93-006828RP Gbs Groves, Inc., And Citrus Growers Associates, Inc. vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Monday, January 10, 1994.

Summary: Proposed rule prohibiting use of herbicide bromacil, not arbitrary or capricious due to extent of bromacil in groundwater.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GBS GROVES, INC. and CITRUS )

GROWER ASSOCIATES, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 93-6828RP

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

______________________________)

FINAL ORDER

Pursuant to notice, final hearing in the above-styled case was held in

Tallahassee, Florida, on December 21, 1993, before Robert E. Meale, Hearing

Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioners: J. T. Griffiths

2930 Winter Lake Road

Lakeland, Florida 33803

For Respondent: Attorney Robert G. Worley

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue in this case is whether proposed Rule 5E-2.038 is an invalid

exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition filed November 24, 1993, Petitioners challenged as an invalid

exercise of delegated legislative authority proposed Rule 5E-2.038, as published

in the Florida Administrative Law Weekly on November 5, 1993.

At the hearing, Petitioners called five witnesses and offered into evidence

10 exhibits. Respondent called three witnesses and offered into evidence nine

exhibits. All exhibits were admitted.

Dr. Griffiths was determined to be a qualified representative. Respondent

stated at the hearing that the standing of Petitioners was not an issue.

Neither party ordered a transcript. Each party filed a proposed final

order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. On November 5, 1993, Respondent published in the Florida Administrative

Weekly the text of a proposed rule to be known as Rule 5E-2.038, which

Respondent indicated that it intended to adopt. The proposed rule reads:

5E-2.038 Restrictions on Use of Bromacil in

Citrus: Penalties.

(1) Definition. For the purpose of this rule

"permeable, better drained soils" means those

soils defined as such in the U.S.D.A.

Agricultural Handbook No. 436 (1975), a copy

of which may be obtained from the U.S.

Government Printing Office, Washington, D.C.

20402-9328.

(2) Use Restriction. The use of Bromacil is

prohibited for weed control in areas

producing citrus fruit on any permeable,

better drained soil identified in the

intended site of application. Permeable,

better drained soils which occur in citrus

producing areas of the state include, but are

not limited to, soils unnamed and

characteristic of Quartzipsamments, and the

following soil series classifications:

Adamsville Archbold Astatula

Bahiahonda Broward Canaveral

Candler Cocoa Dade

Florahome Fort Meade Gainesville

Lake Lakewood Neilhurst

Orlando Palm Beach Paola

Satellite St.Augustine St. Lucie

Tavares Orsino

(3) Penalties. The use or application of

bromacil by any person in a manner

inconsistent with the provisions of this rule

is a violation of Chapter 487, Florida

Statutes.

Specific Authority 570.07(23) FS. Law implemented 487.031(10), 487.031(13)(g),

487.051(1) FS. History--New. 1/

2. Bromacil, which is manufactured by Dupont, is a broad- spectrum

residual herbicide. It has been used extensively in citrus groves since its

introduction about 25 years ago.

3. The application rate of bromacil has generally increased since its

introduction in the late 1960s. At first, growers applied bromacil in narrow

strips down the rows of trees. In the 1970s, growers applied bromacil in bands

out to the drip lines of the trees. By the late 1970s, growers applied bromacil

twice annually, rather than once annually, as had been more typical at first.

From the 1980s through present, growers began applying bromacil trunk to trunk,

row to row.

4. Growers control weeds to reduce competition, especially around young

trees. Also, when growers began changing from overhead to microjet irrigation

10-15 years ago, it became more important to clear undergrowth from the area

around the microjet, which is only 6-12 inches above the ground. Historically,

weed- clearing was done manually and later by mechanically hoeing, but these

activities disturb the sandy soil and contribute to rutting when trucks enter

the groves during harvesting.

5. There are other herbicides available, although they are less favored

among growers due to considerations of cost and efficacy. Some are contact

herbicides, rather than the longer- lasting residual herbicides. Bromacil is a

pre-emergent herbicide, but other such herbicides are available.

6. Bromacil is a Group C carcinogen, which means that it is a possible

human carcinogen. Bromacil has caused tumors in male mice, but not male rats.

7. Sometime in 1988 or later, the U.S. Environmental Protection Agency

published a health advisory concerning bromacil. Health Advisories describe

nonregulatory concentrations of drinking water contaminants at which adverse

health effects would not be anticipated to occur over specific exposure

durations. Health Advisories contain a margin of safety to protect sensitive

members of the population.

8. Health Advisory Levels (HALs) are typically set for one- day, ten-day,

seven-year, and lifetime (70-year) exposures. Group A and B carcinogens, which

are known or probable human carcinogens, do not carry recommended HALs for

lifetime exposures.

9. The bromacil ten-day HAL for a child is 5000 parts per billion (PPB).

The bromacil seven-year HAL for an adult is 9000 PPB. The bromacil lifetime HAL

is 90 PPB.

10. In 1986, bromacil had become due for reregistration by the U.S.

Environmental Protection Agency. In need of data to support reregistration,

Dupont, Respondent, and the then- Department of Environmental Regulation (DER)

embarked on a data- collection project to assess the presence of bromacil in the

groundwater.

