and DER, however, concerning some 13 wells in the area of review
which may be improperly sealed, completed or abandoned (abandoned wells). These penetrate the sand and gravel drinking water source aquifer overlying the buccatunna confining zone. They could possibly serve as a source of migration of injected or formation fluid from the injection zone through the confining zone, vertically, into the sand and gravel aquifer.
DER has determined that the movement of formation fluid caused by the injection activity into a portion of the lower Floridan Aquifer, which is a USDW, should not be prohibited. It has determined that the degree of lateral movement of formation fluid (as opposed to vertical movement of
formation fluid through the confining zone) and its impact on the aquifer are not sufficient to warrant a prohibition of it and a permanent denial. Nor does DER contend that an aquifer exemption should be sought on account of this lateral movement of formation fluid (containing greater than 10,000 MG/L TDS). It has not been established that this movement of formation fluid by the injection activity violates any water quality standards or other prohibitions in DER's rules, except the alleged prohibition of any movement of fluid into a USDW.
In this connection, Rule 17-28.310(2)(b), Florida Administrative Code, is not plain or unambiguous. It does not specify when or under what conditions movement of fluid into a USDW is prohibited. It does not differentiate as to the kinds of fluid, "injected", "formation fluid" or otherwise. Consequently, the rule has historically been interpreted by DER in a way in which it will make sense, as applied to a particular injection operation, including that of Monsanto.
The testimony of Leslie Bell Shannon establishes
that since Rule 17-28.310(2)(b), Florida Administrative Code, was adopted in 1982, DER has consistently interpreted it to provide DER with the discretion to evaluate the impact of movement of formation fluid into a USDW within the authorized injection zone (as is occurring here) on a case-by-case basis. The rule is not clear in stating what type of movement of fluid; that is, what direction, is prohibited either. In that connection, the testimony of Ms. Shannon establishes, without contradiction, that DER has historically interpreted the movement to mean vertical movement. This is because injection zones are never approved unless they exist beneath an impermeable confining strata, so that overlying aquifers or drinking water bearing strata cannot be contaminated. Because the well bores of such injection wells are the most likely sources of contamination due to defects in the casing, the well bore, and so forth, vertical movement of
injected or formation fluid has always been the regulatory concern for injection operations. In effect, the injection zone is not approved in a source that will be used for drinking water and is not approved unless an adequate confining zone exists above that injection zone at a shallower depth, according to the EPA rules which pertain, as well as those of DER. Thus, DER has consistently interpreted the above rule to provide it with the discretion to evaluate the impact of movement or formation fluid into USDW's within the injection zone, on a case-by-case basis.
Because of this historical manner of
interpretation, DER, in applying the strictures of the rule to the instant injection activity, has determined, since the injection zone lies beneath an adequate confining zone, that even though the lower Floridan Aquifer is officially designated a USDW, that it does not actually serve as a source of drinking water for humans because of its great depth, and that the lateral movement of formation fluid within that injection zone should not be prohibited.
DER's interpretation of the rule in that fashion has been shown to be reasonable and consistent with the legislative and regulatory intent expressed in Chapter 403,
Florida Statutes, and the above-stated rule. The testimony and the pertinent rules of Chapter 17-28, Florida Administrative Code, establish that the integrity of the confining zone and upward migration of formation or injection fluid has been and is a matter of greatest concern and is the movement of fluid which the rule was intended to prohibit. There has been no demonstration that that interpretation of Rule 17-28.310(2)(b), Florida Administrative Code, is clearly erroneous.
Corrective Action Requirement of Rule 17-28.130(5) (a) Florida Administrative Code
Monsanto has identified 13 wells within the
expanded 15 mile radial area of review. These 13 wells may be, although not proven to be, improperly sealed, completed or abandoned. These abandoned wells penetrate through sand and gravel aquifer, through the confining zone, and into the injection zone. LEAF does not contend that any other wells exist within the area of review, which penetrate the confining zone and into the injection zone of the lower Floridan Aquifer.
The sand and gravel aquifer, which overlies and is shallower than the Buccatunna Clay confining zone, is a primary source of potable water for much of Escambia County. It is a USDW within the area of review of the Monsanto injection facility. At least one private withdrawal, domestic water well is drilled into that aquifer within one mile of the injection facility. The 13 wells have been identified by Monsanto, but the record does not reflect that they have all been physically located nor that they are all located on Monsanto's owned (or controlled) property.
Rule 17-28.130(5)(a), Florida Administrative Code, requires a corrective action plan designed to prevent the
migration of injection fluid or formation fluid from the injection zone through the confining zone into the aquifer used for drinking water, through improperly sealed, completed or abandoned wells. Since such wells serve as a break in the continuity of the impermeable confining zone, they are a source of endangerment to the overlying drinking water aquifer. Thus, the rule requires that a corrective action plan be established by such a permit applicant and implemented to insure that reasonable assurance is provided that such migration of fluids will not occur. Monsanto submitted a corrective action plan to DER as a part of its permit application. DER, however, issued a notice of deficiency to Monsanto requiring additional information to be provided. As a result of that deficiency in its originally submitted corrective action plan, Monsanto expanded the area of review to a 15-mile radius and revised the corrective action plan, which, thus, identified and disclosed all available information on the 13 wells in the expanded area of review. That plan concluded that no corrective action was necessary.
DER determined that the corrective action plan was not adequate because it did not provide reasonable assurances that movement of fluid into a USDW, through the 13 wells, would be prevented. DER elected to issue the permit upon certain conditions, requiring that adequate evaluation of the need for corrective action and delineation of steps to make corrective
action, if needed, be accomplished. DER did not require that an adequate corrective action plan be submitted as a precondition to permit issuance.
DER has not determined and it has not been proven, what steps, if any, are necessary to prevent the movement of
fluid into a USDW through the 13 wells in question in the area of review. It has not yet been determined if any corrective steps are actually necessary with regard to those wells.
In any event, DER has taken the position that two conditions should be imposed on any grant of the permit. Those conditions known as "Special Conditions 34 and 35" would require Monsanto to perform further evaluation of the need for corrective action to prevent migration of fluid into the USDW through the wells in question. They would also require Monsanto to submit a corrective action plan for any wells which prove to require such action.
Special Condition 35, sought to be imposed by DER, would require as follows:
Within 30 days after submission of the corrective action evaluation plan (condition 34), the permittee shall provide the department with a corrective action plan for those wells requiring further action. The proposed corrective action plan may include, but not be limited to, monitoring near the site, replugging, or no action, and the rationale therefor. The plan shall
include a schedule for the proposed corrective action, and the permittee shall implement the plan in accordance with this schedule upon department approval. If the department finds that either the proposed corrective action or the schedule for its implementation is inadequate, the department shall inform the permittee of the reasons therefor and require the permittee to revise the plan within 10 days or the department shall prescribe a plan for corrective action.
DER interprets Rule 17-28.130(5) (a), Florida Administrative Code, to provide it with the authority to include Special Conditions in a permit for an existing injection well, which require the permittee to submit a revised corrective action plan within a specified time after issuance of the permit. Such permit conditions may specify the additional or different information necessary for approval of the corrective action plan and may mandate revision of the plan.
