STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF STUART, )

)

Petitioner, )

vs. ) CASE NO. 96-1112RU

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

The Petitioner, City of Stuart, Florida, filed a Motion for Summary Final Order. Argument on the motion was heard on June 18, 1996 by video teleconference.

APPEARANCES

For Petitioner: Carl V. M. Coffin, City Attorney City of Stuart

121 Southwest Flagler Avenue Stuart, Florida 34994

For Respondent: John L. Chaves, Esquire

Chris McGuire, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenors: Michael J. McCluskey, Esquire

Jane Cornett, Esquire

Wackeen, Cornett and Googe, P.A. Post Office Box 66

Stuart, Florida 34995 STATEMENT OF THE ISSUE

Whether Respondent's statement of a health-based level for arsenic concentration in soil of residential property is in violation of Section 120.54(1)(a), Florida Statutes, formerly Section 120.535.

PRELIMINARY STATEMENT

On August 15, 1995, the Respondent, Department of Environmental Protection (Department) issued a Notice of Permit Denial, denying Petitioner, City of Stuart's (City), application for a permit to maintenance dredge Krueger Creek. The basis for denial was that the arsenic level of the spoil exceeded the Department's health-based level and the City had failed to show that the project was not contrary to the public interest. The City filed a request for an administrative hearing on the denial. The case was forwarded to the Division of

Administrative Hearings for assignment to a hearing officer and was scheduled for final hearing on February 23, 1996 and later continued to April 12, 1996. DOAH Case No. 95-5110. On February 20, 1996, an Order was entered granting Nelo Freijomel and Albert Krueger's Petition to Intervene.

On March 1, 1996, the City filed the instant Petition for Formal Administrative Hearing pursuant to Section 120.535, Florida Statutes (1995), challenging the Department's unpromulgated statement of the health-based levels for arsenic concentration of soil on residential property, DOAH Case No. 96- 1112RU. The two cases were consolidated by Order entered March 26, 1996.

On May 14, 1996, the City filed a Motion for Summary Final Order in DOAH Case No. 96-1112RU. On May 22, 1996, the City filed Supplement to Motion for Summary Final Order. On June 17, 1996, the Intervenors and the Department filed responses to the motion. The motion was heard via video teleconference on June 18, 1996.

FINDINGS OF FACT

1. On June 17, 1994, Petitioner, City of Stuart (City), filed an application with the Department of Environmental Regulation, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to maintenance dredge Krueger Creek between the East Ocean Boulevard bridge and Tenth Street. The City proposed to suction dredge 7,500 cubic yards of sediment or spoil material to be placed on nearby retention sites for dewatering. The retention sites were vacant lots in a residential neighborhood. Some 2,500 cubic yards were to remain on the dewatering sites, and the remainder to be taken elsewhere.

   
   

2. On June 20, 1994, the Department sent a completeness letter to the City, requesting additional information. On October 4, 1994, the Department received and approved a complete sediment characterization plan.

   
   

3. By memorandum dated January 27, 1995, Ligia Mora-Applegate, an employee of the Department, sent out interim soil cleanup goals which were to be used by waste program administrators in determining final cleanup goals. The memorandum listed chemicals and the appropriate health-based goal for each chemical. For arsenic, the cleanup goal for an aggregate residential setting was .711 mg/kg. These goals had been developed by Dr. Stephen Roberts, a toxicologist employed by the University of Florida, under contract with the Department.

   
   

4. On February 2, 1995, the Department received additional information from the City, including sediment analysis results, responses to hydrographic questions, a description of operational methods, and revised spoil retention locations.

   
   

5. The Department reviewed the analyses submitted by the City. By memorandum dated February 27, 1995, Paul Wierzbicki, a Waste Cleanup Supervisor of the Department, advised Bruce Jerner, the Department employee who was reviewing the City's permit application, that

   
   

   Based on the analyses submitted it does not appear that the sediments will meet the guidance concentration of 0.7mg/kg as the cleanup criteria for soils. An alternative management plan should be proposed for the sediments.