11. By 1987, growers, Dupont, and Florida state agencies were aware that

bromacil was entering the groundwater. By this time, the Department of Health

and Rehabilitative Services had received reports of bromacil killing oak trees

adjacent to citrus groves, although the record is unclear as to the means of

exposure. By the end of 1987, Respondent had detected bromacil in a drinking-

water well.

12. Bromacil has a typical soil half-life of 120 days. But it degrades

more slowly in groundwater, so its primary means of dissipation in groundwater

is through dispersal. Little if anything is known of the duration of bromacil

in surface water, such as lakes and rivers.

13. To initiate the groundwater monitoring study, DER, Respondent, and

Dupont identified the three major types of citrus-growing areas: the flatwoods

typical of south-central and southwest Florida citrus land; the coastal region

of Indian River; and the central ridge running down the central portion of the

state. Due to its predominant well-drained soils, the central ridge is the area

that is effectively subject to the prohibition contained in proposed Rule 5E-

2.038.

14. The study site eventually selected in the central ridge site is in the

Waverly grove east of Waverly in Polk County. The soil on the 5.7-acre site,

which is in the Candler soil series, is typically sandy to a depth of 12.5 feet

with low organic matter.

15. The state agencies and Dupont determined that the application history

of bromacil was not uncharacteristic for the area. 2/ However, the manner of

application was different from prevailing practices to the extent that it was in

a banded treatment, which covers only about 60 percent of the grove acre, rather

than the trunk-to-trunk treatment, which covers nearly the entire grove acre.

The Waverly grove owner decreased treatment rates by 33 percent between 1987 and

1988, and by another 33 percent between 1989 and 1990. Between 1990 and 1991,

the grove owner decreased the treatment rate by 20 percent, and by another 33

percent between 1992 and 1993. Between 1987 and 1993, the total decrease in

application rate was 77 percent.

16. Ten monitoring wells (MW-__) were installed on the Waverly site during

the fall of 1986. 3/ Readings were generally taken on a quarterly basis. As

was the case with the sites selected in the flatwoods and coastal region, the

state agencies and Dupont chose the Waverly site as a "reasonable 'worst-case'"

scenario based on soil, climate, and agronomic conditions.

17. Sampling of the well water at all three sites began in September 1987.

Due to the infrequency of detections in the coastal region and flatwoods,

sampling of these sites was discontinued in December 1989, and the soils

described by the rule are not those typically found in these areas.

18. At about the time that the study was terminated at the flatwoods and

coastal region sites, Dupont relabelled its products containing bromacil to

reduce the rate of application in the central ridge. 4/ The relabelling was

Dupont's response to early indications of the extent to which bromacil was

entering the groundwater in the central ridge.

19. At the Waverly site, Dupont and the state agencies determined the

direction of groundwater flow, the time required for bromacil to travel through

the unsaturated zones to the water table, and the linear velocity of the

groundwater. 5/

20. For MW-1 through MW-10, levels of bromacil over 90 PPB were detected

in 14 of 204 samples taken, for a rate of 7 percent. 6/ No readings over 90 PPB

were found in MW-1, MW-2, MW-5, MW-6, or MW- 10.

21. However, each shallow well on the Waverly site suffered bromacil

contamination in excess of 90 PPB. The northernmost well, which is at the

highest elevation (MW-3), four times had readings over 90 PPB, with the highest

of 119 PPB. The central well, which is at a mid-elevation (MW-4), eight times

had readings over 90 PPB, with the highest of 156 PPB. The southernmost well,

which is at the lowest elevation (MW-7), six times had readings over 90 PPB,

with the highest of 149 PPB.

22. MW-7, as well as MW-8 and MW-9, are the only wells outside the treated

grove area. They are about 90 feet from the grove edge. MW-8 and MW-9 are the

only other wells whose readings exceeded 90 PPB. The intermediate well, MW-8,

had four readings over 90 PPB with the highest of 103 PPB. The deep well, MW-9,

had one reading of 150 PPB, which was the only reading over 90 PPB for this

well.

23. Analysis of these data must consider numerous factors, including the

timing and amount of bromacil applied in the Waverly grove, the time it takes

for peak concentrations of bromacil to reach the water table, and the time it

takes for bromacil to be carried with the groundwater to sites outside the

treated grove.

24. As noted in footnote 5, peak concentrations of bromacil pass through

the unsaturated zone at a rate of 8-9 feet per year. Given the varying

thicknesses of the unsaturated zones around MW- 10, MW-1 through MW-3, MW-4

through MW-6, and MW-7 through MW-9, as noted in footnote 3, peak concentrations

of bromacil would reach the water table for each of these wells or well

clusters, following application, at about 4 years for MW-10, 3 years for MW-1

through MW-3, 2 years for MW-4 through MW-6, and 1 1/2 years for MW-7 through

MW-9. Once in the surficial aquifer, bromacil evidently travels at the rate of

the groundwater itself, whose linear velocity in the area is 1-2 feet per day.

7/

25. Based on the factors set forth in the preceding paragraph, Dupont

concluded in its analysis that the 1992 readings of bromacil in the groundwater

at MW-10 and MW-1 through MW-6 were due to applications made between 1988-1990

and the 1992 readings of bromacil in the groundwater at MW-7 through MW-9 were

due to applications made between 1987-1990.