DER has, thus, applied Rule 17-28.130(5) (a),
Florida Administrative Code, by adding Special Conditions 34 and 35, which, taken together, "prescribe a plan of corrective action". DER's rationale is that it has continuing oversight authority to insure that the corrective action plan or its schedule of implementation, after permit issuance, is adequate. The Petitioner takes the position that the corrective action plan must be determined to be adequate before the permit can be issued. The Respondents take the position that nothing in the subject rule requires an approved or adequate corrective action plan as a precondition to permit issuance.
In fact, the corrective action plan contained in conditions 34 and 35 requires an adequate evaluation of wells needing further action. Since condition 35 requires a schedule for the implementation of any corrective action, with the requirement that the schedule be in accordance with continuing DER approval, and since the condition provides that DER may require revisions of the plan within a ten-day period if the corrective action plan itself or its schedule of implementation is inadequate, it is determined that adequate control measures exist to insure that an appropriate corrective action plan, if needed, will be implemented and enforced under DER's continuing authority authorized by its rules, the statutes, and the very language of condition 35, itself. Taken together, those conditions, which will be under the continuing enforcement authority of DER, will provide reasonable assurances that the regulatory prohibition embodied in the above-quoted rule against movement of formation or injected fluid into the USDW will not be allowed to occur.
Further, in this regard, Rule 17-28.130(5)(a),
Florida Administrative Code, is not plain or unambiguous. It does not specify whether the corrective action plan must actually be approved in final form prior to permit issuance or whether the
permit may be issued subject to mandatory conditions designed to arrive at an appropriate corrective action plan if it should prove to be needed. Because the rule does not indicate clearly that the permit must be issued only after a corrective action plan has been approved and adopted, as opposed to approval of the permit with a mandatory condition attached thereto that a corrective action plan will be arrived at, submitted, and shown to be adequate under the continuing oversight of DER, the rule must be interpreted so as to apply to a particular injection operation in a rational way in accordance with the legislative and regulatory intent underlying that rule.
DER's interpretation of the rule is reasonable and appears consistent with the legislative and regulatory intent expressed in Chapter 403, Florida Statutes, and Chapter 17-28, Florida Administrative Code. It allows the corrective action plan and the course of action designed to provide reasonable assurances that the USDW will not be contaminated to be tailored to the most up-to-date information obtained concerning the physical characteristics and conditions of those wells and what, if any, corrective action, as to their status, is needed. Such a revised corrective action plan is under DER's continuing enforcement authority and contains specified time schedules to insure that all steps shown to be necessary are taken on a timely basis. Thus, DER's interpretation of the rule to allow such a submission of a corrective action plan post-permit award appears reasonable under the circumstances pertaining in this case. If Special Conditions 34 and 35 are imposed on a grant of the permit and carried out under the continuing enforcement authority of DER, a plan of corrective action will have been prescribed in accordance with the rule and reasonable assurances that migration of prohibited fluid will not occur will have been provided.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of this proceeding.
The applicant for a challenged environmental permit, such as the UIC operation permit at issue in this case, must bear the burden to demonstrate its entitlement to that permit. See, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (1st DCA 1981).
In this case, DER and the permit applicant have established a prima facie case justifying grant of the permit. TN is has been established by the stipulations of the parties in this case, as well as the testimony and evidence and the agreed- upon conditions to be imposed upon issuance of that permit designed to provide reasonable assurances that DER rules will be adhered to. The record establishes that Monsanto has provided
reasonable assurances that continued operation of its underground injection system will conform to the requirements of all applicable statutes and rules. The conditions imposed upon the proposed operation permit have been shown to be sufficient to implement those requirements.
The issuance of a permit to operate a Class I injection well is governed by Chapter 403, Florida Statutes, in particular, Sections 403.021, 403.031, and 403.06;i, as well as Chapters 17-4 and 17-28, Florida Administrative Code.
Rule 17-4.070, Florida Administrative Code, authorizes DER to issue permits "only if the applicant affirmatively provides DER with reasonable assurances based on plans, test results and other information that the construction, expansion, modification, operation or activity of the installation will not discharge, emit, or cause pollution in contravention of DER standards or rules". See, Section 403.087(4), Florida Statutes.
Chapter 17-28, Florida Administrative Code, is a compilation of the standards and rules governing permitting of underground injection wells. While other DER rules are applicable to such a facility, these rules provide the primary standards and criteria. They are specifically applicable to a Class I underground injection well.
The stipulations of the parties and the evidence adduced established a prima facie case for Monsanto and DER that reasonable assurances have been provided that all applicable standards will be complied with so that the permit should issue. The Petitioner then had the burden to advance credible, competent evidence to show that DER's interpretation of the rules at issue is clearly erroneous. See, Florida Department of Transportation
v. J.W.C. Company, Inc., 396 So.2d at 788; Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716, 719 (Fla. 1983). The Petitioner has not carried that burden.
The Florida Supreme Court has determined that the standard of review in such matters involving the agency's interpretation of its own rules concerns whether the agency's interpretation is clearly erroneous. In Pan American World Airways, Inc., supra, the court stated:
We have long recognized that the administrative construction of a statute by an agency or body responsible for the statutes administration is entitled to great weight and should not be overturned unless clearly erroneous, [citation omitted]. The same deference has been accorded to rules which have been in effect over an extended period. ..and to the meaning assigned to them by officials charged with their administration. [citation omitted]. Administrative agency expertise and regulatory interpretation has been similarly acknowledged in the federal courts. In Curtis v. Taylor, 625 F.2d 645, 654 (5th Cir.), modified, rehearing denied, 648 F.2d 946 (5th Cir. 1980), the Circuit
Court of Appeals held that an agency's interpretation of a regulation it has promulgated is entitled to deference when the meaning of the regulation is not clear. The Fifth Circuit has also concluded that if an agency's interpretation of its own regulation is merely one of several reasonable alternatives, it must stand even though it may not appear as reasonable as some other alternatives. Expedient Services, Inc. v. Weaver, 614 F.2d 56 (5th Cir.
1980).
Pan American World Airways, Inc. v. Florida Public Service Commission, supra. The First District Court of Appeals has also addressed this question stating: "The reviewing court will defer to any interpretation within the range of possible interpretation." Natelson v. Department of Insurance, 454 So.2d
31 (Fla. 1st DCA 1984) (emphasis in original). In Reedy Creek Improvement District v. Florida Department of Environmental Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986), the court stated that: "An agency's interpretation of its own rules or operable statutes is entitled to great deference." The Florida Supreme Court has also recognized that the problems and their solutions, addressed by environmental protection legislation, "are the subject of a highly technical disciplinary science". See, State v. Hamilton, 388 So.2d 561, 563 (Fla. 1980). In Island Harbor Beach Club v. Department of Natural Resources, 495 So.2d 209 (Fla. 1st DCA 1986), cert. denied, 503 So.2d 327 (Fla. 1987), the court recognized the legislative intent to entrust the explication of technical and scientific rules to the special expertise of the agency and adopted a highly deferential standard of review. In that case, such technical and complex matters were found to be:
A matter of agency discretion that should not be set aside absence a showing that the agency's action is either arbitrary, capricious, an abuse of discretion, or not reasonably related to the statutory purpose. To this extent, therefore, we approve the federal standard. as that standard accords great deference to the policy making discretion and expertise of regulatory agencies.
