STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK A. BRADY and JANET B. BRADY, )

)

Petitioners, )

)

v. ) CASE NO. 91-2608

)

KENNETH ACRE and DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

) DR. KENNETH ACRE d/b/a ACRE ANIMAL ) RESEARCH FACILITY, )

)

Petitioner, )

)

v. ) CASE NO. 92-0958

) DEPARTMENT OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

) FREDERICK A. BRADY, SR., and )

JANET B. BRADY, )

)

Petitioners, )

)

v. ) CASE NO. 92-0959

)

KENNETH ACRE and DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 10, 1992, in Orlando, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioners, Martha Hunter Formella Bradys: Attorney at Law

FOLEY & LARDNER

Post Office Box 2193 Orlando, Florida 32802-2193

For Respondent,

DER: Douglas H. MacLaughlin Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent,

Acre: Carlyn Harper Kowalsky Attorney at Law BOGIN, MUNNS & MUNNS

Post Office Box 2807 Orlando, Florida 32802

STATEMENT OF ISSUES

The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.

PRELIMINARY STATEMENT

On September 28, 1990, DER issued a Warning Notice to Acre notifying him of alleged violations of DER rules for failing to obtain an industrial waste permit for the waste disposal system serving his animal research facility. On December 6, 1990, Acre submitted an application for industrial waste permit number IC35- 190005. Acre entered into a Consent Order with DER on April 12, 1991, resolving the items described in the Warning Notice. Bradys filed a petition for administrative hearing on the Consent Order on April 22, 1991.

After numerous requests for additional information and responses concerning the permit application, DER issued a Notice of Permit Denial on January 15, 1992. Both the Bradys and Acre timely filed Petitions for Administrative Hearing concerning the Permit Denial. Both Petitions were consolidated with the initial petition concerning the Consent Order. The parties filed a Prehearing Stipulation on June 8, 1992. Sometime between June 8 and June 10, 1992, Acre provided additional information to DER and DER changed its position and issued a Notice of Intent to Issue the Permit. The Notice of Intent to Issue was formally issued and filed after the hearing had begun on June 10, 1992. Acre then filed a Notice of Voluntary Dismissal of his Case No. 92-0958.

Joint Exhibits 1-48 were admitted in evidence. Acre presented the testimony of two expert witnesses, Steve Miller, P.E., and Doug Yovaish, P.E. Acre's Exhibits 1-5 and 7 were admitted in evidence.

DER presented testimony of two witnesses, Larry Ponder, and Ali Kazi, P.E. DER's Exhibit 1 was admitted in evidence.

The Bradys presented the testimony of Janet Brady, Dr. Kenneth Acre and Maye Carter. They had no exhibits admitted in evidence.

Acre filed a post hearing Motion for Attorneys Fees and Costs which is disposed of in this Recommended Order.

FINDINGS OF FACT

Background

1. Acre owns and operates an animal research facility in Eustis, Florida.

   
   

2. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs.

   
   

   The Consent Order

   
   

3. To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system.

   
   

4. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project.

   
   

5. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained.

   
   

6. Acre complied with DER's instructions and plugged the septic tanks.

   
   

7. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite.

   
   

8. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER.

   
   

9. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein.

   
   

   The Disposal System

   
   

10. Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site.

    
    

11. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater.

    
    

12. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids.

    
    

13. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank.

14. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts.

    
    

15. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield.

    
    

16. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes.

    
    

    The Evapotranspiration Cells

    
    

17. The perforated pipes are situated in a gravel bed approximately 24 inches in depth.

    
    

18. On top of the gravel bed is a clay soil mix approximately 15 inches deep.

    
    

19. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated.

    
    

20. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves.

    
    

21. The clay soil mix in the top layer of the system is relatively impervious.

    
    

22. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system.

    
    

23. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system.

    
    

    System Capacity

    
    

24. It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system.

    
    

25. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system.

    
    

26. The drainfield is composed of two independent cells so that loading of each cell will be rotated.

    
    

27. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank.

    Safety Features

    
    

28. Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur.

    
    

29. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system.

    
    

30. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading.

    
    

31. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater.

    
    

32. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources.

    
    

    Ivermectin

    
    

33. Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream.

    
    

34. Ivermectin binds tightly to soil and does not dissolve in water.

    
    

35. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists.

    
    

36. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt).

    
    

37. The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that:

    
    

    1. Ivermectin is relatively immobile in soil and will not readily translocate into groundwater.

       
       

    2. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock.

       
       

    3. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.)

    4. Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb).

       
       

    5. Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters.

    
    

38. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species.

    
    

39. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater.

    
    

    Bradys' case

    
    

40. Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein.

    
    

41. They submitted no evidence that the septic tanks were improperly plugged.

    
    

42. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality.

    
    

43. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding.

    
    

44. Their concern that the lining of the drainfield could leak is unsupported by competent evidence.

    
    

45. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.

    
    

    CONCLUSIONS OF LAW

    
    

46. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

47. While Bradys have not alleged or proved a basis for standing, either under Section 120.57 or Section 403.412(5), no party has challenged or questioned their standing to challenge the proposed permit and consent order. Their petitions challenging the permit and Consent Order were timely filed.

48. DOAH Case Number 92-0958 concerning Acre's petition challenging DER's previous position denying the permit is dismissed based on Acre's voluntary withdrawal of the petition.

