STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCOTT C. MILLER, RICHARD E. ) MILLER, SR., and RICHARD E. ) MILLER, JR., )
)
Petitioners, )
)
vs. ) CASE NO. 89-5251
) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing on January 22, 1990 in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Sidney F. Ansbacher, Esquire
Turner, Ford, Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32202
For Respondent: D. Gary Early
Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
Whether or not Petitioner is eligible for restoration funding (but not insurance coverage) under the Florida Pollution Liability Insurance and Restoration Program (FPLIRP) for cleanup of discharges from underground petroleum storage tanks (USTs) underlying Petitioners' real property.
PRELIMINARY STATEMENT
Immediately prior to beginning formal hearing, DER's Motion to Amend Denial was orally granted without objection and the grounds upon which DER's denial of Petitioners' application for eligibility funding were characterized as follows: improper abandonment, lack of continuance of registration compliance, and, if Chapter 17-61 F.A.C. is found; not to apply, then FPLIRP eligibility may also be denied.
The parties stipulated to be mutually bound by their previously filed respective unilateral prehearing statements.
Official recognition was taken of General Law 89-188, HB430, and Chapters 17-61 and 17-69 F.A.C.
Petitioner presented the oral testimony of Timothy J. Dohaney, Scott
Miller, and Charlie D. Chambers and had Exhibits P1-11 admitted in evidence.
Respondent presented the oral testimony of Timothy J. Dohaney, John P. Svec, and William D. Truman and had Exhibit R-1 admitted in evidence.
Transcript herein was filed February 12, 1990. The parties' respective post-hearing proposals were each filed February 21, 1990. All proposed findings of fact have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.
FINDINGS OF FACT
Scott C. Miller, Richard D. Miller, Sr., and Richard D. Miller, Jr. as partners in "the Miller Partnership" (hereafter, Petitioners) acquired fee simple title to the site of a former gasoline station (active petroleum retail outlet) from Gulf Oil Corporation by a warranty deed dated January 30, 1984. None of Petitioners' principals have ever been in the business of storing or selling petroleum products.
At the time of purchase, the site contained five 3,000 gallon underground petroleum storage tanks (USTs) and two 550 gallon USTs. These tanks had been in use by Petitioners' predecessor in interest Gulf/Chevron, until January 30, 1984, the date Petitioners bought the real property, and Petitioners knew of the presence of the tanks at the time of purchase. Pursuant to the deed, Petitioners also acquired title to the tanks. The deed contained a restrictive covenant specifically prohibiting Petitioners from using the storage tanks for a period of three years, but did not restrict Petitioners from removing the storage tanks. At the time Petitioners took possession, none of them intended to put the storage tanks back in service, and no Petitioner has ever used the tanks for any purpose.
On May 21, 1984, the Department of Environmental Regulation's (DER's) Stationary Tanks Rules, Chapter 17-61 F.A.C. came into effect. None of the Petitioners' principals had actual knowledge of the substance or effective date of Chapter 17-61 F.A.C. until early 1989, shortly before they ordered the seven USTs removed from the subject property.
At some time prior to March 8, 1989, Petitioners entered into negotiations with their tenant, Jack Bush, a used car dealer, to sell the subject property to Mr. Bush. During negotiations, Mr. Bush informed Petitioners that something would have to be done with the USTs on the property and made their removal by Petitioners a condition of sale.
The Petitioners engaged Charles D. Chambers as an authorized agent of Petro Environmental Services, Inc. (Petro) to remove the storage tanks. Scott
C. Miller understood that he had employed Mr. Chambers to do whatever was necessary to comply with DER regulations, but Petitioners' decision to remove the storage tanks was not based on any contact with DER or representations by any of its employees. Physical removal of the tanks was accomplished March 1, 1989. During the course of tank removal, Mr. Chambers discovered petroleum-
contaminated soil on the site, which had not contained fuel for years preceding Petitioners' purchase, and Mr. Chambers notified DER on March 10, 1989 with a "Discharge Notification Form, 17-1.218(3)" (P-11). It is unlikely that the contaminated soil would have been discovered but for the removal of the USTs, but there is no evidence that removal of the tanks resulted in contamination of the soil or that they had leaked during any period of ownership by the Petitioners. The removal of the tanks was immediate and clearly within 90 days of discovery of the contamination, but not within 90 days of Petitioners' knowledge of existence of the tanks. See, 17-61.050(3)(c)1 F.A.C.
Upon receipt of the "Discharge Notification Form," Tim Dohaney, an Environmental Specialist II with DER's Pollutant Storage Tank Program based in the DER Jacksonville District Office sent Scott Miller o/b/o Petitioners a Request notice (P-2) dated March 16, 1989 which requested, among other things, that Petitioners submit a registration form to indicate that the storage tanks had been removed. This notice specifically provided, in pertinent part, as follows:
Upon reviewing the registration files for this facility it was determined that the facility has never been registered.
Therefore, it is requested that you complete the enclosed tank registration form and tank installation form to show the removal of the tank systems. The completed forms should be returned to this office within ten (10) calendar days upon receipt of this notice.
This request also listed several procedures necessary to bring the site into compliance.
On June 26, 1989, Mr. Dohaney notified Petitioners of an inspection to be conducted on July 18, 1989. The letter - Notice of Inspection (P-3) requested, among other things, that an updated registration placard be available on the site. The specific language provided, in pertinent part, as follows:
The Department is in receipt of a Discharge Notification Form completed on March 10, 1989 for the referenced facility.