26. The Dupont analysis of MW-10 and MW-1 through MW-6 fails to explain

all of the variability of the readings during 1992. Although MW-1 and MW-3

remained constant during 1992, MW- 2, which is the intermediate well in this

cluster, experienced its highest reading in September 1992--exceeding its next

highest reading by almost 15 PPB. However, the application rate of bromacil

decreased by 33 percent during the three years in question and the season of the

application remained constant for the first two years. In 1990, the rainy-

season applications were discontinued, 8/ so the abnormally high reading was

presumably not due to the accelerated transport of bromacil, with excessive

rainwater, through the unsaturated zone.

27. The discrepancies persist even if one assumes that the peak levels of

bromacil penetrated the unsaturated zone about three years following their

application on the surface. About three years earlier, as noted in footnote 2

concerning rates of bromacil application in the Waverly grove, about 1.6 pounds

of active ingredient per acre was applied during the rainy season. However, one

year earlier the same amount was applied, and two years earlier 2.4 pounds of

active ingredient per acre was applied; and the September 1991 and 1990

readings were a relatively modest 21.8 PPB and 33.1 PPB, respectively. 9/

28. Dupont concluded in its analysis that the 1992 readings of bromacil in

the groundwater at MW-7 through MW-9 were due to applications made between 1987

and 1990. Therefore, these three wells, which are downgradient from the grove

area and the rest of the monitoring wells, span four years of bromacil

applications. During this time, the amount of bromacil applied decreased by 58

percent.

29. Meaningful analysis of the extent of variability between 1992 bromacil

levels in MW-7 through MW-9 is impaired by the absence of data regarding pre-

1987 bromacil application amounts.

30. In any event, the Waverly data clearly demonstrate that bromacil

persists a long time in groundwater, especially when compared to the relatively

short period required for degradation in soil. The Waverly data also shows that

bromacil travels in groundwater beyond the area in which bromacil was applied.

The Waverly data suggest that the bromacil accumulates at relatively shallow

depths in the surficial aquifer, although the relatively higher readings for the

down-gradient, deep monitoring wells suggest that, over time, bromacil may

penetrate deeper, as well as travel laterally.

31. The Waverly data are also significant for their omissions. The rate

of degradation of bromacil in water obviously is quite slow. But the data offer

little insight into the two most likely means by which bromacil concentrations

are reduced over time--i.e., discharge into surface waters and dissipation of

these relatively minuscule amounts of herbicide through dispersal in large

volumes of groundwater.

32. There are no data from the intermediate or Floridan aquifers in the

vicinity of the Waverly site. There are no data tracking the bromacil in the

groundwater once it leaves the Waverly site or after it is discharged from the

groundwater into surface water, such as the lake that is located a short

distance and downgradient from the Waverly study site. The data offer no basis

for determining when and how bromacil is eliminated from the groundwater.

33. In 1987, Respondent found bromacil in existing wells in the Kahn grove

two miles southeast of Sebring in Highlands County. Evidently for this reason,

the Kahn groves formed part of another groundwater monitoring site involving

bromacil. Like the Waverly site study, the study of the Kahn grove, which

became known as the DeSoto City site, also began in 1987.

34. Dupont participated in the data collection from this 90-acre test

site, which is in the "highly vulnerable" southern end of the central ridge. 10/

The DeSoto City site, whose predominant soils are yellow fine sand, initially

involved four installed sand point wells (SP-__) and four existing drinking

and/or water supply wells. Readings were generally done on a quarterly basis.

35. After several months, seven more monitoring sand point wells were

installed for a total of 11 sand point wells. 11/ Four of the new sand point

wells were in the grove in which the four original sand point wells were

installed. The other three new sand point wells were placed in the grove

immediately east of the location of the other eight sand point wells and

immediately north of an existing residential area.

36. Eventually, 89 individual drinking water wells in the residential area

were added to the DeSoto City study. The individual drinking water wells, which

are typically sunk in the surficial aquifer, are downgradient from a portion of

the Kahn groves immediately to the north.

37. As was done in the Waverly grove study, Respondent or Dupont

determined the application history of bromacil in terms of amount and timing of

applications. 12/ As is the case at the Waverly grove site, all applications

were banded rather than trunk to trunk. The DeSoto City grove owner increased

treatment rates for the western portion of the grove between 1986 and 1987 by

over threefold, then decreased the rate by over 80 percent between 1987 and

1988. Skipping any application in 1989, the grove owner increased the rate by

2.5 times between 1988 and 1990. The only difference in the application on the

eastern portion of the grove is that the fairly light application of 1988 was

omitted. All applications were during the dry season except for the heaviest

single application of 3.18 pounds of active ingredient per acre applied in July

1987.

38. The DeSoto City site has comparable soils to the predominant soils of

the Waverly site. With a slope of only about 17 feet over 2400 linear feet, the

DeSoto City site is more level than the Waverly site.

39. The water table is considerably higher at the DeSoto City site than at

the Waverly site. With an average of 9-10 feet of unsaturated zone beneath the

western portion of the groves, this area of the DeSoto City site has a thinner

unsaturated zone than any location tested at the Waverly site, where the

thinnest unsaturated zone was about 12 1/2 feet at MW-7 through MW-9. Peak

concentrations of bromacil penetrate eight feet of unsaturated zone in 9-10

months.