6. On February 28, 1995, the Department advised the City that arsenic concentrations did not meet the Department's guidance criteria for metals at the proposed spoil disposal sites. The Department recommended alternatives for disposal of the spoil material or the performance of a site specific risk assessment for the spoil sites.

   
   

7. By letter dated March 14, 1995, Joseph Capra, the applicant's Project Engineer, advised the Department that the City disagreed with the Department's position that the arsenic levels exceeded the state standards based on Rule 17- 775, Florida Administrative Code which allows a maximum concentration of 10mg/kg of arsenic for the cleanup of petroleum contaminated soil at a soil thermal treatment facility. Mr. Capra asked the Department to reconsider its position and consider the application complete.

   
   

8. Staff from the Department's waste cleanup section reviewed Mr. Capra's letter and forwarded the following response to Mr. Jerner by memorandum dated March 29, 1995:

   
   

   1. The allowable maximum concentration of 10mg/kg for Arsenic referred to in the letter applies to petroleum contaminated

      soils and since this has not been identified as a petroleum contamination site would not necessarily be appropriate in this situation.

   2. Site specific risk assessments have always been an alternative when maximum contaminate levels are not otherwise specified. This level for Arsenic may have been used in the past for non-petroleum contaminated sites in lieu of a risk assessment since it is some- what risk based, is established in rule for specific sites, and based on the lack of any other updated risk information; however, the Department has obtained updated risk inform- ation for arsenic which is currently being incorporated into 62-770, F.A.C., the Petr- oleum Cleanup Rule first, with a 62-775

      F.A.C., update to follow.

   3. The difference in the exposure to aquatic organisms through sediments and direct human exposure by disposal of the dredged material on land has been explained to Mr. Capra along with some of the alternatives,

      to disposal in a residential area which may allow direct exposure, which may be accept- able to the Department based on further evaluation. The goal is not to jeopardize funding for the project but to provide reasonable assurance the disposal of the dredged material will not present a potential for harm to human health or the environment based on the latest technological information.

   4. Recommend Mr. Capra continue evaluating some of the disposal alternatives discussed, assuming Arsenic is the only contaminant of concern, such as:

      1. Evaluating background conditions at the original site or an alternate site.

      2. Using the material, within acceptable levels (<0.7mg/kg As), at the original site with disposal of the remainder at a lined landfill.

      3. Using material, with acceptable levels (<3.1 mg/kg As), at an industrial site with disposal of the remainder at a lined landfill.

      4. Using the material on the original site in such a manner as to prevent human exposure as long as ground water contamination is not an issue.

      5. Disposal at a lined landfill with approval from the operator.

         
         

9. On April 5, 1995 the interim soil cleanup goals were revised and transmitted to the waste program administrators by memorandum from Ms. Mora- Applegate. The goal for soil cleanup with arsenic in a residential setting was

   0.7 mg/kg (ppm).

   
   

10. By letter dated April 24, 1995, the Department advised Mr. Capra:

    
    

    The data you submitted on February 2, 1995 was reviewed by the DEP Waste Cleanup Section

    using the 'Updated Interim Soil Cleanup Goals' which were faxed to you on April 7, 1995.

    These guidance concentrations are in fact the levels which will be used to evaluate the dredged material and its ultimate destination.

    
    

    The Department also advised that the spoil material could be placed at a residential site if the average background arsenic levels at the spoil site met or exceeded the average of the creek sediment samples.

    
    

11. The City declined to provide additional information concerning the application.

    
    

12. On August 15, 1995, the Department issued a Notice of Permit Denial denying the application for the following reasons:

    
    

    Pursuant to Section 403.918(2), F.S., a permit may not be issued under Sections 403.91-403.929 unless the applicant provides the Department with reasonable assurance that the project is not contrary to the public interest. In determining whether or not the project is contrary to the public interest, the Department shall consider and balance

    the seven (7) criteria listed in Section 403.918(2)(a), F.S. This project is contrary to the public interest pursuant to Section 403.918(23)(a), F.S. because the project will:

    adversely affect the public health, safety, or welfare or the property of others;

    Specifically, the proposed disposal of dredged material with arsenic levels of greater

    than 0.7 mg/kg on two residential lots presents a potential for human harm based on the Departments (sic) health-based levels. The applicant has failed to demonstrate that site specific backgrounds are greater than or equal to the levels of arsenic in the dredged materials.