As required by Chapter 17-61, on the day
of inspection, you should have available at the facility:
5) The updated registration placard.
This letter also specified several other items that must be available during inspection to show that the site had been in compliance.
On July 18, 1989, Dohaney, Scott Miller, and an attorney for Petitioners' predecessor in interest, Gulf/Chevron, met on the site. During the inspection, Dohaney informed the others that restoration coverage for the site might exist under FPLIRP, and Miller and the Gulf/Chevron attorney expressed interest in obtaining same. The conversation concerning FPLIRP was initiated by the attorney.
At the time of the inspection, however, the USTs had still not been registered, although they had been physically removed from the site approximately three and a half months earlier by a method DER's tank expert and spokesman, Mr. Svec, acknowledged was permitted by DER's rules (TR-90-91).
After the inspection, Mr. Dohaney completed and served on Petitioners a July 18, 1989 "Inspection Report Form" (P-4) which provided, in pertinent part, as follows:
The tanks remained on-site, improperly abandoned until 3-89 when they were removed. Violations - as shown on page 1 & 23 1) tanks are not/were not registered; 3,4) updated registration form not submitted upon tank removal; 49, 50, 51) cleanup has not begun - owner will be applying for restoration coverage under HB430.
Thereon, under the heading, "13. Tanks properly abandoned? 17- 61.050(3)(c)," Mr. Dohaney had checked the column for "yes," but added, "Tanks had been on- site, improperly abandoned since approx. 1984," and checked the "yes" column for "removed." The inspection form also noted or reiterated improper abandonment, contamination discovered at time of 3-89 abandonment, lack of registration, and that groundwater had been contaminated.
By way of a July 19, 1989 letter (P-5), Mr. Dohaney again requested that the tanks be registered and directed Petitioners and the attorney for Gulf/Chevron to contact DER's Tallahassee Bureau of Waste Planning concerning the possibility of restoration coverage, using the following language:
Mr. Robert W. Wells, Jr., Attorney for Chevron USA and you expressed an interest in applying for restoration coverage and subsequent State Cleanup for your site under the guidelines of House Bill 430. Therefore, it is requested that you contact the tank regulation section of the Bureau of Waste Planning (BWPR) in Tallahassee at (904) 488- 3935 for information regarding the program and an affidavit that must be completed by you and returned to the Department.
The registration/notification form that
was given you during the inspection should be completed and returned to this office within ten (10) calendar days upon receipt of this Notice (Emphasis supplied).
On August 1, 1989, Mr. Chambers subsequently submitted to DER an executed updated "Storage Tank Notification Form 17-61.090(3)" (P-11). Receipt of this form was acknowledged by Mr. Dohaney as an "updated registration form" for removal of the USTs in a letter dated August 10, 1989 (P-6). In this letter, Mr. Dohaney further notified Petitioners via their attorney as follows:
As of this date, this office has no further requests regarding this location.
However, as discussed, the district office is awaiting a determination by DER-Tallahassee on this site's eligibility status regarding the restoration program of the FPLIRP program. If the site is denied eligibility, an assessment and cleanup will be required by the responsible party.
All DER witnesses at formal hearing acknowledged that they regarded the August 1, 1989 "Storage Tank Notification Form 17-61.090(3)" (P-11) as Petitioners' "registration," albeit late registration in their eyes.
Mr. Scott Miller properly interpreted his July 18, 1989 conversation with Mr. Dohaney and all of the foregoing notifications to mean that DER found Petitioners' tanks to have been "properly abandoned."
However, despite all of the foregoing written notifications, Mr. Scott Miller also interpreted his July 18, 1989 conversation with Mr. Dohaney and Mr. Dohaney's August 10, 1989 letter (P-6) as DER's assurance that Petitioners' site would qualify for restoration funding, and in that state of mind, he directed Petitioners' attorney to submit an application to DER for FPLIRP restoration benefits. Petitioners' decision to apply for coverage, however, was also based upon conversations with the Gulf/Chevron's attorney, with Mr. Chambers, and with Petitioners' own attorney. Petitioners' application for restoration funding was dated August 11, 1989 (P-8).
DER subsequently denied eligibility for the site on the basis that the tanks were not in compliance with Chapter 17-61 F.A.C. in that they had been improperly abandoned in accordance with Chapter 17-61 F.A.C. and had not been registered in accordance with Chapter 17-61 F.A.C. Thereafter, by a "Warning Notice" (P-1) from Mr. Dohaney on November 27, 1989, DER attempted to fine Petitioners for noncompliance with Chapter 17-61 F.A.C. and for leakage, but this "Warning Notice" was withdrawn pending outcome of the instant proceedings (P-9).
In interpreting its own rules and mission, DER does not view the act of tank removal by itself as constituting compliance with Chapter 17-61 F.A.C. Its standing operating procedure, according to Mr. Svec, a DER expert and agency spokesman, is to regard Chapter 17-61 F.A.C. as applicable to sites such as Petitioners' site even after physical removal of USTs (TR 93). In assessing eligibility, DER reviews tank compliance "history," including whether the tanks were properly abandoned in accordance with the time frames established within the Chapter. For eligibility, agency personnel interpret the statute and rules to require that a tank must be in continuous compliance with the rules and to further require that an updated registration be submitted within 10 days of tank removal. The agency also views a failure in registration to be such a major violation of the registration requirement imposed by statute and rules that it cannot be waived by the agency pursuant to the latitude granted it by Section 376.3072(3)(b) F.S.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
Petitioners bear the burden of proof herein. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
Petitioners' position is that because their contractor discovered and reported the petroleum discharge from their USTs to DER (notification) during the period covered by Section 376.3072 F.S., and because Petitioners also accomplished registration of the USTs before they applied for FPLIRP, their period of noncompliance with the registration requirements (from the January 30, 1989 date of property purchase and knowledge of the tanks' location until August 1, 1989) ought not to bar their eligibility for restoration benefits, payable by State monies which DER was required to set aside for this purpose. See Section 376.3071(4)(j) F.S.