Id. at 217-218.
A party challenging such an agency rule interpretation must demonstrate that it is clearly erroneous. Rule 17- 28.310(2)(b), Florida Administrative Code, stated: "No underground injection control permit shall be authorized where a Class I or III well causes or allows movement of fluid into underground sources of drinking water." DER has consistently interpreted that provision, since its adoption in 1981, to prohibit the movement of any fluid into any aquifer which is a
USDW and which overlies the permitted injection zone. DER has never interpreted the rule to prohibit movement of formation fluid, defined as fluid present in a formation under natural conditions, as opposed to introduced fluids, into a USDW within the injection zone.
DER has instead evaluated such movement on a case-by- case basis, considering all of the facts and circumstances surrounding a given injection system and the likelihood of any harm to humans resulting from the effects of that injection system, as shown by witness, Leslie Bell Shannon.
A USDW is defined as an aquifer or portion of one which supplies drinking water for human consumption or which is
classified as "G-II waters" and which is not an exempted aquifer. Class G-II waters include ground water designated for potable water in an aquifer which has a TDS content of less than 10,000 MG/L.
The movement of formation fluid into a USDW within the injection zone, which is the movement at issue in this proceeding, is like a ripple moving progressively across the surface of a pond getting weaker and more diffused as it moves from the source. The movement is radial, progressive and proportionate. Formation fluid having a TDS concentration of over 10,000 MG/L eventually displaces fluid having a concentration of less until the pressure increase from the injection activity has dissipated sufficiently due to distance and other factors so that the change in the TDS level in the injection zone is no longer discernible.
The relevant effect of this movement of formation fluid is the displacement of the projected "line", within the injection zone, which separates fluid containing a TDS concentration of 10,000 MG/L from that which has a concentration of 9,999 MG/L. This line is referred to as the 10,000 MG/L TDS isopleth, as mentioned above. DER evaluates the displacement of this isopleth, if any, caused by an injection operation on a
case-by-case basis, as shown by the testimony of witness Shannon. DER's interpretation of the rule has been predicated on a construction of relevant provisions of Chapter 403, Florida Statutes, and the whole of Chapter 17-28, Florida Administrative Code.
Florida statutory authority to regulate underground injection declares that State policy shall "insure that existing and potential drinking water resources of the S ate remain free from harmful quantities of contaminants". Section 403.021(1),(2),(6) and (10), Florida Statutes, are designed to prevent pollution of the waters of the State. Each of these provisions is based upon the control of contaminants or the causation of harm. Indeed, Section 403.031(7), Florida Statutes, defines pollution as the presence of contaminants which are potentially harmful or injurious to human health or welfare. The legislature has charged DER with authority and primary responsibility to use its technical expertise to adopt specific
rules implementing the statutory directives. See, Sections 403.061(4),(6),(7),(10) and (14), Florida Statutes.
DER's interpretation of Rule 17-28.310(2)(b), Florida Administrative Code, comports with these statutory provisions. Since the statute only authorizes regulation of "pollution" which is limited to harmful substances in harmful quantities, DER has been vested with the discretion to determine under what circumstances movement of fluid into a USDW within the injection zone is prohibited. This discretion is exercised by DER with regard to such fluid movement on a case-by-case basis. See, depositions of Aller and Shannon.
DER's interpretation of this rule accords with the regulatory scheme promulgated under Chapter 17-28, Florida Administrative Code, taken as a whole. The State rules establish specific technical criteria and standards for each type of injection activity which may be authorized by permit. The first section of Chapter 17-28, Florida Administrative Code, clearly states-that the purpose of the UIC program is the containment of injected fluids within the injection zone and the protection of USDW's adjacent to the injection zone. DER has interpreted that Rule, 17-28.011(1) (a), Florida Administrative Code, as emphasizing prevention of degradation of aquifers adjacent to the injection zone (not in it) and insuring that injected fluid remains in the injection zone and that no unapproved interchange of water between aquifers occurs. DER has, thus, interpreted Rule 17-28.310(2)(b), Florida Administrative Code, to protect other aquifers adjacent to the injection zone by prohibiting the movement of fluid out of the zone. Interpretation of the subject rule so as to absolutely prohibit movement of formation fluid into a USDW, already within the injection zone, would not advance the stated purposes of the regulatory scheme because such an interpretation would not address movement of fluid from the injection zone into another zone. There is no dispute concerning the propriety of the location of the injection zone in this proceeding. Thus, DER's interpretation of Rule 17-28.310(2)(b), Florida Administrative Code, is both reasonable and consistent with the legislative and regulatory intent.
Whether DER's Interpretation of Rule 17-28.310(2) (b) is Clearly Erroneous
In the context of underground injection activity, fluid movement can occur in a variety of ways. It may be described as "vertical" or "lateral" or as into a USDW. The fluid may be injection fluid or formation fluid. Only one type of movement is at issue in this proceeding, however: the movement of formation fluid into a USDW within the injection zone.
Formation fluid which is displaced by injection activity will displace other formation fluids at a greater distance from the well bore within the injection zone. If the injection zone has two portions, one of which is a USDW and one of which is not, formation fluid may move from the non-USDW portion into the USDW portion. It is this type of movement only
which is at issue in this proceeding. The dispute concerns the extent to which DER's UIC rules prohibit the movement of formation fluid caused by injection activity into a USDW which occurs within the intended and permitted injection ozone.
Neither DER nor Monsanto maintain that the UIC rules do not regulate the movement of formation fluid into USDW's within the injection zone. Rather, DER has consistently
maintained that such movement is regulated, but on a case-by-case basis, not as an absolute prohibition of such movement. In other words, DER will take into account the circumstances in determining the extent to which, if any, such movement should be controlled, either by permit conditions or, in extreme cases, by permit denial.
DER does not assert that only fluid movement which causes a violation of a primary drinking water standard or otherwise adversely effects human health is prohibited, but rather the rule means that all the effects of fluid movement within the injection zone should be considered on a case-by-case basis, including the primary drinking water standards or other standards, as well as including the degree of movement, the volume of fluid displaced, the quality of affected fluids, the extent of natural fluctuations in TDS concentrations, and the permanence of the changes effected.
The Petitioner interprets the subject rule to mean that all fluid movement, both formation and injected fluid, vertically and laterally into a USDW, is strictly prohibited.
Under such an interpretation, however, movement of even drinking- water-quality formation fluid into a USDW would be absolutely prohibited. If injection activity caused the movement of fluid with a TDS concentration of only 100 MG/L into a USDW within the injection zone where the concentration of TDS is 9,000 MG/L, that movement would be absolutely prohibited, even though it would clearly enhance the quality of the water in the USDW. Thus, for these reasons, DER has and continues to look at such fluid movements in the context of the given set of circumstances with which it is confronted in a case at hand, rather than interpreting the rule to mean an absolute prohibition of any such movement of fluid.
