vs. ) CASE NO. 89-1452RP
Intervenor. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 24, 1988, at Tallahassee, Florida.
For Petitioner: Paul H. Amundson, Esquire
For Intervenor: William D. Preston, Esquire
Laura B. Pearce, Esquire
At the commencement of the hearing, Waste Management of Florida's Petition for leave to intervene in these proceedings was granted. Thereafter, the parties presented a prehearing stipulation to reduce the issues in these proceedings, Petitioner called four witnesses, Respondent called three witnesses and 23 exhibits were admitted into evidence. Findings 1 and 4-7 were taken from the Prehearing Stipulation.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.
The proposed amendments to Rule 17-2.600 and 17-2.710, Florida Administrative Code (the Rule) were published in the February 17, 1989 Florida Administrative Weekly, and were adopted by the Environmental Regulation Commission on March 22, 1989. MEDX timely filed a petition to challenge the Rule on March 13, 1989, prior to adoption.
Promulgation of the Rule resulted from Senate Bill 1192 later codified as Section 403.704(31), Florida Statutes, which directed the department to initiate rulemaking to address the management of biohazardous waste and biological waste within the state. This statute requires such rules to address on-site and off-site incineration as well as regulation of such waste from the point of original to final incineration. The Rule here involves only the incineration of this waste. Rule 17-712, Florida Administrative Code regulates off-site handling, transportation and disposal of biological waste, while proposed Rule 10D-104 (by DHRS) will regulate on-site handling and disposal of biological waste.
Biohazardous waste is generally any solid or liquid waste which may present a hazard of infections to humans. Biological waste is solid waste that causes or has the capacity of causing disease and infection, and includes, but is not limited to, biohazardous waste, diseased or dead animals, and other waste capable of transmitting pathogens to humans or animals.
The Rule sets emission and operating standards for incinerators which burn biological waste. The Rule sets different standards for different size incinerators, with the result that incinerators with a capacity of 500 pounds per hour (pph) or less, if properly constructed and operated, are likely to be able to meet the standards and the rules without the use of additional pollution control devices, such as scrubbers, depending upon the waste stream being incinerated. Incinerators with capacities of more than 500 pph are unlikely to be able to meet the standards in the Rule without the use of additional pollution control devices such as scrubbers, although it is possible that some may be able to meet these standards.
The incineration of a ton of biological waste in several 500 pph capacity incinerators without scrubbers is likely to emit more total particulates and hyrdogen chloride (HCl) into the air than would be the same ton of biological waste burned in a 2,000 pph incinerator equipped with a scrubber.
All biological waste incinerators, of whatever size, would be subject to all other applicable ambient air quality standards in addition to the minimum emission standards in the Rule and would be further subject to pollution limitations established for each area.
Proposed Rule 17-712 and Department of Health and Rehabilitative Services proposed Rule 10D-104, which together regulate the storage, treatment and disposal of biological waste, are likely to substantially increase the number of biological waste generators regulated by the State of Florida and are likely to increase the amount of biological waste regulated by the State of Florida. It is, therefore, likely that the amount of biological waste incinerated in the state, as well as the persons contracting with biological waste incinerator facilities, will increase as a result of these rules.
Currently, all incinerators with capacities of less than 50 tons per day (which includes all biological incinerators in this state) are exempt from air emission standards, with the exception of visible emissions and odor.
The Rule, by setting standards for particulate emissions and HCl emissions, as well as setting standards for residence time, carbon dioxide emissions, monitoring, operator training, and start-up and shut-down procedures, will impose more stringent requirements on all biological waste incinerators than currently exist, regardless of the size of the incinerator.
MEDX is a biohazardous waste transportation and disposal company founded in 1978. MEDX has two incinerators at its Miami facility with a combined capacity of 4500 pph. The older unit is rated at 2000 pph and the newer one at 2500 pph. During the last fiscal year, MEDX invested approximately
3.5 million dollars in its Dade County facility for pollution control devices, buildings and water containment.