    The Department received a letter of objection on April 21, 1995 from an adjacent property owner requesting denial of the permit unless additional sediment testing is done

    and a suitable method of disposal is proposed.

    Therefore, the applicant has not provided reasonable assurance that the project to maintenance dredge is not contrary to or clearly in the public interest pursuant to Section 403.918(2), Florida Statutes.

    
    

    In drafting the notice of denial, Mr. Jerner relied on Ms. Mora-Applegate's memoranda dated January 27 and April 5, 1995, the memorandum from Mr. Wierzbicki dated February 27, 1995, and the memorandum from the waste cleanup section dated March 29, 1995.

    
    

13. By memorandum dated September 29, 1995, John M. Ruddell, Director of the Division of Waste Management, sent the District Directors and Waste Program Administrators a list of the soil cleanup goals for Florida. The residential health-based cleanup goal for residential sites for arsenic was 0.7 mg/kg (ppm).

    
    

14. In October, 1995, the Department took samples of the creek sediment. Based on the sampling by the City and by the Department, the average arsenic concentration was 1.8 ppm.

    
    

15. On January 19, 1996, Mr. Ruddell sent the District Directors and Waste Program Administrators a memorandum concerning the use of the soil cleanup goals set out in the September 29, 1995 memorandum. Mr. Ruddell stated:

    
    

    The Soil Cleanup Goals are intended to be used only as 'goals' for cleanup decisions in corrective actions and should not be used by the agency as rule, standards or to deny or approve permits. The FDEP has found that most business/site owners do not normally have the money or the expertise to establish

    Site-specific Rehabilitation Levels (SRLs) as allowed by our cleanup Consent Order condi- tions. The soil cleanup goals are intended to be used for site screening purposes, for source removal evaluations, and as guidance during evaluation of remediation alternatives and design considerations for development of Remedial Action Plan (RAP) for a site. The soil cleanup goals can and should be used for cleanup decisions if the default assumptions fit the site-specific situation.

    * * *

    The evaluation process should take into consideration the following criteria:

    1. the site-specific background levels,

    2. the Method Detection Limits (MDLs),

    3. the soil cleanup goals, and

    4. the site contaminate levels.

    The site contaminant levels (criterion 4) for each Chemical of Concern (COC) would be compared to the highest value of the first three criteria. If the site contaminant levels are below the highest value, then no remediation is required for that contaminant. If the site contaminant levels are higher than the highest value, then remediation alternatives should be evaluated taking into consideration the specific nature of the

    site and the responsible party's ability to effectively manage the risk of a particular site contaminant level. FDEP may consider site-specific risk management alternatives that may further modify the guidance levels for the contaminant. These health-based soil goals are evaluated based on the nature and intended use of the site (e.g., residential or industrial) and usually only apply to the upper two feet of soil. If the contaminated soil can be permanently covered with more than two feet of clean soil or otherwise have

    the exposure pathways restricted, the site may not need further remediation if the contaminated soil is not a source of ground- water contamination.

    * * *

    The soil values may be used for other purposes (other media) if indeed the particular application fits the situation (e.g., sediments that upon dredging will be used as soil). Again, an analysis of the specific situation must be performed (i.e., ascertain land use, exposure duration, leachability concerns, background consideration, etc.).

    
    

16. The January 29 memorandum also advised that the soil cleanup goal for arsenic on residential sites was changed to 0.8 mg/kg. This is not a significant change from the goal set out in Ms. Mora-Applegate's January 27, 1995 memorandum. The health-based soil cleanup goals for arsenic have not been adopted as rules, and the Department does not presently intend to adopt them by rule.