The Petitioner has argued that Chapter 403, Florida Statutes, requires DER to adopt by rule an absolute prohibition of fluid movement into USDW's without regard to attendant circumstances. Nothing in Chapter 403, Florida Statutes, however, expresses any absolute prohibition of the movement of all fluids under all circumstances into a USDW within the injection zone. The statute, rather, protects existing and potential drinking water sources from harmful quantities of harmful substances and is designed to prevent pollution of waters of the State. It authorizes DER to establish technical rules to fulfill those purposes. Sections 403.021(1),(2),(6) and (10) and Section 403.031(7), Florida Statutes. These statutory provisions, on which this rule is based, contradict LEAF's position, since these authorities are only addressed to prohibiting activities which cause harm.
Both the DER and the EPA rules, which the parties have addressed in their memoranda, are predicated on a "harmfulness" standard, in accordance with their enabling statutes. See, Petitioner's exhibit 7. In both cases, the standard of harm is the same: presence in protected waters of substances in quantities which may be potentially harmful or injurious to human health. In DER's application for "primacy" over the UIC program in Florida, submitted to the EPA in 1982, and in DER's response to the EPA's comments concerning that application, the scope of prohibited movement of fluid under Florida law was further defined:
The department considers migration of fluids to be pollution. The presence of injected or formation fluids (any substance) in an underground source of drinking water (waters of the State) would indicate that the confining zone had failed and migration was occurring, and Florida's principal water supply was threatened (...at levels potentially harmful to human health or welfare.
Thus, DER's movement prohibition is expressly tied to the integrity of the "confining zone". DER's reference to fluid movement out of the injection zone is into other formations and not with reference to prohibition of movement within the injection zone, itself. Later in the same discussion concerning its primacy application, DER wrote to EPA:
More specific language to achieve this purpose is found in Section 17-28.021(1), where `modifying the ambient water quality of other aquifers overlying the injection zone' (which would indicate fluid migration) is not
acceptable...Section 17-28.021(1) (a) also goes beyond 40 CFR Part 146.12(b) and 146.32(a) by adding `and to maintain the quality of aquifers above the injection zone that may be used for monitoring or other purposes'. (emphasis added)
Thus, it can be seen that neither the express language of Chapter 403, Florida Statutes, nor DER's interpretation of those provisions in the 1982 primacy applications support an interpretation of Rules 17-28.310(2) (b), Florida Administrative Code, as involving an absolute prohibition of fluid movement. Those authorities support, however, a full consideration of all attendant circumstances to determine the extent of potential harm caused by injection activity in each particular case. This is the case-by-case analysis which DER has advocated in this case and has historically employed in its interpretation and application of the rule.
LEAF maintains that the regulatory scheme of Chapter 17-28, Florida Administrative Code, read as a whole and in pari materia with Rule 17-28.310(2) (b), Florida Administrative Code,
requires the absolute prohibition of movement of formation fluid, and the Petitioner places considerable emphasis on the statement of purpose for Chapter 17-28, at Rule 17-28.011(1)(a), Florida Administrative Code. LEAF misconstrues that statement of purpose. That statement, as mentioned above, clearly expresses the overall intent of the UIC program to protect other sources of drinking water adjacent to the injection zone. Nothing in that statement of intent suggests that a USDW already within the injection zone is entitled to the same level of protection.
Although Dr. DeHan's testimony referenced concern with lateral movement of fluid, as well as vertical movement, he was testifying in terms of containment of the injected fluid and its effects on adjoining USDW's. In his support of vertical and lateral confinement, he was referring to injected fluids being contained within the injection zone and was referring to preventing movement out of the injection zone into an adjacent aquifer. However, that type of movement out of the injection zone is not at issue in this proceeding.
Dr. DeHan's testimony does not support the Petitioner's interpretation of the rule at issue as an absolute prohibition of movement of formation fluid into a USDW inside or within the injection zone. Dr. DeHan opined that such movement was subject to evaluation by DER on a case-by-case basis in its permitting process. He stated that the permit-issuing agency should exercise its discretion to take into account such factors as natural fluctuations in the TDS isopleth and anticipated time
for the isopleth to re-establish its pre-injection position after cessation of injection, in determining whether, in a given case, an operation should be required to seek an aquifer exemption.
Thus, it can be seen that LEAF's witness, Dr. DeHan, also, in effect, supported the case-by-case approach advocated by the Respondents in interpreting and applying the subject rule concerning fluid movement.
LEAF, in addition to its reliance on the "statement
of purpose" in Chapter 17-28, Florida Administrative Code, relies on the technical criteria and standards in that chapter. Those technical criteria are identical to the standards established by the EPA at 40 CFR Part 146. LEAF argues that the Department's technical standards, like the EPA's, are specifically designed to prevent or detect the movement of fluids into USDW's, no matter where the USDW's is located in relation to the injection zone, even within it. Each of these technical standards however is designed to prevent vertical movement of fluid into a USDW across or around a confining bed or strata. None of the technical requirements in Chapter 17-28 could operate to prevent lateral movement of formation fluid into a USDW. In regard to such movement, Florida's technical standards, like the EPA's, are quite silent. The reason for that silence is simple. There is no absolute prohibition of such movement into a USDW which exists in the already-approved injection zone. Such movement rather is addressed, if at all, on a case-by-case analysis basis designed
to determine if any harm or violation of specific standards in the peculiar circumstance involved will occur.
The Petitioner references Rule 17-28.130(4) (a) and (5)(a), Florida Administrative Code, as evidencing a concern with the lateral distance from a well where pressure effects caused by the injection well result in movement of fluid into an underground source of drinking water. These rules concerning "area of review" and "corrective action" requirements are designed really to identify and address improperly sealed, completed or abandoned well bores which penetrate the confining layer separating an injection zone from an overlying USDW. They are designed to insure that potential pathways for migration of fluids out of the injection zone into overlying USDW's are minimized. Although the area of review and corrective action requirements do require examination of an area which can only be described in relation to the surface location of the injection well and an area around the well, which extends "laterally" on the land surface, the Petitioner seeks to interpret that general concern for the geographic sense of "lateral" as a specific and absolute prohibition of "lateral" movement of formation fluid within the injection zone.
That interpretation is misplaced. The purpose of investigation of abandoned wells in an area of review under these two rules, is the identification of abandoned wells which could serve as pathways for migration of fluids out of the injection zone and into overlying USDW's. These rules are thus concerned with the potential for movement of injected fluid vertically into an overlying USDW or at least into an adjacent USDW not existing within the injection zone itself. The technical requirements in these two rules thus have no relation to the issues in this case.