The Dade County facility incinerates all biological waste treated by MEDX in Florida. Biological waste from northern and central Florida is collected by trucks operating out of Lakeland, Florida, from where this waste is transported on larger trucks to the Dade County facility for incineration.
As a result of emission control problems MEDX entered into a consent decree with Dade County in which MEDX agreed to equip its two Dade County incinerators with anti-pollution equipment (scrubbers) in 1989 at a cost of approximately $300,000 each.
Prior to promulgating the Rule, DER held workshops at which MEDX and all other interested parties were invited to participate and were given the opportunity to present evidence regarding the Rule and the economic impact of the Rule. Additionally, the Department considered studies by the Environmental Protection Agency, looked at incinerators operating in Florida, consulted with other professionals in the field, contacted other states and looked at their rules, and solicited written comments from affected parties.
As a result of these studies, it was concluded that the most important factor in reducing harmful emissions is to ensure good combustion. This is addressed in the Rule by requiring 1800 degrees F. operating temperature in the upper chamber, for a residence time of one second, with constant monitoring of this temperature and to require the use of trained incinerator operators.
It was further concluded that good combustion could be further ensured by monitoring carbon monoxide (CO) emissions and establishing a requirement that CO emissions not exceed 100 parts per million.
Manufacturers of incinerators were contacted to determine the minimum particulate emission attainable without control devices and these manufacturers agreed their incinerators could, if properly operated, attain a particulate limitation of 0.1 grain per dry standard cubic foot corrected to 7 percent oxygen. Accordingly, this standard was adopted.
A majority of these incinerators burn hospital waste which generally contains large quantities of polyvinyl chlorides (plastics) which, when burned, produces HCl. The amount of HCl emissions can be controlled to a large extent by controlling the amount of plastic that is put into the waste stream. Federal regulations for hazardous waste facilities require the hydrogen chloride emissions not exceed four pounds per hour. If the incinerator can't meet that limitation they have to provide 99 percent elimination. Since most incinerators with a capacity of less than 500 pph can meet this limitation of HCl emission, that standard was adopted and is consistent with the Federal rule.
Biohazardous waste incinerators are controlled air incinerators. Waste is loaded into a lower chamber which partially burns the waste creating a smoke which is burned and consumed in the upper chamber leaving, theoretically, carbon dioxide, nitrogen and water vapor. However, even the best incinerator
cannot reach complete combustion and some particulates remain. Also the burning of plastics which contains chlorine results in the emission of HCl.
Small incinerators with a capacity of less than 500 pph are generally referred to as batch incinerators because they are loaded with a batch of waste to burn and when that process is completed the incinerator is turned off, the ashes are removed and the incinerator is ready for another batch. Batch incinerators are usually run for 10 - 12 hours per day.
Another type incinerator is the continuous burn incinerator. This type incinerator generally has a capacity greater than 500 pph and is characterized by some mechanism which can continuously feed waste material into the incinerator and remove ashes without shutting dawn the incinerator.
In preparing the Rule DER conducted a survey of existing incinerators in Florida which dispose of biohazardous wastes and found the vast majority of these facilities have a capacity of less than 500 pph and a majority have a capacity of less than 200 pph (Exhibits 6 and 23).
Installing pollution control devices (scrubbers) on small incinerators with capacity less than 500 pph is not economically feasible because the amount of emission reduction will not justify the cost of the scrubbers. On the other hand, larger incinerators benefit from economies of scale which allows scrubbers to be cost effective in reducing pollutants. Without controls and assuming the same combustion, an incinerator with a capacity of 2,000 pph will emit four times the pollutants of a 500 pph capacity incinerator, assuming both operate the same number of hours per day. Accordingly, the concentration of harmful emissions will be much higher in the vicinity of the large incinerator than in the vicinity of the small incinerator. The concentration of HCl, for example, is more significant in determining the adverse impact than is the quantity of HCl emitted.