Petitioners further contend that they relied on Mr. Scott Miller's conversation with and correspondence from Mr. Dohaney and Mr. Dohaney's August 10, 1989 letter to Mr. Miller (See FOF 11, 13) in submitting their August 11, 1989 FPLIRP application to DER. Petitioners' post-hearing proposals also characterize Mr. Dohaney's actions to enforce Chapter 17-61 F.A.C. subsequent to Petitioner's physical removal of the USTs as constituting the agency's "acknowledgment" that Chapter 17-61 F.A.C. governed Petitioners' site at all times, even after tank removal, and suggest these actions further establish that the tank removal itself had been done in compliance with Chapter 17-61 F.A.C.
Petitioners argument with regard to entitlement based upon reliance is rejected. Since no determination of restoration eligibility could begin to be made by DER until Petitioners submitted an application, the Petitioners' change of position, i.e., that of submitting an application in reliance on anyone, including Mr. Dohaney, was at best a moot point and certainly could not constitute reliance "to their detriment." Since such reliance in submitting an application could not operate to Petitioners' detriment, it also could not create any estoppel against DER. Moreover, having assessed the candor and demeanor of all the witnesses as well as having analyzed their testimony and the exhibits, the undersigned is satisfied that Mr. Dohaney never "guaranteed" Petitioners would be found to be eligible under FPLIRP, and notes that even if Mr. Dohaney had made such a guarantee, Mr. Dohaney could not bind the agency without clear and express authority to do so. Such authority was absent here. Any reliance by Petitioners in this regard was certainly not "reasonable," since the record is rife with exculpatory information provided Petitioners by Mr. Dohaney with regard to limitation of his authority. Likewise, since Petitioners removed the tanks on March 1, 1989 before their first contact with DER, and since DER consistently and repeatedly urged Petitioners to register the tanks, which Petitioners did not accomplish until August 1, 1989, Petitioners have failed to demonstrate any reliance on DER in their removal of the USTs or reliance by failure to register. On the other hand, Petitioners are correct that Mr. Dohaney's actions and representations, while at best constituting free form agency action as they relate to FPLIRP eligibility, are indicative that DER's standard operating procedure was to regard Chapter 17-61 F.A.C. as applicable to Petitioners even after Petitioners physically removed the tanks from their property, and this agency interpretation of the statute and rules was also directly confirmed by the testimony of Mr. Svec, Respondent's tank expert. Clearly, throughout the period between the date DER received notification of the
discharge (March 10, 1989) and the date of Petitioners' application for restoration funds (August 11, 1989), the agency, acted in every way as though the site were subject to Chapter 17-61 F.A.C. registration and as if DER had determined that the physical removal of the USTs had been accomplished appropriately within its own rules. Moreover, Mr. Svec testified directly that the removal (abandonment) method elected by Petitioners and Mr. Chambers was proper.
Respondent DER has argued that the applicable statute and rules require that only "consistent compliance" with Chapter 17-61 F.A.C. can result in eligibility, and since Section 17-61.050 F.A.C. requires a UST owner to register a site as abandoned within ten days after the UST is removed and the Petitioners did not register the USTs as abandoned until almost five months after they had removed them, DER could not apply its discretion to waive that procedural timing requirement.
However, having determined that the method of tank removal/abandonment was correct as a matter of fact and law, the essence of this case becomes one of statutory construction and application of existing rules. The fact that Chapter 17-61 F.A.C. came into effect after Petitioners purchased the subject site or that they did not have actual knowledge of those rules is immaterial. They are presumed to have constructive knowledge thereof.
At all times material the following organic law (emphasis provided throughout) was in effect:
376.315. CONSTRUCTION OF ss. 376.30- 376.319.--
Sections 376.30-376.319, being necessary for the general welfare and the public health and safety of the state and its inhabitants, shall be liberally construed to effect the purposes set forth under ss. 376.30-376.319 and the Federal Water Pollution Control Act, as amended.
Section 376.3072 F.S. provides, in pertinent part: (3)(a) ELIGIBILITY FOR PARTICIPATION - Any
owner or operator of a petroleum storage
system, as defined in S. 376.301, who is subject to and in compliance with this chapter and the rules relating to stationary tanks adopted pursuant to S. 376.303 with respect to a particular location, as determined by the department, is eligible to participate in the Florida Petroleum Liability Insurance and Restoration Program for the location.
(b) The failure of any owner or operator of a storage system containing petroleum products to maintain compliance with this chapter and rules relating to stationary tanks adopted pursuant to S. 376.303 at any location will result in the cancellation of liability insurance provided through the program and eligibility for the restoration
program for that location.
For purposes of this paragraph, the department may, in its discretion, waive minor violation of this chapter or of rules adopted pursuant to S. 376.303, including, without limitation, violations of provisions relating to the form of inventory or reconciliation records or violations of registration requirements.
DER's authority and responsibility to establish rules (emphasis supplied) to implement the foregoing statutory law is clear.
376.303...