    
    

17. The health-based goals for arsenic are used to define appropriate concentrations for arsenic regarding protecting public health. The levels are default numbers which an applicant may chose to accept by default. Alternatively, the applicant may elect to provide additional information in the form of a site-specific evaluation or of management strategies that would satisfy the Department. A site specific evaluation could result in a change from the default number to a greater or lesser number. Unless the applicant provides site-specific information, the Department will apply the health-based goals for arsenic.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56(4), Florida Statutes.

    
    

19. Section 120.54(1), Florida Statutes (formerly Section 120.535(1)) provides:

    
    

    (a) Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.

    1. Rulemaking shall be presumed feasible unless the agency proves that:

       1. The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking;

       2. Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or

       3. The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement.

    2. Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that:

       1. Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or

       2. The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impracticable out- side of an adjudication to determine the substantial interests of a party based on individual circumstances.

    
    

20. Section 120.56(4)(a), Florida Statutes (formerly Section 120.535(2)(a)) provides:

    
    

    (4)(a) Any person substantially affected by an agency statement may seek an administrative determination that the state- ment violates subsection 120.54(1)(a). The petition shall include the text of the state- ment or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s. 120.52 and that

    the agency has not adopted the statement by the rulemaking procedure provided by

    s. 120.54.

    
    

21. As a threshold requirement, the City must establish that the health- based goals constitute a "rule" as defined in Section 120.52(15), Florida Statutes, (formerly Section 120.52(16)) which provides:

    
    

    'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure or practice require-

    ment of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. . . .

    
    

22. In Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984), the court held:

    
    

    Any agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.

    
    

23. Further, "whether an agency's statement is a rule which must be adopted in accordance with statutory procedures turns on the effect of the statement and not the Agency's characterization by some appellation other than 'rule'." Amos v. Department of Rehabilitative Services, 444 So.2d. 43, 46 (Fla. 1st DCA 1983).

    
    

24. In the instant case, the health-based goals for arsenic are used in the evaluation of the level of arsenic contamination of "sediments that upon dredging will be used as soil" to determine if the placing of the spoil materials as proposed by applicant will adversely affect the public health, safety, or welfare, or property of others. If the arsenic contamination levels are above the health-based goals, the Department determines that there may be the potential for the placement of the spoil to adversely the public health, safety or welfare. The applicant must provide additional site specific information to refute this presumption that an arsenic level in excess of the health based goal will cause human harm or propose management strategies that are acceptable to the Department. If the applicant chooses not to provide additional information or acceptable management strategies the Department will deny the permit on the basis that the applicant has not provided reasonable assurance that the project is not contrary to or clearly in the public interest.

    
    

25. The arsenic health based goal is a rule. It essentially creates a presumption that contamination levels in excess of those goals will potentially cause human harm and the applicant must then overcome the presumption by showing that the arsenic levels on the site are higher than the contamination levels in the spoil, by showing that the spoil will not be left at the site for an amount of time that would cause harm, or by providing management strategies that are acceptable to the department.

26. The arsenic health based goal should be promulgated as a rule and the Department has not done so.

    
    

27. The Department has not demonstrated that it is not feasible or practicable to promulgate the arsenic health based goal as a rule. The changes in the goal for arsenic levels have been insignificant from January, 1995 to January, 1996, when the last memorandum was issued by Ruddell. The Department based the goals on a study performed by a toxicologist at the University of Florida pursuant to a contract with the Department.

    
    

28. The arsenic level health based goal used by the Department in denying the City's permit application is in violation of Section 120.54(1)(a), Florida Statutes.

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the arsenic level health based goal used by the Department

violates Section 120.54(1)(a), Florida Statutes.

DONE AND ORDERED this 9th day of December, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1996.

COPIES FURNISHED:

John L. Chaves, Esquire Chris D. McGuire, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Carl V. M. Coffin, Esquire City of Stuart

121 Southwest Flagler Avenue Stuart, Florida 34994

Michael J. McCluskey, Esquire Wackeen, Cornett & Googe, P.A. Post Office Box 66

Stuart, Florida 34994

Virginia B. Wetherell, Secretary Department of Environmental Protection

3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 96-001112RU

Orders for Case No: 96-001112RU