Petitioner's contention that the Rule will result in a proliferation of small incinerators and therefore lead to increased air pollution instead of a diminution of such pollution cannot be so. There is presently no control over any of these incinerators burning biohazardous wastes, except for visible emissions and odor; and even if the Rule did not limit the emissions which require scrubbers on the larger incinerators, the Rule would improve air quality simply by setting standards which will improve combustion in all of these incinerators. By limiting total emissions of HCl and particulates, the Rule will result in improved air quality.
ECONOMIC IMPACT STATEMENT
Pursuant to Section 120.54(2), Florida Statutes, an Economic Impact Statement (EIS) was prepared by the Department prior to adoption of the Rule. Section 120.54(2)(b), Florida Statutes provides the Economic Impact statement shall include:
An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;
An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
An estimate of the impact of the proposed action on competition and the open market for employment, if applicable;
A detailed statement of the data and method used in making each of the above estimates;
An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act (FSNBA) Act of 1985.
There is no issue that the EIS properly addresses the cost to the agency.
The estimated cost to persons affected by the Rule, in addition to permit fees, was estimated by the Department at $20,000 to $40,000 annually for incinerators with a capacity greater than 500 pph. This figure was arrived at by annualizing the cost of a scrubber over a 20 year period, and adding the annual operating costs of that scrubber. The costs for incinerators with a capacity of 500 pph or less was estimated as a one-time expense of $15,000 to
$20,000 to modify the incinerator to meet the retention time required by the Rule. No evidence was presented to refute the accuracy of these figures.
MEDX contends the EIS is fatally defective because it fails to include the transportation costs associated with the operation of large off-site incinerators. While MEDX obviously incurs large transportation costs in treating in its Dade County facility biohazardous wastes generated in the Florida panhandle, for example, the same costs are not involved in treating waste generated in South Florida. Even if the Rule may result in small
incinerators having a cost advantage in some areas over regional incinerators many miles away, it does not follow that large regional incinerators which are required to install scrubbers cannot compete economically with small incinerators located in the same general area, or that the EIS is fatally defective for not including such costs. Economies of scale will offset some of the additional costs involved in having to install scrubbers.
In addition to not including transportation costs, the EIS also did not include the cost of facility siting or construction which could vary greatly depending on whether the facility is on-site or off-site. The EIS addresses only the costs of complying with the Rule. The Rule sets emission and operating standards and the EIS addresses only the costs associated with complying with those standards.
Petitioner also challenges the statement in the EIS that the proposed revisions would benefit the public in reducing emissions in the air. The fallacy of that argument is pointed out in finding 23 above.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 120.52(8), Florida Statutes defines "invalid exercise of delegated legislative authority" to mean:
Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rule making procedures set forth in s. 120.54;
The agency has exceeded its grant of rule making authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of the law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
the rule is arbitrary or capricious.
Here, Petitioner's challenge to the proposed rule is based almost entirely on the fact that the Rule will not require the small incinerators, which presently account for the vast majority of the incinerators burning biohazardous wastes, to install scrubbers. No credible evidence was presented
to rebut the Department's conclusion that installing scrubbers on small incinerators is not economically feasible.
In contending that the Rule is an invalid exercise of delegated legislative authority, Petitioner contends only that the Rule is arbitrary or capricious; the Legislature specifically directed the agency to promulgate the Rule. No evidence was submitted suggesting the agency failed to follow the applicable rulemaking procedures; exceeded its grant of rulemaking authority; enlarged, modified, or contravened the specific provisions of the law implemented; or that the Rule is vague, fails to establish adequate standards, or vests unbridled discretion in the agency.
Section 120.54(2)(a), Florida Statutes provides in pertinent part: Each agency, prior to the adoption, amendment,
or repeal of any rule, shall consider the impact of such proposed action on small business as defined in the Florida Small and Minority Business Assistance Act of 1985, and, whenever possible shall tier such rule to reduce disproportionate impacts on small business and to avoid regulating small businesses which do not contribute significantly to the problem the rule is designed to regulate ... The agency shall consider each of the following methods for reducing the impact of the proposed rule on small business:
Establishing less stringent compliance or reporting requirements in the rule for small business.