40. The eastern portion of the groves, where SP-8 through SP-10 are

located, sit over thicker unsaturated zones--22-24 feet for SP-8 and SP-9 and 14

feet for SP-10. Peak concentrations of bromacil would take two to three years

to reach the surficial aquifer in the areas of SP-8 and SP-9. Typical depths to

groundwater estimated for the residential area, for which well- drilling data

are unavailable, range from 9 to 11 feet.

41. The direction of the groundwater flow in the DeSoto City grove areas

is generally to the south-southwest, although groundwater flows in a more

southerly direction in the residential area. The average linear velocity of

groundwater in the surficial aquifer in the area is estimated to be 1-2 feet per

day.

42. The northernmost wells in the western portion of the grove, as well as

two wells north of the grove, disclose that the shallow surficial aquifer has

generally eliminated most of the bromacil, but the intermediate surficial

aquifer remains heavily contaminated. 13/

43. Some of the data for the northernmost wells do not correlate with

bromacil applications in the grove immediately above the well. For instance,

SP-3 reached 180 PPB in September 1989, dropped dramatically for 6-9 months, and

then remained over 100 PPB from September 1990 through February 1991. However,

the most recent bromacil application before September 1989 was March 1988--about

double the estimated time that it takes peak bromacil concentrations to

penetrate the unsaturated zone in the area. SP-4, which is about 600 feet east

of SP-3, behaved more predictably in response to surface applications of

bromacil. The same is true of SP-7, which is about 500 feet southwest of SP-3.

44. SP-6I and SP-6II, which are the only clustered wells on the DeSoto

City site, are equidistant between SP-3 and SP-4, about 300 feet to the south.

SP-6I never had a reading over 90 PPB. However, SP-6I was installed at the very

top of the surficial aquifer. SP-6II, which was installed roughly 13-14 feet

deeper in the surficial aquifer, never had any readings less than 90 PPB and had

11 readings over 200 PPB. SP-6II was the only well drawing water from

intermediate depths of the surficial aquifer.

45. Even after the use of bromacil was discontinued in the Kahn grove

after the October 1990 application, readings at SP- 6II remained quite high. A

year after the final application, by which time peak concentrations should have

reached at least the top of the surficial aquifer, SP-6II had bromacil levels of

467 PPB. Consistent with vertical travel time estimates, the readings went down

after that, but, despite the absence of additional applications, bromacil levels

were 188, 237, 179 and 164 PPB for the next four quarters.

46. The Dupont study notes that SP-6II is about 1700 downgradient from a

residential well at 5107 DeSoto Road. It is impossible to verify this assertion

from the groundwater data presented in the report. Very high bromacil

concentrations in this residential well, which was the site of a parked spray

rig that likely discharged bromacil spray, were detected in July 1988. Peak

concentrations at SP-6II of 1221 to 1463 PPB were detected between December 1990

and February 1991, which would translate to a travel rate of two feet per day.

If SP-6II is in fact downgradient from the well at 5107 DeSoto Road, the Dupont

study has accounted for the two extremely high bromacil readings at SP-6II,

although not the remaining high readings unless one assumes that the well at

5107 DeSoto Road is an ongoing point source of bromacil contamination. The

Dupont study observes ominously that the sand point wells lacked locks, so the

possibility of sabotage cannot be discounted. 14/

47. The data from the two wells in the central part of the western portion

of the grove reveal little more. The well at the barn had substantial readings,

but these may have involved point source pollution from the barn. The other

well, SP-2, approached 90 PPB one time, but has been below 2.0 PPB since

December 1989. 15/

48. One sand point and one existing well are at the southern end of the

grove west of the residential area. An additional existing well is just across

a road from the southern end of this area of the grove. 16/ The readings at SP-

1, whose most recent reading is 8 PPB, correlates with at least the last

bromacil applications; four readings over 90 PPB took place five, eight, four,

and eight months after the relevant applications. However, the only 90 PPB

readings after the highest application of bromacil in July 1987 were 3 and 15

months following the date of application.

49. The only 90 PPB readings of the existing well north of the road are

December 1991, March 1992, June 1992, and September 1992. This well is

identified as the "shop" or "mixing/loading" area. Again, the possibility of

point source contamination exists at this site.

50. However, the pattern of higher recent readings is repeated at a site

perhaps less likely to be an isolated source of pollution. The existing well

across the street from the grove, which is known as the "office" well, has had

its three highest readings in March, June, and September 1992, although none of

these readings was over 68.17 PPB. The Dupont study concludes that bromacil

would require 3.3-6.6 years to travel in the groundwater from SP-3 at the north

end of the western portion of the grove to the road. There thus are

insufficient data to determine if any correlation exists between readings at SP-

3 and the office well.

51. There are three sand point wells in the eastern portion of the grove.

17/ The highest readings in the northernmost well, which may be just north of

the grove, have been made in the four most recent months prior to the last

reported reading in September 1992. The last reading was 96.3 PPB, which was

the only time that SP-9 exceeded 90 PPB. SP-8 and SP-10 have not shown very

high levels of bromacil in recent readings.