LEAF also relies on Rules 17-28.210(2) (a), Florida Administrative Code, which requires an applicant to demonstrate the presence and adequacy of a confining zone above the injection zone. LEAF acknowledges that this provision explicitly addresses prevention of movement of injected fluid (only) into USDW's. However, LEAF cites the explicit limitation in this rule against movement of injected fluid as indicating that where other technical requirements employ only the unmodified word "fluid" they refer to both injected and formation fluid. Although the term "fluid" can clearly mean both injected and formation fluid, unless the context clearly indicates otherwise, the manner in which specific fluids are regulated is dependent on the particular circumstance of each case. The fact that such a cardinal principle as the requirement for an adequate confining zone is expressly limited to migration of injected fluids militates against LEAF's view of an absolute prohibition of movement of formation fluid as well into a USDW within the injection zone itself. There is no requirement for confining bed between a USDW and non-USDW portions of the injection zone itself. Dr. DeHan testified that confinement of injected fluid is the key issue in underground injection control. It is, therefore, significant that the technical criteria and standards in the DER's rules do not require a confining zone separating the USDW and non-USDW portions of the injection zone itself.
The casing and cementing requirements for wells set forth at Rule 17-28.220(1) (a), Florida Administrative Code, also relied upon by the Petitioner, are designed to prevent unauthorized vertical movement of fluid into an overlying USDW by preventing leaks from a well bore itself into formations through which a well passes which might be a drinking water source. This requirement is designed to ensure that injection fluid actually reaches the intended location, the injection zone.
LEAF also relies on Rule 17.28.210(1)(l) Florida Administrative Code, which gives DER discretionary authority to require regional information from a permit applicant which "will allow prediction of the regional impact of the proposed injection well." This regulatory concern with "lateral direction" does not support the Petitioner's interpretation of Rule 17-28.310(2)(b), Florida Administrative Code as absolutely prohibiting lateral movement of formation fluid within an injection zone. This discretionary authority to request "regional effect" type information is designed to assist the permit issuer in evaluating the regional impacts of injection activity on a case-by-case basis. Nothing in this rule, especially its discretionary nature, provides the absolute prohibition of movement of formation fluid within the injection zone advocated by the Petitioner.
Rule 17-28.230(1) (a) , Florida Administrative Code, provides:
"To preserve the integrity of the formations, bottom hole (including hydrostatic) pressure will not exceed a maximum so as to insure that the injection pressure does not initiate new fracture factors or propagate existing fractures in the injection zone, significantly alter the fluid movement capabilities of the confining zone, or cause a movement of injection or formation fluid into an underground source of drinking water or into an essential monitoring zone."
LEAF asserts that this provision supports its theory that all movement of all fluids into a USDW within the injection zone is absolutely prohibited. This interpretation of the rule is inapposite. The rule sets forth a series of four prohibited effects of excessive injection pressure. The first three clearly and unambiguously refer to the goal of confinement of fluids in the injection zone in an attempt to control vertical movement of those fluids from the injection zone into another formation. The initial clause of the rule clearly sets the tone of the rule's meaning where it refers to preserving the integrity of the formations. The first three effects of excessive injection pressure referenced in the rule refer to the integrity of the injection zone and the confining zone. The overall sense of the
rule clearly shows a concern for movement of fluid out of the injection zone into adjacent formations.
The fourth prohibitive effect in this rule references the movement of fluids into an underground source of drinking water or into an essential monitoring zone. These do not specifically refer to confinement or vertical movement, standing alone, however, the well-established principle of construction, ejusdem generis provides that "where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceding and more confining terms." Halifax Area Council v. City of Daytona Beach, 385 So.2d
184 (Fla. 5th DCA 1980). This principle must control "unless an intention to the contrary is clearly shown". Soverino v. State of Florida, 356 So.2d 269 (Fla. 1978). Since the rule does not clearly manifest any contrary intent, the reference to ?movement of injection or formation fluid" into a USDW or an essential monitoring zone must be interpreted to refer to other forms of movement from the injection zone through a confining zone or into other adjacent formations, rather than mere movement of formation fluid within the injection zone itself.
This construction is consistent with the reference in that phrase to "essential monitoring zones." Those zones are formations which a Class I Well Permittee is required to monitor in all cases. Permittees are required to monitor aquifers overlying the injection zone, as well as the injection zone itself, but only for the movement of injected fluid. This provision was not intended to address movement of formation fluid within an injection zone.
This provision then addresses only the issue of confinement of fluids within the injection zone. The general reference to movement of fluids must be construed, in that context, to refer to movement of formation or injected fluids out of the injection zone into some other formation which happens to be a USDW. This rule in no way supports the view that movement of fluids within the injection zone itself is absolutely prohibited.
Another technical requirement relied upon by Petitioner in support of its argument that the disputed Rule
provides for an absolute prohibition of the movement of formation fluid is Rule 17-28.250(1)(a), Florida Administrative Code. This rule requires placement of monitoring wells in USDW's which overlie the injection zone. Additionally monitoring wells are required to assess the extent of movement of injected fluid within the injection zone. The Department is given discretion in this rule to require regional monitoring on a case-by-case basis which could include monitoring of any movement of formation fluids. This rule, however, clearly shows its discretionary nature on its face by indicating that the Department may regulate regional impacts on a case-by-case basis. It does not suggest the absolute prohibition of any movement of formation fluid within the injection zone. It merely provides that the
Department may discretionarily require monitoring of such injected fluid and, implicitly, formation fluid.
In fact no monitoring requirement exists in the Department's body of rules designed to detect the movement of formation fluid into a USDW within the injection zone itself, the circumstance involved in this proceeding. The monitoring requirements are rather intended to detect movement of fluids out of the injection zone into other adjacent formations, so as to detect any failure of the confining zone and to determine the extent of movement of injected fluids within the injection zone.
Likewise, the plugging and abandonment requirements set out at Rule 17-28.270(2), Florida Administrative Code, in reality mandate that a Permittee plug each injection well and each monitoring well at the end of its useful life. The
requirements contained in this rule are designed simply to insure that the wells do not become potential pathways for vertical migration of fluids into USDW's overlying an injection zone and a confinement zone through leaks in the well casing, etc. They have no relation to an absolute prohibition of movement of formation fluid into a USDW within the injection zone. In fact, there is only one regulatory provision which addresses the potential movement of formation fluid within the injection zone, Rule 17-28.210(1)(a), Florida Administrative Code. It requires an assessment of the lateral position of the 10,000 MG/LTDS isopleth location in the injection zone waters by a permit applicant. This requirement is designed to afford the Department an opportunity to evaluate injection activity effects on USDW's within the injection zone, but does not impose any specific requirements to address those anticipated impacts. This rule only requires an assessment of the initial position of the relevant isopleth and does not even require an assessment of its projected displacement once injection activity begins.
In summary, there has been shown no mandatory requirement in the Department's technical rules applicable to Class I underground injection wells which are specifically designed to detect or control the lateral movement of formation fluid into a USDW within the injection zone itself. Only a few technical requirements applicable to Class I wells provide DER with discretion to fashion conditions which would address the movement of formation fluid into a USDW within the injection zone on a case-by-case basis only. The discretionary nature of those requirements underscores the Department's authority to impose some requirements or no requirements as it deems appropriate based on the circumstances presented in a given case. These technical requirements in the rules enumerated above have not been shown to support an absolute prohibition of any such movement.