Establishing less stringent schedules or deadlines in the rule for compliance or reporting requirements for small business.
Consolidating or simplifying the rule's compliance or reporting requirements for small business.
Establishing performance standards to replace design or operational standards in the rule for small business.
Exempting small business from any and all requirements of the rule.
While no specific evidence was presented regarding the number of the current operators of small incinerators who qualify as a small business, it is obvious that many would so qualify. The fact that the Rule takes into consideration those legislative mandates above quoted is hardly grounds for finding the Rule to be in conflict with the statute under which it was promulgated or is arbitrary or capricious and therefore an invalid exercise of delegated legislative authority.
Petitioner has the burden to prove, by a preponderance of the evidence, that the rule is an invalid exercise of delegated legislative authority. Balino v. Department of Health and Rehabilitative Services, 348 So.2d. 349 (Fla. 1st DCA 1977). The Rule is invalid if it is arbitrary or capricious. Agrico Chemical v. Department of Environmental Regulation, 365 So.2d 259 (Fla. 1st DCA 1978), or if in conflict with the statute under which it was promulgated. Department of Health and Rehabilitative Services v. McTigue,
387 So.2d 454 (Fla. 1st DCA 1980). The Rule may also be invalid if the economic impact statement is deficient. In determining the sufficiency of an EIS, the "Harmless Error Rule" requires a showing that the EIS impaired the fairness of the proceeding or the correctness of the action taken. Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983).
The EIS prepared in this case covered the statutory requirements of S. 120.54(2)(b), above quoted. While almost any EIS could be improved and expanded to cover most contingencies, the law does not require such exactitude. MEDX participated in the workshops and public hearings held by the department to gather information on which the Rule was predicated. MEDX Was given an opportunity to submit written comments on the proposed rule and its effects. MEDX now contends the EIS did not adequately address all costs associated with the operation of different size incinerators. While the EIS did not attempt to address all of the indirect impacts of the Rule, it did adequately address the direct impacts of the Rule on the agency, the public and the regulated community. Respondent can hardly be faulted for failing to make estimates on the basis of unknown variables. State, Department of Insurance v. Insurance Service Office, 434 So.2d 908 (Fla. 1st DCA 1983); Brewster v. State Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984). Furthermore, even if MEDX's argument that the EIS is defective had merit, they have failed to prove this to be a material error in procedure where the fairness of the proceeding or the correctness of the action was impaired by any of the alleged deficiencies. Polk v. School Board of Polk County, 373 So.2d 962 (Fla. 2nd DCA 1979). In Wright, supra at p. 941 the court held that, compiled conscientiously, an EIS can shield an otherwise valid rule from collateral attack on the basis that, as applied, the rule would be devastating economically and therefore arbitrary and capricious. The emphasis MEDX placed upon the effect of the Rule was not that the Rule would have devastating economic impact on large incinerators, but that the Rule would lead to a proliferation of small incinerators and result in an increase in the quantity of pollutants emitted from the burning of biohazardous waste. As noted above, while the Rule could lead to new installations of incinerators with a capacity of less than 500 pph, the overall effect of the Rule will be to improve air quality, if only by requiring more complete combustion and trained operators.
From the foregoing it is concluded that amendments to Rule 17-2.600 and 17- 2.710, Florida Administrative Code are not invalid exercises of delegated legislative authority and that the Economic Impact Statement adequately reflects the economic impact of the rules on the agency, the public, and the regulated community affected by the rule. It is, therefore,
ORDERED that MEDX's challenge to Rule 17-2.600 and 17-2.710, Florida Administrative Code be dismissed.
DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida.
K.N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1989.
12, 13, 14. Included in HO #20.
15, 16. Included in HO #18.
24, 25. Included in HO #4.
6, 7. Included in HO #13.
Paul H. Amundson, Esquire Julie Gallagher, Esquire
William D. Preston, Esquire Laura B. Pearce, Esquire
Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building
Daniel H. Thompson General Counsel
Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300