52. Summarizing the DeSoto City site, except for the residential area, 60

of the 219 samples, or 27 percent, tested over 90 PPB for bromacil. SP-2, SP-5.

SP-6I, SP-10, the office well, and the trailer well never had a sample over 90

PPB. SP-9 had one such sample, SP-4 had three such samples, the shop well and

SP-7 each had four such samples, SP-3 had six such samples, SP-1 and SP-8 each

had seven such samples, and SP-6II had 19 such samples.

53. The sampling of the residential area added to the DeSoto City groves

study area began as early as October 1987 and extended generally to September

1992. Out of 646 total samples, bromacil was detected 575 times, or in 89

percent of the samples. Sixteen percent of these detections, or 104, were over

90 PPB. The highest levels of bromacil so detected ran into the mid-100s PPB.

54. No levels over 90 PPB were detected in 1987. Four such detections

were made in 1988. Eighteen were detected in 1989, 20 in 1990, 31 in 1991, and

19 in the part of 1992 covered by the data.

55. It is apparent from readings of residential wells that a plume of

bromacil is moving through the surficial aquifer under the residential area.

The plume is traveling at the estimated speed of the groundwater.

56. The data from the DeSoto City study do not indicate that any

substantial degradation of the bromacil in the groundwater has taken place

during the time involved in the study. It is unclear whether the plume of

bromacil will be tracked if and when it leaves the surficial aquifer under the

residential area. Again, there are no data suggesting the manner or rate at

which bromacil is eliminated from the groundwater or its fate in surface waters.

57. But the DeSoto City study provides one piece of new information. In

the Waverly study, the shallower wells were the most impacted; in the DeSoto

City study, the most impacted well was the deepest well.

58. The DeSoto City study also provides some data concerning the efficacy

of bromacil-removal processes. A carbon filter practically eliminates all

bromacil from drinking water. However, in one case, the carbon filter failed

after nine months at one residence. 18/ With the assistance of DER, the

residential area is in the process of obtaining service with municipal water as

the private water source is contaminated not only with bromacil, but nitrate.

59. A third major study is the Polk County Very Intensively Studied Area

(VISA). The Polk VISA is one of a number of VISAs created by DER throughout the

state to obtain data on groundwater.

60. Unlike the Waverly and DeSoto City studies, the Polk VISA covers the

surficial aquifer and the Floridan aquifer. The seven wells penetrating the

Floridan aquifer have cased depths ranging from 137 to 412 feet. Seventeen

wells tap the surficial aquifer.

61. The Southwest Florida Water Management District sampled 23 of the Polk

VISA wells in July 1990 and all 24 of the Polk in April 1993. All of the

bromacil detections were in 1993. Readings of over 90 PPB of bromacil were

detected in three of the surficial wells. Lesser amounts of bromacil were

detected in 13 of the remaining 14 surficial wells. In the Floridan aquifer,

bromacil was detected in four of seven wells, in amounts of 0.97 PPB, 2.8 PPB,

0.72 PPB, and 1.4 PPB.

62. In subsequent discussions with state agencies, Dupont argued that a

reduced rate of application of bromacil in the central ridge would sufficiently

address the groundwater- contamination problem, largely because recent high

readings were obviously from off-site sources. Concerned in part about the lack

of data concerning the persistence of bromacil in the groundwater, state agency

representatives sensibly rejected these arguments. Instead, Respondent proposes

to adopt Rule 5E-2.038.

63. The state agencies and Dupont are in the process of preparing a study

protocol that would permit more accurate conclusions concerning the means by

which bromacil enters the groundwater. It is unclear if subsequent studies will

address other important issues, such as how far and in what concentrations can

bromacil be transported by groundwater, how and at what rate is bromacil

eliminated from groundwater, to what extent is bromacil in surface water, and

how and at what rate is bromacil eliminated from various types of surface water.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties. Sections 120.54(4) and 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.)

65. The issue in this case is whether proposed Rule 5E- 2.038 is an

invalid exercise of delegated legislative authority, within the meaning of

Section 120.54(4)(a).

66. Pursuant to Section 120.52(8), a proposed rule is an invalid exercise

of delegated legislative authority if, in relevant part:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

or

(e) The rule is arbitrary or capricious.

67. The proposed rule does not violate subsections (b), (c), or (d).

Section 570.02(23) authorizes Respondent to promulgate rules. Section

487.051(1)(b) authorizes Respondent to promulgate rules to ". . . prohibit the

sale or use of pesticides or devices shown to be detrimental to human beings,

the environment, or agriculture or to be otherwise of questionable value."

Bromacil is a possible human carcinogen, as well as a broad-spectrum, residual

herbicide, whose agricultural use has clearly resulted in the contamination of

the surficial and Floridan aquifers.