The Petitioner also contends that when the disputed rule was adopted, it was first interpreted as providing for an absolute prohibition of fluid movement into a USDW in all circumstances. LEAF maintains that the Department changed that interpretation more recently, based upon EPA's subsequent change in its similar rule.
The Petitioner maintains that EPA originally established an absolute "no migration" standard in its rules, but relaxed that standard, after a subsequent legal challenge, so that the current standard determines violations based upon primary drinking water regulations and potential health effects. The Petitioner asserts that, although the standard thus became more flexible and discretionary, the special technical requirements which must be read in conjunction with the
"movement of fluid" standard continued to operate to ensure an absolute prohibition of movement of fluids into a USDW. The Petitioner cites various provisions of the technical standards of EPA which are essentially identical to those Florida technical standards discussed above. None of these EPA technical standards concerning corrective action, "area of review", plugging and abandonment requirements, etc., offer any support for the theory that an absolute prohibition of movement of any fluid into a USDW within the injection zone prevails. A careful analysis of the preambles to the EPA's rules demonstrate that that agency has never been concerned about movement of formation fluid into a USDW.
Both the DER's and the EPA's rules (upon which the DER's are based) generally are designed to protect USDW's. However, each of those technical requirements specifically is designed to prevent the vertical movement of fluid into a USDW either across or around a confining bed. None of those technical requirements could or was intended to, operate to prevent lateral movement of formation fluid into a USDW within the injection zone in the circumstance, as exists herein, of a USDW being not separated from the injection zone by any confining bed or formation.
The Petitioner asserts its claim that an absolute prohibition of such movement was asserted by EPA in its interpretation of that rule by reference to various EPA documents in evidence. Those documents do not evidence any interpretation of the EPA regulations, either past or present, which involve an absolute prohibition of movement of formation fluid in the manner at issue. In fact, review of the federal EIC requirements, including both proposed and final regulations and their preambles and developmental documents, in evidence, has revealed only three references to lateral displacement of formation fluid in those published EPA documents. None of them support the conclusion that the EPA has interpreted its original standard as involving an absolute prohibition of movement of formation fluid as described above, for the reasons treated in the Respondent's brief at pages 48-55. The evidence of record in this proceeding establishes no basis for concluding that the EPA has ever espoused such an interpretation of its regulations and it cannot be concluded that the Department adopted such an interpretation by its adoption of the rule which is similar to the EPA's original fluid movement regulation.
Based upon documents in evidence concerning the EPA's rule change in 1982, the Petitioner asserts that the EPA changed its standards concerning movement of fluid while Florida retained
its initial rule which was identical to the EPA's original 1980 standard. This is reputed to show an intent by the DER to retain a strict prohibition against movement of formation fluids within the injection zone. In 1982, EPA changed its standard to prohibit movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of primary drinking water regulations or otherwise adversely affect human health.
Although, when EPA changed its standard, Florida retained its original rule language. There is no evidence of record to indicate that the DER rule was interpreted to the effect that such movement is absolutely prohibited. Firstly, there is no evidence to indicate that the EPA ever interpreted its original standard to constitute an absolute prohibition of movement of formation fluid, either before or after the 1982 change, for the reasons discussed above. Secondly, the DER's decision to retain the so-called "no migration" standard had nothing to do with the movement of formation fluid within the injection zone, but rather related to its interpretation that movement of fluid, including formation fluid, across confining zones through hydraulic connections, or otherwise, was the area of agency concern.
Although the DER did consider amending its rule following the EPA change to a "movement of contaminants" standard, the agency abandoned that effort; and the documents in evidence (Petitioner's Exhibit I), consisting of the economic impact statement for that proposed rule revision, reveal that the proposed amendments only would have altered the classification of those substances, the movement of which could be regulated under the rule. The change would not have altered the type of movement addressed. The type of movement with which the agency was concerned under the existing rule or the 1984 proposed changes still related to movement from one aquifer or formation to another. Neither the existing rule nor the documents in evidence concerning the proposed changes show any intent by the Department to forbid movement of formation fluid within the injection zone itself, at any time since the rule was enacted. The same can be said of Petitioner's Exhibits 8 and 9, in evidence.
The interpretation of Rule 17-28.310(2)(b), Florida Administrative Code, by DER and Monsanto, as allowing for a case specific analysis of the effects of formation fluid movement into an USDW, would not render the "aquifer exemption", set forth in Rule 17-28.130(3)(c), meaningless. The Petitioner contends, in effect, that the factors that would be considered by the Department in determining the extent to which movement of formation fluid within an injection zone should be regulated through permitting are the same factors it would consider in determining whether an aquifer exemption should be granted. Its interpretation of Rule 17-28.310(2)(b), as allowing for a case- by-case analysis of the effects of formation fluid movement, would, thus, render the aquifer exemption process a duplicative exercise, according to LEAF. Thus, the Petitioner asserts that the Department's interpretation of that rule is, therefore, erroneous because it would effectively nullify the aquifer exemption process and rule.
Witnesses Shannon and Aller, however, testified that they would consider factors similar to those considered in an aquifer exemption application, among others, in evaluating the extent to which movement of formation fluid within an injection zone should be regulated in a given case. Moreover, one of those witnesses, Mr. Aller, also indicated that the exemption process does not suggest an interpretation of the subject-rule concerning movement of fluid, to be an absolute prohibition of the movement of formation fluid into a USDW within the injection zone, but that an aquifer exemption could be available to a permittee, in the event the Department determined, in a given case, that the impact of formation fluid movement was so great or otherwise could not be controlled through permit conditions, such that the aquifer exemption would become necessary in order for the injection wells to be permitted. The testimony of these witnesses was unrefuted.
The interpretation sought to be ascribed to the rule by the Petitioner also ignores Rule 17-28.210(1) (a), Florida
Administrative Code, which, in addition to requiring an applicant to assess the lateral position of the 10,000 MG/L isopleth, also authorizes DER to request regional information, to predict the regional effect of an injection well. These provisions support the case-by-case approach to evaluating the effects of injection activity, without resort to the aquifer exemption process. It is also noteworthy that that same rule at paragraph (1)(b), concerning Class III mining wells, specifically mandates resort to the aquifer exemption process when the permittee cannot provide adequate assurances, while the immediately proceeding paragraph, concerning the Class I wells at issue, includes no similar reference.
Additionally, the aquifer exemption process has many other applications besides the circumstance of a USDW affected by formation fluid movement. That process, in fact, is available to any permittee to avoid any of the types of prohibited or restricted fluid movement into a USDW, provided the rule mandated conditions are met, as for example, when a permittee, who cannot demonstrate compliance with one or more of the technical criteria, proposes to inject directly into a USDW or the injected fluid is shown likely to migrate into a USDW. It has not been demonstrated that the Department interpretation of Rule 17- 28.310(2)(b), Florida Administrative Code, would render the separate and distinct aquifer exemption process and rule meaningless and, thus, that the proposed interpretation by DER is, therefore, unreasonable. The two rules were not found to be mutually exclusive, if the interpretation of the rule at issue allows for a case-by-case analysis of formation fluid movement.