The department has the power and the duty to:
Establish rules, including but not limited to, construction standards, permitting or registration of tanks, maintenance and installation standards, and removal or disposal standards, to implement the intent of ss. 376.30-376.319 and to regulate underground and aboveground facilities and their onsite piping systems.
Section 17-769.300 F.A.C. provides (emphasis supplied): Applicability - The Florida Petroleum
Liability Insurance Program and the
provisions of this rule shall be applicable to owners and operators of petroleum storage systems which are subject to and in continuous compliance with the rules of the department pertaining to stationary tanks, and to owners and operators of stationary storage tanks with a capacity of 550 gallons or less which store vehicular fuel, other than agricultural tanks, which demonstrate continuous compliance with the construction, operation and maintenance standards and schedules contained in the rules of the department pertaining to stationary tanks; provided the owners and operators are eligible for and participate in the insurance or restoration programs.
Section 17-769.700 F.A.C. which provides, in pertinent part (emphasis supplied):
Cancellation of eligibility for restoration coverage.
The department shall cancel eligibility for restoration coverage of any participating owner or operator or any eligible petroleum storage system for any of the following reasons:
1. The department or contractor determines that the participating owner or operator has failed to maintain continuous compliance with this rule and the rules related to stationary tanks adopted pursuant to Section 376.303, F.S....
Section 17-61.050 F.A.C. provides, in pertinent part (emphasis supplied):
Registration and Notification Requirements.
Each owner or operator ;hall register the following on forms provided by the department:
1. All existing facilities by December 31, 1984.
Each owner or operator shall make notification of the following on forms provided by the department:
All storage systems within ten (10) days of abandonment.
(3) Storage System Status
Abandoned storage systems.
1. The owner of an abandoned storage system must within 90 days after discovery, pump the system clean of free liquid, and remove the storage system in a safe manner, except that underground tanks may be filled
with sand, concrete, or other inert material in lieu of removal, in accordance with the requirements of API Bulletin 1604, 1981,
Chapter 2.
By July 18, 1989, DER clearly had determined that the USTs were properly abandoned pursuant to Chapter 17-61 F.A.C. The facts as found supra must result in the same determination here. The method used by Mr. Chambers as agent for Petitioners back in March 1989 met the requirements of Rule 17- 61.050(3)(c)1 F.A.C.
Notification to DER by Mr. Chambers was timely (within 10 days of abandonment) pursuant to Rule 17-61.050(1)(b)1 F.A.C. Registration had occurred by the date of Petitioners' application for certification of eligibility but was not timely (by December 31, 1984) pursuant to Rule 17-61.050(1)(a)1. Still, Petitioners were "in compliance" and had done all they could do at the time they applied for eligibility. They met the specific criteria of Section 376.3072(3)(a) F.S. when they applied. It is provided under Subsection (3)(b) of the same statutory section that failure to maintain compliance (i.e., "consistent compliance") will result in cancellation of eligibility for the restoration program, but that very language suggests that it applies to an operating facility which is required to continue monitoring and maintaining records. Read in para materia with the rest of the statute, such an interpretation is clearly what was contemplated by the drafters. Even so, that subsection further provides for waiver of minor violations of the statute or rules promulgated thereunder "including, without limitation ... violations of registration requirements."
Despite DER's "parade of imaginary horribles" of what could occur if the time frames established by rule are waived in cases where the Petitioners are culpable in petroleum spill situations, none of those circumstances are present here. Petitioners are, essentially, innocent parties who set about a voluntary cleanup in a reasonable manner and who were caught up in a confusion of bureaucratic paperwork. It is difficult to imagine how the filing on August 1, 1989 of one form labelled "notification" could constitute appropriate registration while filing another form providing essentially the same information and also labelled "notification" on March 1, 1989 could not, or how the filing of the latter form could have furthered the purpose of this legislation while the first did not, or even how earlier registration within the December 31, 1984 cutoff date, on the right form, could have furthered the purpose of this legislation better.
"The legislative intent is the polestar by which the courts must be guided since it is the essence and vital force behind the law." See 49 Fla. Jur. 2d Section 114, and cases cited therein. Here, the monies sought by Petitioners are to be paid, if Petitioner is found eligible, from the Inland Protection Fund. See, Section 376.3072(4) F.S.
Section 376.3071(2) F.S. sets out legislative intent with regard to the Inland Protection Fund as follows:
It is the intent of the Legislature to establish the Inland Protection Trust Fund to serve as a repository for funds which will enable the department to respond without delay to incidents of inland contamination related to the storage of petroleum and petroleum products in order to protect the public health, safety, and welfare and to minimize environmental damage. (emphasis supplied)
Section 376.319 F.S. requires liberal construction of 376.3072(3)(b) to effect that intent. The legislative intent will be best served here by waiving the delay in registration which occurred in these unique circumstances, and finding Petitioners eligible for State restoration monies.
Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order approving Petitioners' application for Florida Pollution Liability Insurance and Restoration Program restoration coverage.
DONE and ENTERED this 5th day of April, 1990, at Tallahassee, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1990.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5251
The following constitute specific rulings pursuant to Section 120.59(2)
F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:
Accepted: 1-4, 5-9, 10-11, 15-16, 20-26, 28-40, 45-47, 50.
Irrelevant: 12-13.
Immaterial: 14 (except that effective date is accepted), 17.
18 is rejected because it is stated as a conclusion of law; however, the age of the petroleum discharge is discussed in the Recommended Order.