68. A rule or proposed rule is arbitrary or capricious under Section

120.52(8)(e) if it is illogical or unsupported by the facts or logic or is

without thought or reason. See, e.g., Agrico Chemical Co. v. Department of

Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1978), cert. denied, 376

So. 2d 74 (Fla. 1979). Based upon what is known and unknown about bromacil in

the groundwater, as well as what is known about the agricultural practices by

which bromacil has been introduced into the groundwater, there is nothing

illogical, irrational, or unreasonable about prohibiting the use of bromacil on

the central ridge, whose well-drained, sandy soils have been demonstrated to

transport significant amounts of the herbicide into the groundwater. The

prohibition is appropriate given the extent of groundwater penetration that has

taken place already and the lack of knowledge as to how bromacil enters the

groundwater below the application site, passes still deeper into the Floridan

aquifer, travels laterally with the groundwater, and eventually is eliminated

from the groundwater either through slow degradation, dispersal, or discharge

into surface water.

ORDER

Based on the foregoing, it is hereby

ORDERED that the challenge to proposed Rule 5E-2.038 is dismissed.

ENTERED on January 10, 1994, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

on January 10, 1994.

ENDNOTES

1/ Respondent has proposed amendments to the proposed rule, but the amendments

have not been reviewed by the Joint Administrative Procedures Committee or

published in the Florida Administrative Weekly. Thus, the final order does not

address the proposed rule as amended.

The amendments define more precisely the phrase, "permeable, better drained

soils" and exclude bedded citrus groves from the Bromacil prohibition. These

amendments have no bearing on the present issues.

2/ The Waverly grove owner applied 4.8 pounds active ingredient per acre per

year in 1987, 3.2 pounds in 1988, 3.2 pounds in 1989, 2.0 pounds in 1990, 1.6

pounds in 1991, 1.6 pounds in 1992, and 1.1 pounds in 1993. All of the

applications were during the dry season except for the July 1987 application of

2.4 pounds, June 1988 application of 1.6 pounds, and June 1989 application of

1.6 pounds. As noted in the text, the grove owner applied the herbicide in a

band, rather than trunk to trunk. Thus, the effective rate of coverage set

forth in this paragraph must be reduced by 40 percent because only 60 percent of

the acreage was covered by the application.

Respectively, and respectively draw water from deep, intermediate, and

shallow depths of the surficial aquifer. The water table at this point is about

27 feet beneath the surface. Each of these monitoring wells had additional

screened intervals at a shallow depth in the surficial aquifer at about 11 feet

beneath the surface.

MW-4, MW-5, and MW-6 are clustered at the southwest corner of the grove at

an elevation of about 83 feet above mean sea level. MW-4, MW-5, and MW-6 are at

22 feet, 32 feet, and 42 feet, respectively, and respectively draw water from

shallow, intermediate, and deep depths of the surficial aquifer. The water

table at this point is about 16 feet beneath the surface.

MW-7, MW-8, and MW-9 are clustered just south of the grove at an elevation

of about 80 feet above mean sea level. MW-7, MW-8, and MW-9 are at 19 feet, 29

feet, and 39 feet, respectively, and respectively draw water from shallow,

intermediate, and deep depths of the surficial aquifer. The water table at this

point is about 12 1/2 feet beneath the surface.

* NOTE: Endnote 3 not noted on the original document.

4/ The maximum use rate in the coastal and flatwood areas was set at 6.4 pounds

of active ingredient per acre per year, but for the citrus ridge the maximum use

rate was reduced to 4.2 pounds of active ingredient per acre per year.

5/ The groundwater flows generally to the southeast, toward a nearby lake known

as Lake Mabel. Detectable amounts of bromacil penetrate eight feet of the

unsaturated zone in 3-4 months after application. Peak concentrations permeate

eight feet in 9-10 months, 12 feet in 14-16 months, and 16 feet in 21-23 months.

In a year, therefore, peak concentrations of bromacil pass through about 8-9

feet of the unsaturated zone.

The thickness of the Waverly site's unsaturated zone, which is the distance

to the water table, ranges from 31 feet at the north and highest end of the site

to 10-12 feet within the central portion of the site.

6/ From September 1987 through September 1992, MW-1 yielded bromacil readings

of 16-62 PPB. The highest readings were for the first six months of the study.

The lowest were in March, June, and September 1990. After that, readings

increased to as much as 42.8 PPB in December 1991 before decreasing again to

29.2 in September 1992.

During the same five-year period, MW-2 yielded bromacil readings of 12.4-

51.5 PPB. The highest reading was the last in September 1992. The lowest was

in May 1989. Relatively low readings prevailed from January 1989 through mid-

1990, when they returned to the levels first tested. After another drop in mid-

1991, levels increased considerably.

During the same five-year period, MW-3 had bromacil readings Of 20.1-119

PPB. The lowest was the first. The second lowest was 28.7 PPB. In addition to

three readings at 33.3, 38.2, and 34.2 PPB during the first thirteen months of

readings, all other readings were over 40 PPB. In addition to the highest

reading in September 1991, readings of 110, 94.6, 91, and 90.6 PPB took place in

June 1990, December 1991, December 1990, and March 1990, respectively.

During the same five-year period, MW-4 had bromacil readings of 28.7-156

PPB. The lowest was the first. The next lowest were two readings in the 40s

PPB in 1992. The remainder of the readings were in the mid-60s PPB or higher.

After the 156 PPB reading in January 1989, the next highest were 125, 121, 115,

94.6, 93.8, 93.3, and 92 PPB in May 1989, November 1987, October 1988, March

1990, July 1988, June 1991, and January 1988. All four readings were missing

between March 1990 and June 1991, at each of which readings the level of

bromacil in this heavily involved well exceeded 90 PPB.