Finally, the Petitioner argues that the Department's interpretation of Rule 17-28.310(2) (b) constitutes unauthorized rulemaking and that while statutory interpretations by agencies may be-given deference by courts, interpretations of rules are not to be given deference. Although Chapter 120 requires an agency to adopt as rules "policy statements of general applicability" and requires "agency proof of incipient policy not expressed in rules," MacDonald v. Department of Banking and
Finance, 346 So.2d 569, 577 (Fla. 1st DCA 1977), cert. denied,
368 So.2d 1370 (Fla. 1979), Chapter 120 does not require that interpretations of rules be adopted as rules or be subjected to rulemaking procedures. It is well established that an agency may rely on non-rule policy as long as it explicates and defends it in each case in which it is relied upon. The EPA requires only that an agency state the policy grounds for its action and respond appropriately to any challenge. The agency's official stated policy then becomes a precedent to which it must adhere or explain any deviation. Therefore, an agency may have non-rule policies and may interpret its rules on a case-by-case basis.
An administrative interpretation of an agency's own rule is entitled to great weight. See Franklin Ambulance Service
v. Department of Health and Rehabilitative Services, 450 So.2d 580, 581 (Fla. 1st DCA 1984); see also, Reedy Creek Improvement District v. Florida Department of Environmental Regulation, 486 So.2d 648. This deference is such that a reviewing court will only overturn an agency's rule interpretation where it is shown to be "clearly erroneous." Pan American World Airways v. Florida
P.S.C. 427 So.2d 719-20.
While an agency may interpret a rule, it may not construe it against its clear language without amending it. See, Boca Raton Artificial Kidney Center v. Florida Department of Health and Rehabilitative Services, 493 So.2d 1055, 1057 (Fla. 1st DCA 1986), and Decarion v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989). Here, however, the Department's interpretation of the subject rule, which is ambiguous on its face, does not constitute unauthorized rule making. The Department is not flouting the plain meaning of the disputed rule. The Petitioner has not proved that DER's interpretation of Rule 17-28.310(2) (b), Florida Administrative Code, is clearly erroneous.
The above found and stipulated facts, as well as the foregoing discussion and conclusions of law, reveal that the Department properly interpreted Rule 17-28.310(2)(b), Florida Administrative Code. The designation of both the USDW and non- USDW portions of the lower Floridan aquifer, as the injection zone, is not in dispute; and the Department was not required to designate only the non-USDW portion of that aquifer as the injection zone. There is no rule or policy which requires DER to designate only a portion of the aquifer as the injection zone. The parties specifically stipulated that the movement of formation fluid which results from the injection activity does not violate any standard in DER's rules, save for the question of whether the subject rule in all circumstances prohibits any movement of fluid into a USDW, including the movement of formation fluid within the injection zone.
It has not been established that the degree of lateral movement of formation fluid (2,000 feet in 70 years) and the minimal impacts on the aquifer resulting from it, warrant a permit denial, an aquifer exemption, or any additional conditions imposed on the permit. The Department's position as to the rule interpretation at issue has not been shown to be clearly
erroneous; and if that interpretation is applied in the final order disposing of this matter, it would be entitled to great deference by the reviewing court. See Pan American World Airways
v. Florida P.S.C., supra.
Monsanto and the Department have established a prima facie case in favor of the permit by virtue of the above-found facts. LEAF has not carried its burden to go forward with sufficient evidence to show that the rule interpretation upon which the Respondents' position is based is clearly erroneous. That interpretation is reasonably related to the overall intent and purpose of the underground injection control program embodied in the rules discussed herein. Thus, it is shown to be a reasonable interpretation and no evidence has been introduced to establish that the agency has departed from the meaning appearing in the language on the face of the rule. Therefore, deference should be given to the Department's interpretation. See Natelson
v. Department of Insurance, 454 So.2d at 32. Therefore, Rule 17- 28.310(2)(b), Florida Administrative Code, is interpreted to allow for a case-by-case analysis of the impacts of formation fluid movement into a USDW, including into such a source within the injection zone.
Rule 17-28.130(5) (a), Florida Administrative Code, provides that applicants for class one injection well permits shall identify the location of all known wells within the "area of review". For such wells which are in use or improperly sealed, completed, or abandoned, `the applicant shall submit a plan consistent with such steps or modifications as are necessary to prevent movement of fluid into USDWs. Where the plan is adequate, the Department shall incorporate it into the permit as a condition. Where the plan is determined upon review to be inadequate, based upon the factors in subsection (b) of the rule, the Department shall require the applicant to revise it and shall prescribe a plan for corrective action as a condition of the permit under subsection (b) of the rule or alternatively, deny the application.
The Department interprets this rule to allow it flexibility in determining in what manner it may require submission of a revised corrective action plan by a permittee. The Petitioner contends that the rule mandates only pre-permit submission of an approved corrective action plan.
The area of review prevailing in this proceeding has been established in the stipulated facts. Each applicant must identify the location of all known wells penetrating the injection zone or confining zone within that area of review, and must submit a corrective action plan for any wells which may be improperly sealed, completed or abandoned. The Corrective Action Plan (CAP) must specify steps necessary to prevent movement of fluid into underground sources of drinking water. The rule does not state whether DER must require the plans to be revised and submitted prior to permit issuance or whether the Department has the discretion to require revision of the CAP, and its submission after permit issuance, as a specific permit condition. Thus, to that extent, the rule is ambiguous and subject to interpretation.
See Zellwood Drainage and Water District v. St. John's River Water Management District, 11 FALR at 3336.
DER interprets this provision to provide it with flexibility to attach Special Conditions to permits requiring submission of a revised CAP, within a time certain, after issuance of the permit. The conditions may reference deficiencies in the original CAP and mandate their correction. The DER does not interpret the rule to provide the same flexibility in the context of a permit for a new injection well.
The Department's interpretation of the rule has been shown to be reasonable and consistent with the overall intent of the UIC control program embodied in the above discussed rules and rule chapter. DER interprets the rule to strictly regulate new injection wells so that all potential effects can be evaluated prior to initial authorization. However, for existing facilities, the issue only arises when the area of review is extended beyond that considered in the previous permitting proceeding or where additional abandoned wells have been identified. In these cases, the permittee is already injecting pursuant to a prior permit. Even if that permit has expired, a timely application for renewal authorizes continued injection under the terms of the expired permit. See Rule 17-4.090(1), Florida Administrative Code. Since the injection activity is already ongoing, there is no practical distinction as to whether the CAP is approved shortly before or shortly after permit renewal.
This interpretation is supported by Rule 17- 28.130(5)(c)1., Florida Administrative Code, which distinguishes between new and existing injection wells in prescribing corrective action time tables. This rule prohibits operation of a new well until corrective action is completed. However, for existing wells, a compliance schedule of up to three years is authorized, during which time any corrective actions can be completed which have been identified in a CAP. The Department has applied the same distinction between new and existing wells to paragraph (a) of the rule in order to determine whether a permittee CAP must be approved prior to permit issuance.