27 is rejected because it is stated as a conclusion of law and as legal argument. Rejected as legal argument and not dispositive of the issue of rule interpretation in de novo proceedings. However, for all the reasons enunciated in the Recommended Order, proper abandonment has been found and concluded both in fact and in law: 41-44, 51-52.
Subordinate and unnecessary: 48-49. There is no 19.
Respondent's PFOF:
Accepted: 1-9, 11, 13-25, 27-35, 36-41, 43, 50, 57.
Rejected because stated as legal argument or as a conclusion of law: , 10,12, 26, 49, 51-56, 58-64. In most instances they are also direct quotations of agency witnesses' testimony and cumulative. Although the agency's interpretation of statutes and rules are to be accorded much weight, they are not required to be found as facts where, as they are here, cumulative or unnecessary.
Rejected as subordinate, unnecessary, or cumulative to the facts as found: 42, 44-48.
COPIES FURNISHED:
Sidney F. Ansbacher, Esquire Turner, Ford & Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32202
Gary Early
Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
SCOTT C. MILLER,
RICHARD E. MILLER, SR., AND RICHARD E. MILLER, JR.
Petitioners,
vs. DOAH CASE NO. 89-5251
OGC CASE NO. 89-1121
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On April 5, 1990, the Hearing Officer from the Division of Administrative Hearings submitted to the Department of Environmental Regulation (Department) and Petitioners, Scott C. Miller, Richard E. Miller, Sr., and Richard E. Miller, Jr. (Petitioners) her Recommended Order. (Exhibit 1) Both parties submitted timely exceptions and responses to exceptions to the Recommended Order. The matter thereupon came before, me as Secretary of the Department for final agency action.
INTRODUCTION AND BACKGROUND
This proceeding concerns the question of the eligibility of Petitioners under the Florida Pollution Liability Insurance and Restoration Program (FPLIRP), Section 376.3072, F.S., for restoration funding for site clean up. Petitioners applied for such eligibility for discharges from underground petroleum storage tanks on their property, and the Department proposed to deny the FPLIRP eligibility, and thus, the funding. The Department's asserted bases for the denial were improper abandonment and failure to be in continuous compliance with registration requirements.
Petitioners claimed generally that they met all requirements for eligibility; and, alternatively, that the Department was estopped from denying the funding because of representations made by the Department.
RULINGS ON EXCEPTIONS
Petitioners' Exceptions
Petitioners' first exception states that the Officer failed to rule on Petitioners' Proposed Finding of Fact No. 53. Petitioners correctly cite to case authority requiring that the Hearing Officer explicitly rule on every proposed finding of fact. However, if the Hearing Officer has in effect ruled on the same issue by making a finding of fact in the Recommended Order, I shall consider the failure to make an explicit finding in the appendix as harmless error.
In the proposed finding, Petitioners asserted that:
Mr. Truman's determination that the USTs were not registered is also contradicted by Mr. Dohaney's testimony and letter to the Miller Partnership's attorney on August 10,1989 (T.26-27, P.E. 6), acknowledging receipt of an updated registration showing abandonment of the USTs (P.E.11)
The Hearing Officer in her Finding of Fact No. 11 found among other things that:
All DER witnesses at formal hearing acknowledged that they regarded the August 1, 1989 "Storage Tank Notification Form 17-61.090(3)" (P-11) as Petitioner's "registration," albeit late registration in their eyes. (emphasis added)
Mr. Truman was a Department witness. It is clear from Finding of Fact No.
11 that the Hearing Officer held that all Department witnesses agreed that the tanks were registered. Both Mr. Dohaney's testimony and Mr. Truman's testimony were considered by the Hearing Officer to be in agreement as to the date of the registration of the tanks. This agreement as to the date of registration presupposes that registration did in fact take place. Therefore, the Hearing Officer explicitly dealt with the matter raised in the exception in the body of her Recommended Order.
Finally, it is clear from the record as a whole, that the facts regarding the registration of the tanks on the property were uncontroverted throughout the proceeding. The legal significance of the date of registration is a central
issue, but the particulars of when and how the regstration was made were introduced without objection. The particular facts listed in Petitioner's proposed Finding of Fact No. 53 are not material to the ultimate determination of the issues in this case. Therefore, I find the failure of the Hearing Officer to rule on the proposed finding of fact in the appendix to be harmless error, and the exception is rejected.
Petitioner's second exception is directed to Conclusion of Law No. 5, (R.O. pp.10-12) which holds that Petitioners failed to establish that the Department was estopped from denying eligibility for FPLIRP restoration funding. Petitioners raise two points in their exception.
Petitioners first except to the Hearing Officer's use of the term "guaranteed" in her conclusion, and second to her determination that Mr. Dohaney was without authority to bind the agency. In both instances Petitioners are taking the statements in the conclusion out of context.
The basis for the Hearing Officer's rejection of the estoppel claim was that, because an application had to be made before determination of eligibility for funding could be determined, any reliance by Petitioners on statements made by the Department's employees prior to the application were moot. She further stated that the change of position claimed by the Petitioners, submitting an application in reliance on Mr. Dohaney, could not constitute detrimental reliance. As second basis, the Hearing Officer points out that Petitioners' removal of the tanks cannot be considered detrimental reliance, as it was accomplished before their first contact with the Department.
These two conclusions of the hearing officer constitute independent bases for finding a failure of proof on Petitioners estoppel claim. Therefore, whether there was any guarantee or not is immaterial to the ultimate result.