During the same five-year period, MW-5 had bromacil readings of 18.3-71.6

PPB. The lowest was in September 1992, and the highest was in March 1988. For

the year prior to the lowest reading, the readings were all in the range of 40-

55 PPB.

During the same five-year period, MW-6 had bromacil readings of 13.1-72.9.

The lowest was in December 1991, but it was followed by readings around 50 PPB

for the next nine months. The highest was in December 1989.

During the same five-year period, MW-7 had bromacil readings of 4.8-149.

The highest was in November 1987 and was preceded by a reading of 124 PPB in

September 1987. The lowest was in February 1991, but was followed by readings

of 99.9, 126, 90.5, 93.4, 49.7 and 89.3 PPB for June 1991, September 1991,

December 1991, March 1992, June 1992, and September 1992, respectively.

During the same five-year period, MW-8 had bromacil readings ranging from

21.8 in August 1989 to 103 in June 1991. Besides the lowest reading, MW-8 had

only four readings below 50 PPB. Besides the highest reading, three other

readings were over 90 PPB: 102 PPB in December 1989, 96.5 PPB in November 1987,

and 95.9 PPB in June 1992.

During the same five-year period, MW-9 had bromacil readings of 17.9-150

PPB. The lowest was in December 1990, and the highest was in March 1990. MW-9

had no other readings in excess of 80 PPB.

During the same five-year period, MW-10 had bromacil readings of 19.3-59.6.

The lowest was in July 1988, and the highest was in February 1991. Readings at

the end of the period were somewhat higher than those at the beginning of the

period.

7/ The Dupont report erroneously provides at one point a linear velocity of 1-2

feet per "year," rather than 1-2 feet per "day." Respondent Exhibit 3, p. 26.

As is clear from other references in the Dupont report, the cited rate of 1-2

feet per year obviously is a typographical error.

8/ When applied during the rainy months, the rate of penetration of bromacil

through the unsaturated zone may be accelerated by the passage of relatively

large amounts of rainwater permeating through the soil.

9/ Rainfall levels do not appear to explain the discrepancy. In July 1987,

9.24 inches fell at the site. In June 1988, 2.39 inches fell on the site. In

June 1989, 4.02 inches fell on the site. Irrigation records are either

unavailable or unreported.

10/ Respondent Exhibit 3, p. 4.

11/ The four existing wells are known as the barn well, office well, shop or

"mixing/loading" well, and trailer well.

The sand point wells are SP-1 through SP-10 with SP-6 split into SP-6I and

SP-6II. All of these wells are between 14 and 30 feet deep and extend into the

shallow depth of the surficial aquifer, except SP-6II, which extends into the

intermediate depth of the shallow aquifer. The water table in the area ranges

from 8 1/2 to 25 feet below the surface.

SP-1, SP-2, SP-3, SP-4, SP-6I, SP-6II, and SP-7 are located in the north

half of the western portion of the grove. In the southern half are the barn

well, which is less then 200 feet south of SP-2, the shop well, SP-1, and the

office well. SP-5, which is in a field, is about 600 feet north of the north

end of the grove. The trailer well is about 1/2 mile north of SP-5.

In the eastern portion of the grove, immediately east of the northern part

of the above-described area, are SP-8, SP-9, and SP-10. SP-8 and SP-10 are at

the southern end of the eastern portion of the grove, and SP-9 is just north of

the north boundary of the eastern portion of the grove.

12/ The application of bromacil in the western portion of the grove was 1.6

pounds of active ingredient per acre per year in 1986, 5.1 pounds in 1987, 1.0

pound in 1988, and 2.4 pounds in 1990. With the exception of 3.18 pounds

applied in July 1987, the applications were during the dry season. Because the

grower applied in a banded fashion, a 40 percent reduction in these rates

evidently is indicated. The application of bromacil in the eastern portion of

the grove was identical except that, as noted in the text, the 1988 application

was omitted.

13/ The readings at the trailer well, which is the northernmost well about 3/5

of a mile from the north end of the grove, ran from July 1987 through September

1992. The lowest reading was 7.5 PPB in January 1988, and the highest was 56.9

PPB in September 1992. The highest readings took place for a one year period

starting in February 1989 and a seven-month period from March through September

1992.

SP-5, which is about 400 feet north of the north end of the grove west of

the residential property, always read below detectable limits except for the

first reading in March 1988 when it read 2 PPB.

SP-3 and SP-4, which are at the northern end of the grove, show a clear

trend toward the elimination of bromacil. SP-3 started in July and October 1987

with readings of 147 and 108 PPB, after a period of lower readings increased

again to 180 PPB in September 1989, maintained over 100 PPB from September 1990

through February 1991, and dropped to below detectable amounts from June 1992

on. After an initial reading of 230 PPB in July 1987, SP-4 dropped immediately

to readings generally below 10 PPB until it increased again to 196 PPB in July

1988, after which it again returned to very low readings. It exceeded 20 PPB

only five more times, never exceeding 39 PPB except for September 1990 when it

reached 134 PPB. Every reading since September 1991 was below detectable

limits.

About 500 feet south of SP-3 and SP-4 are SP-7, SP-6I, and SP-6II.