A time certain will be enforced for submission of a revised CAP and the implementation of the steps contained in it, once the steps are approved by DER. The implementation will be continually overseen by the Department. There has, thus, been shown to be no reasonable basis for requiring absolute approval of a CAP before permit issuance, as opposed to requiring submission of it shortly after, as a binding condition on the permit. This is especially true when it is seen that a permittee under the above-cited rules can have up to three years to comply with a corrective action plan for a pre-existing well, which is the case herein.
The Department's interpretation of this rule is entitled to great weight unless it is shown to be clearly erroneous under Pan American World Airways v. Florida P.S.C.,
supra. The evidenced adduced in-this record has failed to demonstrate that its interpretation is clearly erroneous.
DER would apply its interpretation of the rule concerning CAPs to the Monsanto permit situation by including two Special Conditions, Special Conditions 34 and 35, as described in the above findings of fact. Those conditions require further evaluation of need for corrective action regarding any identified abandoned wells within the area of review and require a further revised CAP submitted for those wells, if any, which might require corrective action. Those conditions fulfill the express requirements of the rule. Monsanto originally proposed an area of review with a radius of ten miles in its renewal application. It later agreed to a DER-established area of review with a radius of 15 miles. The adequacy of the size of that area is not contested. Monsanto identified 13 wells within that area of review in accordance with the above-cited rule. Those wells penetrate the confining zone of the Buccatuna Clay and into the injection zone, the lower Floridan aquifer. Those wells could be improperly sealed, completed or abandoned. The parties agree that no other such wells exist within the expanded area of review.
The revised CAP concluded, as to the 13 wells, that no corrective action was necessary. DER determined that the CAP was not adequate because it did not provide reasonable assurance that movement of fluid into a USDW through the 13 wells would be prevented. That determination was not disputed.
When DER determined that the need for additional information, as to the 13 wells, precluded approval of the CAP, it was allowed to do one of three things under the above rule:
(1) require revision of the plan; (2) prescribe a plan as a permit condition; or (3) deny the application. In reality, DER chose both alternatives (1) and (2). It added two conditions to the draft permit which require submission of a CAP addressing all
13 wells, incorporating objective information based upon established technical criteria and proposing which wells, if any, require corrective action. These conditions further require submission of an "evaluation plan" for DER review and comment prior to submission of the revised CAP. It is concluded that Special Conditions 34 and 35 of the Department's proposed draft permit, considered together, "prescribe a plan of corrective action".
By including Special Conditions 34 and 35 in the proposed permit, Rule 17-28.130(5) (a), Florida Administrative Code, will be complied with. The evidence does not show that the Department's interpretation of that rule as authorizing further evaluation and a revised plan submission, within a time certain, after permit issuance, is a clearly, erroneous interpretation. This interpretation is, therefore, entitled to great deference under the above-cited authority, since it has not been shown to be clearly erroneous by departing from the plain meaning of the language of the rule. (See pgs. 77-82 of Respondent's Brief).
Monsanto has operated a permitted injection system for over 25 years at the subject site. When the operating permit expired in 1987, it timely applied for renewal and was thereby entitled to operate under its expired permit pending final action on the renewal application. Had DER required it to further evaluate the need for corrective action and file a revised CAP prior to permit issuance, the applicant would still have continued to operate under the old permit while that activity was ongoing. However, DER determined that a more prudent course was to issue the new permit and require Monsanto to comply with the other new environmental requirements pertaining to the new permit while the corrective action evaluation is proceeding. The environmental risk, if any, of fluid movement out of the injection zone to an overlying aquifer or adjacent formation is the same in either case. The only difference is that under the approach proposed by DER, Monsanto would be operating under the newly-updated environmental operating conditions while the corrective action evaluation proceeds. Since the injection wells will be operating in any event, it seems a more prudent, rational interpretation and approach to issue the new permit, with new conditions and standards attached to it and let Monsanto's operation be controlled by those new standards, while Special Conditions 34 and 35 are being carried out.
If the draft permit and its conditions goes into effect, Monsanto will file a corrective action evaluation plan pursuant to special condition 34. That will be reviewed by the Department for approval or disapproval. That decision would constitute agency action affecting substantial interests for purposes of a challenge by Monsanto or third parties, like the Petitioner. Likewise, after the permit becomes effective and the evaluation plan is approved, Monsanto will still be required to file a revised CAP. Agency action approving or disapproving that CAP would open another point of entry for Monsanto or third parties.
In summary, it has been demonstrated that Special Conditions 34 and 35 pertaining to the draft permit conformed to both the letter and spirit of Rule 17-28.130(5) (a), Florida Administrative Code. Since the Department's interpretation of that rule to the effect that its requirements can be applied as conditions to be performed after permit issuance does not depart from the plain meaning of the language of the rule, that interpretation and application of the rule is reasonable and rational and now shown to be clearly erroneous. Such a course of action will not deprive any party of due process of law. Therefore, it is concluded that for the reasons enunciated herein, the permit should issue as proposed by the Department.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED: that a Final Order be entered authorizing
the issuance of an operation permit for the underground injection control system sought by Monsanto, with the conditions proposed by DER to be incorporated within that operation permit, including Special Conditions 34 and 35.
DONE AND ENTERED this 5th Tallahassee, Leon County, Florida.
day of March, 1990, in
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3628
Petitioner's Proposed Findings of Fact
1-4. Accepted, due to party stipulation.
Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, due to party stipulation.
Accepted.
Accepted.
Accepted.
Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not in itself materially dispositive.
Accepted, but not in itself materially dispositive.
Accepted, but not in itself materially dispositive.
Accepted, but not in itself materially dispositive.
Accepted.
Accepted, but not materially dispositive, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as contrary to the preponderant weight of th& evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's
findings of fact on this subject matter, and as a conclusion of law and not a proposed finding of fact.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as contrary to the preponderant weight of the evidence.
Accepted.
Accepted.
Accepted.
Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact and conclusions of law on this subject matter.
Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as constituting conclusions of law and as not being in accordance with the preponderant weight of the
evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as constituting conclusions of law and as not being in accordance with the preponderant weight of the
evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.
39-48. Accepted.
Respondent's Proposed Findings of Fact 1-7. Accepted.
8. Rejected, as not really material in this de novo proceeding.
9-13. Accepted.
14-22. Accepted.
23-26. Rejected, as not being proposed findings of fact, but rather, conclusions of law.
COPIES FURNISHED:
Mr. Dale H. Twachtmann Secretary
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, Esq. General Counsel
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
B. Suzi Ruhl, Esq.
David Ludder, Esq.
Legal Environmental Assistance Foundation, Inc.
203 North Gadsden Street Suite 7
Tallahassee, FL 32301
Cynthia K. Christen, Esq. Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
William D. Preston, Esq. Thomas M. DeRose, Esq.
Hopping Boyd Green & Sams First Florida Bank Building Suite 420
123 S. Calhoun Street Tallahassee, FL 32301
| Issue Date | Proceedings |
|---|---|
| Mar. 05, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 05, 1990 | Recommended Order | DER interpret rule regarding protecting acquifers adjacent to injection zone as prohibited movement of fluid out of inject zone, rather than prohibition move to acquifer |