However, I find that the record does support the finding, and therefore cannot overturn it. Finally, I find to be correct her conclusion that Mr. Dohaney was without clear and express authority to bind the Department on the issue of reimbursement. Petitioners' record citations do not their claim to the contrary. In the cited testimony Mr. Dohaney merely stated that his general area of responsibility was "compliance, inspections, enforcement" of Chapter 17- 61, F.A.C. He made no reference to FPLIRP eligibility or funding determinations. In fact the remainder of the record supports the conclusion that he directed the Millers elsewhere for such a determination. Therefore, I reject Petitioners' second exception.
Response to the Department's Exceptions
In its first exception, the Department ask that I overturn the conclusion of the Hearing Officer that the Petitioners' facility qualifies as eligible for FPLIRP because the Petitioners used a proper method of abandonment, subsequently registered the tanks and from that time on maintained the site in compliance with Chapter 17-61, F.A.C.
This exception addresses the ultimate issue to determined in this proceeding. In order to address the exception properly, it is essential to establish the factual predicate for the legal conclusions. The dates of various actions taken by Petitioners and the Department have been repeatedly stated throughout this proceeding and appear to be undisputed. Therefore, I adopt the findings of the Hearing Officer with respect to the dates on which various relevant actions occurred.
The issue that must be resolved concerns the legal significance of the course of action taken by Petitioners, not the facts themselves. That is, whether the failure of Petitioners to comply with the requirements of Chapter 17-61, F.A.C., prior to 1989 precludes them from participation in FPLIRP.
With regard to the issue of the effect of Petitioners non-compliance from 1984 to 1989, the Hearing Officer's analysis is silent, even though the issue was raised by the Department in its Pre-hearing Stipulation and testimony, and in its Proposed Findings of Fact, Conclusions of Law and Recommended Order. The Hearing Officer does refer to Petitioners' position that the period of non- compliance from the January 30, 1984, 1/ purchase date until August 1,1989 should not act as a bar to eligibility. However, the Hearing Officer does not address the non-compliance specifically in her analysis except as it pertains to her view of the purpose of the legislation. That issue is discussed below.
The record establishes that the Petitioners did not comply with the provisions of Chapter 17-61, F.A.C., prior to March, 1989, and that they were subject to those provisions at all times since the effective date of the rule. Petitioners were aware of the existence of the tanks on their property at the time of purchase. (Finding of Fact No. 2, R.O. p.3) The requirements of Chapter 17-61, F.A.C., became effective on May 21, 1984. (F.F. 3, R.O. p.3) Petitioners are presumed to have constructive knowledge of applicable laws. (C.L. 17, R.O. p.12-13) Therefore, Petitioners were required to register their tanks by December 31, 1984. Rule 17-61..050(1)(a)1., F.A.C. Petitioners were also required to abandon the tanks by removing or filling them within ninety days of discovery. Rule 17-61.050(3)(c), F.A.C. Discovery is defined in Rule 17- 61.020(7), F.A.C., as being "either actual discovery or knowledge of the existence of the abandoned facility or discharge." Petitioners did not register their tanks, nor did they properly abandon them by removing them for, over four years from the effective date of the regulations. The Hearing Officer made a specific finding that the removal of the tanks was not within the required ninety days of discovery of the tanks and cited Rule 17-61.050(3)(c), F.A.C. (F.F. 5, R.O. p.4) The Hearing Officer also found that registration was not timely. (C.L. 12, R.O. p.16)
In her Conclusion of Law No. 12 (R.O. P. 16), the Hearing Officer acknowledged, but apparently did not consider dispositive on the issue of eligibility, this long history of non-compliance. In that conclusion she stated that ,Petitioners met all the requirements of eligibility when they applied for FPLIRP coverage. By not consider the previous non-compliance, the Hearing Officer failed to address the underlying question of whether that undisputed history was legally sufficient to defeat Petitioners' claim of eligibility. In doing so, the Hearing Officer impliedly held the previous non-compliance to be inapplicable to the determination of eligibility for FPLIRP. I disagree and for the reasons stated below, hereby overturn the conclusion of the Hearing Officer.
It is clear that the rules of the Department explicitly require continuous compliance with Chapter 17-61, F.A.C., as a prerequisite to eligibility under FPLIRP. Rule 17-769.400, F.A.C. This is different from the Hearing Officer's finding that "agency personnel interpret the statute and rules to require that a tank must be in continuous compliance..." (emphasis added)(F.F. 15, R.O. p.9)
It is also clear that the Department has interpreted the continuous compliance requirement to include consideration of the compliance history of a facility. (F.F. 15, R.O. p.9)
The Hearing Officer apparently concluded that the Department's interpretation of its rules should be disregarded because the requirement for continuous compliance from 1984 would not further the purpose of the enabling legislation, presumably Section 376.3072, F.S., which establishes the FPLIRP program. (C.L. 13, R.O. p.17) The other supporting citation of the Hearing Officer is to the fact that the Inland Protection Trust Fund, Section 376.3071, F.S., serves as the source of funds for the restoration payments under the FPLIRP. She also cites the intent language of the Fund which is to protect the public health, safety, and welfare and to minimize environmental damage. (C.L.
14 & 15, R.O. p.17) As the effect of the FPLIRP restoration program is to assist property owners by providing a mechanism to avoid economic liabilities, the promotion of environmental protection is at best an indirect result of the funding program. Furthermore, I note that the Inland Protection Trust Fund is not exclusively dedicated to the FPLIRP. In fact funding of Section 376.302,
F.S. is only one of ten listed uses for the fund. See, Section 376.3071(4)(a- j), F.S. The Hearing Officer also states that the law mandates a "liberal construction" of Section 376.3072(3)(b), F.S. Section 376.315 mandates a liberal construction of all of Sections 376.30-376.319, F.S., which, as noted below, goes well beyond funding of restoration.