    
    

49. The standard of review for a challenge to a consent order of this nature is whether DER reasonably exercised its enforcement discretion. Factors to be considered regarding the reasonableness of an enforcement action include the extent to which the project would be permittable, the nature of the violation, DER's enforcement priorities, and the harm that might result from attempts at restoration. The consent order must stand unless Bradys can show that DER has abused its enforcement discretion. See Sarasota County v. Falconer and DER, 9 FALR 1822 (1987). See also West Coast Regional Water Supply Authority

    v. Central Florida Phosphates, Inc. and DER, 11 FALR 1917, 1933 (1988); Abbanat

    v. Reynolds and DER, 9 FALR 1898 (1987); Williams v. Moeller and DER, 8 FALR 5537 (1981).

    
    

50. The evidence in this case indicates DER has not abused its enforcement discretion by requiring immediate cessation of the old septic tank discharge, imposing a $600 penalty, and requiring a permittable disposal system. Bradys presented no evidence that the Consent Order is an improper settlement of the violations alleged therein. Therefore the Consent Order issued in this case should not be disturbed and should become final agency action.

    
    

51. Acre's treatment and disposal system for the wastes from his animal research facility may reasonably be expected to be a source of water pollution to either groundwaters or surface waters, and therefore requires a permit from DER. Section 403.087(1), Florida Statutes.

    
    

52. Acre, as the permit applicant, has the burden of providing reasonable assurance that the proposed industrial waste facility will not violate any applicable DER rules or standards. Florida Department of Transportation v.

    J.W.C. Company, Inc., and DER, 396 So.2d 778 (Fla. 1st DCA 1981); Rule 17- 4.070(1), Florida Administrative Code.

    
    

53. Because Acre has provided reasonable assurance that the treatment and disposal system will not discharge to surface or groundwaters, the minimum treatment requirements for industrial waste in Rule 17-660.400(1)(n) are met and the requirement in Rule 17-660.400(2)(c) prohibiting industrial waste discharge into waters of the state which would violate state water quality standards (standards contained in Chapters 17-302 and 17-3) is met. The specific permit conditions as proposed in DER's draft permit (DER Exhibit 1) for this facility provide additional reasonable assurances that this facility will not cause violations of DER rules and standards. The permit should be issued subject to these specific conditions.

    
    

54. Petitioners have not presented any information that demonstrates that the Acre facility fails to comply with the applicable criteria for issuance of a Department permit. In fact, their concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding and their concern that the lining of the drainfield could leak is totally unsupported by competent evidence. DER has obtained adequate information and has proposed adequate conditions in the permit to address any potential impacts associated with the proposed facility.

    
    

55. Despite Petitioner's multiple failures of proof, Acre's Motion for Attorneys' Fees should be denied. Section 120.59(6), Florida Statutes, provides that a prevailing party may recover reasonable attorneys fees from a

    nonprevailing adverse party who has participated in any proceeding pursuant to Section 120.57(1) for an improper purpose. Specifically that section provides:

    
    

    (6)(a) In any proceeding pursuant to s. 120.57(1), a prevailing party shall be enti- tled to recover costs from the nonprevailing adverse party, and shall also be entitled to recover a reasonable attorney fee, as provided herein. The provisions of this subsection shall not apply to a prevailing or nonprevail- ing party that is an agency.

    * * * (e)3. "Nonprevailing adverse party" shall

    mean a party that has failed to have substan- tially changed the outcome of the proposed or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial modification or condition intended to resolve the matters raised in a party's petition, it shall be determined that the party having raised the issue addressed is not a "nonprevailing adverse party." The recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term "nonprevailing party" or "prevailing party" be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.

    
    

56. Bradys are not "nonprevailing adverse parties" because there was a substantial change in the outcome of the agency action which is the subject of this proceeding. The DER position on the permit application was for denial and that position did not formally change until the hearing had begun, at which time DER filed its Motion of Intent to Issue. Until DER formally withdrew its Intent to Deny, Petitioners were involved this case in support of the agency action. Because the proceeding on the Consent Order and the proceedings on the permit application are inextricably bound and because the permit action was the main focus of these proceedings, Acre was not a prevailing party until DER formally changed its position. Since the hearing had already begun, the intent of Section 120.59(6) would be perverted if a party aligned with the agency could suddenly become liable for the applicant's fees and costs based on the agency's change of position during the hearing. Additionally, DER and Acre substantially modified their positions regarding the permit based on modifications made by Acre and conditions added by DER. Accordingly, it must be concluded that Bradys are not a "nonprevailing adverse party" as that term is defined in Section 120.59(6)(e)3. The evidence does not establish that the Bradys participated in these proceedings for any improper purpose even though they failed to establish the factual or legal merits of their position once DER abruptly changed its position.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein:

1. Ratify the terms of the Consent Order as reasonable.

   
   

2. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1.

RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

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 22nd day of July, 1992.

APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Bradys

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6 & 7(8) and 15(10).

2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order.

3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43,

53, 55, and 56 are irrelevant.

1. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary.

   
   

2. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-44(1-44).

   
   

2. Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence.

COPIES FURNISHED:

Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns

250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802

Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Martha Hunter Formella Attorney at Law

FOLEY & LARDNER

Post Office Box 2193 Orlando, FL 32802-2193

Carol Browner, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002608

Orders for Case No: 91-002608