Readings of these three wells took place from March 1988 through September 1992.

In March and April, 1988, SP-7 had bromacil levels of 428 and 410 PPB,

respectively. The July 1988 level was 96.2 PPB, but subsequent readings were

much lower until the December 1990 reading rose to 115 PPB. The February 1991

reading was 89.7 PPB, and the readings in June and September 1991 were over 83

PPB. But the March 1992 reading was 15.9 PPB, and the last two readings were

below 6 PPB.

SP-6I started with a reading of 47.7 PPB. After a period of lower levels,

reaching a low of 4.5 PPB in December 1989, the levels increased again,

exceeding 85 PPB in February and June 1991. However, the levels went down again

to under 12 PPB in March and June 1992 and 3 PPB in September 1992.

SP-6II, which is the only sand point well to extend past the shallow

surficial aquifer to the intermediate surficial aquifer, has never had a reading

at 90 PPB or less. Starting with 120 PPB in March 1988, the levels increased to

208 PPB in October 1988 and gradually higher to 318 PPB in September 1990. The

next reading was 1221 PPB in December 1990, followed by 1463 PPB in February

1991. The readings in June and September 1991 were 349 and 467 PPB,

respectively. The latest readings in June and September 1992 were 179 and 164

PPB, respectively.

14/ Of course, this theoretical possibility could easily be eliminated in

subsequent studies through the purchase and installation of locks.

15/ About 500 feet south of SP-7, SP-6I, and SP-6II are the barn well and SP-2.

The barn well was read from July 1987 through September 1992. The first reading

was 227 PPB. The level gradually decreased, reaching 95.6 PPB in May 1989. The

readings remained in the 70s generally for the next 15 months, at which time

they fell to 53.1 for one reading and then the 30s generally for the next year.

The last two readings were 45.0 and 62.1 PPB in June and September 1992,

respectively.

SP-2 has never had a reading over 90 PPB, although it reached 86 PPB in

February 1991. In September 1990, the level dropped to below detectable limits,

where it has remained with two minor exceptions ever since.

16/ Just north of the road at the south end of the grove are SP-1 and the shop

or "mixing/loading" well. Read from July 1987 through September 1992, SP-1

started with 175 PPB. On six other occasions, SP-I bromacil levels exceeded 90

PPB, most recently in June 1991. But the levels steadily went down, until the

last reading was 8 PPB. Also read from July 1987, the shop well has had

increasing bromacil levels, with the only four readings over 90 PPB coming in

the last four readings.

The office well is across the road from the south end of the western

portion of the grove. Read from July 1987, the office well has fairly

consistent levels of 31-68 PPB with the highest levels in the most recent

readings.

17/ SP-8, SP-9, and SP-10 are to the east of the previously described wells and

just north of the residential area. SP-8 and SP-10 are in the grove, and SP-9

is just north of the grove. All three wells have been read from March 1988

through September 1992.

The northernmost well, SP-9, has had its highest levels of bromacil in the

last four readings, beginning in December 1991. These readings have all

exceeded 72 PPB with the September 1992 reading at 96.3 PPB.

SP-8 had its highest reading in March 1988 when it reached 291 PPB. For

the next 15 months, the levels remained over 100 PPB, and they exceeded 90 PPB

in December 1989 and March 1990. The levels have been lower since, dropping

from 54.1 PPB in March 1992 to 16.7 PPB in September 1992.

SP-10 has had the lowest levels of bromacil of the three wells in this

area. Starting with a reading of 70.6 PPB in March 1988, SP-10 had only two

more readings over 50 PPB and has not had a reading of even 10 PPB since

September 1990.

18/ 3617-2625 Jonesville Rd. after filter. Respondent Exhibit 3, compiled data

for residential wells.

APPENDIX

Rulings on Petitioners' Proposed Findings

1: adopted or adopted in substance.

2-4: rejected as subordinate.

5: rejected as unsupported by the appropriate weight of the evidence. The

leaching time is different from location to location due to variations in the

composition of the unsaturated zone and depth of the water table.

6: adopted or adopted in substance.

7-8: rejected as recitation of evidence.

9: rejected as irrelevant.

10-11: adopted or adopted in substance.

12: rejected as unsupported by the appropriate weight of the evidence.

MW-5 experienced a higher bromacil reading in 1993 than it did in September

1992. Several other monitoring wells showed only slightly lower readings.

13: rejected as unsupported by the appropriate weight of the evidence.

14-15: adopted or adopted in substance.

16-17: rejected as legal argument.

18: rejected as unsupported by the appropriate weight of the evidence and

irrelevant.

Rulings on Respondent's Proposed Findings

1-14: adopted or adopted in substance.

COPIES FURNISHED:

Hon. Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, FL 32399-0810

Richard Tritschler, General Counsel

Department of Agriculture

The Capitol, PL-10

Tallahassee, FL 32399-0810

J. T. Griffiths

2930 Winter Lake Rd.

Lakeland, FL 33803

Attorney Robert G. Worley

Department of Agriculture and Consumer Services

Room 515, Mayo Building

Tallahassee, FL 32399-0800

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Bldg.

Tallahassee, FL 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliott Bldg.

Tallahassee, FL 32399-0250

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.