The interpretation of the Department that continuous compliance includes the period of time since enactment of the applicable regulations is reasonable and should be upheld. This interpretation is consistent with the legislative intent of Sections 376.30-376.319, F.S., and specifically with the legislative intent of Section 376.3072, F.S. The overall purpose of the legislation is not to provide funding for site restoration to privately owned lands, but to provide protection from contamination for the surface and groundwaters of the state.
Section 376.30, F.S. The legislature explicitly provided that the owner of a site is the person responsible for conducting site rehabilitation and that those who operate such sites are liable for the costs of contamination. Sections 376.301(18), F.S.; 376.30(2)-(3), F.S. The provision by the legislature of a source of funds that is available to private and governmental entities for coverage of third-party liability and to provide for restoration can be considered to be a benefit provided by the state to relieve those entities of a potentially onerous financial responsibility. The state is not required to provide such a benefit, and it is reasonable for the state to restrict the availability of those benefits to entities who have operated in a manner protective of the surface and groundwater resources of the state that the legislation is designed to protect. Finally, it is also consistent with the fact that eligibility under the statutory scheme is expressly conditioned.
Petitioners failed to meet the requirements of Chapter 17-61, F.A.C., for over four years. Until the removal of the tanks in March, 1989, no measures were taken to detect or control contamination. As the Department pointed out at page nine of its exceptions, earlier compliance might have prevented the discharge or, at a minimum, could have prevented its spread.
In addition, if the tank had been registered or properly abandoned at the time required under the rules, Petitioners' facility would not qualify now for restoration under FPLIRP. The funding under FPLIRP does not apply to sites on which discharges were discovered prior to January 1, 1989, until the site is restored, determined not to require restoration or insured. Section 376.3072(2), F.S.; See also Rule 17-769.600(4), F.A.C. It is reasonable for the Department to interpret its rules to require that sites that failed to comply prior to January 1, 1989, be subject to restrictions on funding that would have applied had they been in compliance. To do otherwise would be to reward non- compliance and compliance with Department regulations.
An agency's interpretation of its rules and statutes is entitled to great weight and should not be overturned unless clearly erroneous. Laborers' International Union of North America, Local 478 v. Burroughs, 541 So.2d 1160 (Fla. 1989). As the interpretation of the Department that continuous compliance includes historical compliance with Chapter 17-61, F.A.C., is reasonable and consistent with the enabling legislation, it should be upheld. Therefore, I accept the Department's exception and hold that because Petitioners have not demonstrated continuous compliance, they are not eligible for restoration under FPLIRP.
The Department's second exception, which is related to the first, asks me to overturn the Hearing Officer's determination that Petitioners' failure to timely register the tanks must be waived as a "minor violation" pursuant to Section 376.3072(3)(b), F.S. That provision allows the Department to waive, in its discretion, minor violations including violations of registration requirements.
This portion of the FPLIRP statute deals with those tanks that are in compliance and provides that eligibility depends on maintaining compliance. The statute states that the failure to maintain compliance will result in cancellation of eligibility. The term "maintenance" presupposes that the tanks were in compliance at some point. The only way to apply that provision in this case is to assume that the removal of the tanks brought the site into compliance and that the failure to register them after removal was a subsequent non- complying act that the Petitioners seek to have excused through the waiver mechanism.
I determined in my previous ruling that Petitioners are ineligible for funding because they have failed to continuously comply with Chapter 17-61, F.A.C., which failure included improper (untimely) abandonment as well as failure to meet the registration requirement. That ruling alone is sufficient to dispose of this case. However, for the sake of clarity in future Department decisions and in the event this decision is appealed, shall address the issue raised in this exception.
The failure to register at issue in this discussion occurred between the time the tanks were removed and the contamination discovered in March, 1989, and the date that Petitioners submitted the registration on August 1, 1989. During this period the Department made repeated specific requests that the tanks be registered. Leaving aside the fact that the tanks were required to be registered since 1984, if the tanks are considered to have come into compliance when the removal and notification were made in March of 1989, then the question becomes whether the waiver provision applies to the delay in registration of over four months.
The question of applicability is two fold. First, a determination must be made whether the violation is a minor one which may be waived. The determination of what constitutes a minor violation is a question of interpretation. As with any other interpretation of enabling legislation for an agency, the interpretation of the agency is entitled to great weight and should not be overturned unless clearly erroneous. Laborers' International Union, supra. Agency personnel experienced in applying the FPLIRP regulations testified at hearing that the agency applied the "minor" designation to paperwork errors such as mislabeling, failure to keep an inventory or inventory errors. (testimony of Svec, Tr. p.96-97) The only evidence at hearing concerning failure of registration was that the Department considered it to be a
major violation. (testimony of Svec, Tr. p.97; testimony of Truman, Tr. p. 110) A review of the registration form (Pet. Ex. 11) indicates that the form provides the Department with information concerning, the tanks at the site. It is reasonable for the Department to consider that it is more than a minor violation to fail to provide it with information needed to evaluate the site. As the Department's interpretation is reasonable and directly related to the statutory purpose, it must be upheld.
Even if the violation were to be considered minor, the Department did not abuse its discretion in refusing, to waive the violation. Considering the repeated communications from the Department to Petitioners requesting registration and the long history of non-compliance that preceeded any action on the part of Petitioners, I find that it would not have been an abuse of discretion for the Department to deny the waiver.
For all of the reasons stated above, I accept the Department's second exception and find that the four month failure to register after the removal of the tanks was a major violation. I further find that even if it could be considered to be a minor violation, considering the long history of non- compliance at this site it would not be an abuse of discretion to refuse to waive the failure to register.
The Department's third exception is to the Hearing Officer's Finding of Fact No. 5 (R.O. p.4) in which the Hearing Officer found that the tanks "had not contained fuel for years preceeding Petioners' purchase." I agree with the Department that the only evidence in the record on the point indicates that the tanks were in use by the previous owner up to the time of purchase. Therefore I accept the Department's exception and modify the finding of fact accordingly. However, the change is irrelevant to the outcome, since all existing tanks, regardless of use history, were subject to Chapter 17-61 at the time it became effective.
The Department next excepts to a portion of the Hearing Officer's Finding of Fact No. 5 (R.O. p.4) to the effect that there is no evidence the removal of the tanks resulted in contamination of the soil or that the tanks leaked during the Petitioners' ownership. While I agree with the Department that this finding is immaterial to the outcome of this case, it is a true statement of the evidence, or lack thereof, in the record. Furthermore, there is no indication that the Hearing Officer used the finding as a determining factor in her ruling. Therefore except to find that the finding is immaterial, I reject the Department's exception.
The Department next excepts to the Hearing Officer's characterization in her Conclusion of Law No. 15 (R.O. p.18) that the circumstances of this case are unique. I agree with the Department that the record contains no evidence to support a determination that these circumstances are unique. To the degree that this characterization was intended to support the Hearing Officer's recommendation that the site be found to be eligible for restoration funding, I accept the Department's exception, and modify the Conclusion accordingly.
The Department's sixth exception asks me to reject the Hearing Officer's Finding of Fact No. 14. (R.O. p.8) The Department is technically correct that the Warning Notice does not in and of itself impose a fine on Petitioners. However, the Warning Notice does mention "legal action for judicial imposition of fines." Therefore I accept the Department's exception and hereby modify the Hearing Officer's finding to state that the Department sent a notice of its intention to seek fines if a Contamination Assessment was
not initiated at the site and a Contamination Assessment Report/Remedial Action Plan were not submitted in six months. However, I further find that the issuance of the Warning Notice, including any reference to fines, is irrelevant to the disposition of this case, except that it demonstrates notice to Petitioners of certain requirements.
The Department's final exception asks that I reject the Hearing Officer's characterization of Petitioners as "innocent parties who set about a voluntary cleanup in a reasonable manner and who were caught up in a confusion of bureaucratic paperwork." To the extent that the characterization of Petitioners as "innocent" is intended to serve as a basis for a conclusion that Petitioners should not be held responsible for compliance with the registration and abandonment requirements of Chapter 17-61, I agree with the Department. There is however, no indication that Petitioners purposefully ignored the requirements of Chapter 17-61 or were aware of the contamination at the site prior to the removal of the tanks.
As to the characterization that the Petitioners engaged in a voluntary cleanup, I find that Petitioners were under no threat of enforcement by the Department at the time they removed the tanks and the removal was therefore voluntary. I further find that there is no indication in the record that any further cleanup at the site has occurred.
Finally, as to the characterization of the notification and registration requirements as bureaucratic paperwork, I find that notification and registration have a substantive purpose as the stage leading to contamination assessment and cleanup. Without these notices, the Department would be unable to carry out its statutory directive to protect the surface and groundwater of the state from tank related contamination.
In using this characterization, the Hearing Officer was attempting to distinguish the situation of the Petitioners from one in which a party has knowledge of contamination or intentionally causes a discharge to occur.
Petitioners do not fit into either of these categories. However, as I found in my previous response to the Department's exceptions, Petitioners were subject to and responsible for complying with Chapter 17-61. To the extent the Hearing Officer's characterization was intended to excuse the non-compliance, I accept the Department's exception and reject the characterization for the reasons I have previously stated in finding Petitioners ineligible for the restoration funding under FPLIRP.
Having ruled on all exceptions, it is hereby ORDERED:
The Findings of Fact and Conclusions of Law of use Hearing Officer are accepted except as specifically rejected or modified herein.
Petitioners request for restoration funding under Section 376.3072, F.S., (FPLIRP) is DENIED.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2660 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 18th day of May, 1990, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904)488-4805
ENDNOTE
1/ The Recommended Order (p.10, par.3) states the date of purchase to be January 30, 1989. However, it is clear from the other findings and from the record that the actual date was January 30, 1984. The reference to 1989 is presumed to be a typographical error. The Recommended Order is hereby corrected to reflect the correct purchase date of January 30, 1984.
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to s 120.52 Florida statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
5/18/90
Clerk Date
| Issue Date | Proceedings |
|---|---|
| Apr. 05, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 18, 1990 | Agency Final Order | |
| Apr. 05, 1990 | Recommended Order | Application for Pollution Liability Insurance Restoration Program held timely in Recommended Order; Final Order contrary. |
JONES MANAGEMENT CORPORATION vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 89-005251 (1989)
STEPHEN OBER vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 89-005251 (1989)
DEPARTMENT OF ENVIRONMENTAL REGULATION vs STANLEY M. BUTLER, 89-005251 (1989)
THOMAS L. MCNAUGHTON vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 89-005251 (1989)
