STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PETROLEUM MARKETERS ) ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1357RP

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 4 and 5, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William E. Williams, Esquire

Robert D. Fingar, Esquire HUEY, GUILDAY, KUERSTEINER &

TUCKER, P.A.

106 East College Avenue, Suite 900 Post Office Box 1794

Tallahassee, Florida 32301

For Respondent: Janet E. Bowman

Assistant General Counsel Beth G. Lowery

Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

1. Whether proposed amendments to Rules 17-761.200, 17-761.500 and 17- 761.510, Florida Administrative Code, are arbitrary and capricious, and therefore, constitute an invalid exercise of delegated legislative authority?

   
   

2. Whether the economic impact statement accompanying the proposed amendments to Chapter 17-761, Florida Administrative Code, was adequate?

   
   

3. Whether the Department of Environmental Regulation properly considered the impacts of the proposed amendments to Chapter 17-761, Florida Administrative Code, on small and minority business pursuant to Sections 120.54(2)(a) and (3)(b), Florida Statutes?

PRELIMINARY STATEMENT

The Respondent, the Department of Environmental Regulation (hereinafter referred to as the "Department"), caused a notice of rule making to amend Rule 17-761, Florida Administrative Code, to be published in Volume 17, Number 6, pp. 559-562, Florida Administrative Weekly. The proposed amendments were adopted at a public hearing before the Environmental Regulation Commission on March 14, 1991.

On March 1, 1991, the Petitioner, the Florida Petroleum Marketers Association (hereinafter referred to as "FPMA"), filed a Petition for Administrative Determination of the Invalidity of Proposed Rules challenging the proposed amendments to Chapter 17-761, Florida Administrative Code.

At the commencement of the formal hearing the parties filed a Joint Stipulation which contained stipulated facts. The stipulated facts have been incorporated into this Final Order.

The parties have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Department is an agency of the State of Florida. The Department is responsible for, among other things, regulating underground petroleum storage tank systems in the State of Florida. Chapter 376, Florida Statutes.

      
      

   2. FPMA is a voluntary, nonprofit trade association comprised of 190 voting members who sell and distribute petroleum products on a wholesale and retail basis in Florida. FPMA also includes nonvoting associate members who provide equipment and technical services to FPMA members.

      
      

   3. FPMA's members include entities which are "small businesses" (approximately 18 to 20%) within the meaning of Section 288.703(1), Florida Statutes, and/or who sell petroleum products to customers that store petroleum products and constitute "small businesses."

      
      

   4. A substantial number of FPMA's members also include owners and operators of petroleum storage facilities with bare steel tanks and/or with storage tanks that currently are not equipped with secondary containment.

      
      

   5. A substantial number of FPMA's members operate in rural areas.

      
      

   6. FPMA's purposes include providing representation before the Florida Legislature and agencies.

      
      

2. Background and History.

   
   

   1. The Water Quality Assurance Act, Chapter 83-310, Laws of Florida, was enacted by the Legislature in 1983. This Act gave the Department the authority to promulgate rules regulating the construction, maintenance, installation and removal of underground storage tanks. Section 376.303(1)(a), Florida Statutes.

      The Act also preempted local regulation of the prevention and removal of pollutant discharges unless a local ordinance had been adopted prior to September 1, 1984, or the local effort is approved by the Department. Section 376.317, Florida Statutes.

      
      

   2. Dade County, Florida, had adopted an Underground Storage Facilities Ordinance, Ordinance 83-108. Ordinance 83-108 imposed storage tank requirements depending on the location in Dade County relative to identified wellfield protection areas and zones of influence around potable well supplies. Ordinance 83-108 requires replacement of underground petroleum storage tanks by certain dates depending on when existing tanks were installed. The Ordinance also takes into account whether a tank is made of corrosion resistant materials. See proposed finding of fact 3 of the Petitioner's Proposed Final Order for some of the specific requirements of Ordinance 83-108.

      
      

   3. Dade County Ordinance 91-33 amended the requirements of Ordinance 83-

   108. Ordinance 91-33 requires secondary containment for new underground petroleum storage tanks installed in Dade County 180 days after the effective date of Ordinance 91-33 but does not require the replacement of existing single- walled tanks not located in a zone of influence or which are on property served by a public utility.

   
   

   1. Broward County, Florida, adopted Chapter 27-10, in May, 1984, regulating underground storage tanks. Chapter 27-10 contains less stringent requirements than those required by the rules at issue in this proceeding. See proposed finding of fact 5 of the Petitioner's Proposed Final Order for some of the specific requirements of Chapter 27-10.

      
      

   2. In May, 1984, the Department promulgated Chapter 17-61, Florida Administrative Code. These rules regulated underground (and aboveground) storage tanks on a statewide basis, with two exceptions (Dade and Broward Counties).

      
      

   3. Rule 17-61.060(2)(b), Florida Administrative Code, required that new underground storage tanks and piping be constructed of corrosion-resistant materials, and be installed with overfill protection and monitoring systems. This Rule also prohibited the use of new bare steel tanks and integral piping containing motor vehicle fuels.

      
      

   4. Rule 17-61.060(2)(c), Florida Administrative Code, required that existing underground storage tanks be retrofitted with monitoring systems and overfill protection beginning December 31, 1986, and ending December 31, 1989, depending on the age of the tank.

      
      

   5. Rule 17-61.060(2)(c) and (3), Florida Administrative Code, also required that existing bare steel underground tanks and piping be replaced with corrosion-resistant systems on a schedule beginning December 31, 1989, and ending December 31, 1998, depending on the age of the tank. As an alternative, bare steel tanks could be retrofitted with internal lining or cathodic protection, and bare piping could be retrofitted with cathodic protection. Rule 17-61.060(2)(b)-(c) and (3), Florida Administrative Code.

      
      

   6. In adopting Chapter 17-61, Florida Administrative Code, the Department exempted facilities which did not receive, store, or use more than 1,000 gallons in any calendar month or more than 10,000 gallons in any calendar year. Rule

      17-61.040(1), Florida Administrative Code. In adopting this exemption the Department indicated that "[v]ery small users are considered to pose a smaller

      risk and are not anticipated to contribute as significantly to contamination of groundwater across the state." The Department also indicated that the businesses being exempted included agricultural businesses, small businesses and other commercial activities and governmental installations. Finally, the Department indicated that it had developed the retrofitting schedules to allow for the exhaustion of the useful life of existing systems.

      
      

   7. In October, 1985, Alachua County, Florida, filed a petition with the Department for approval of its local storage tank ordinances, Ordinances 85-7 and 85-13. Alachua County required secondary containment for underground storage systems. The Department approved the ordinances conditioned upon Alachua County amending them to take into account concerns the Department expressed concerning the ordinances. In particular, the Department questioned whether Alachua County should require secondary containment for all of the County without taking into account the differences in the groundwater throughout the County. The Department also questioned the schedule for requiring secondary containment. For more specific complaints raised by the Department see proposed finding of fact 8 of the Petitioner's Proposed Final Order.

      
      

   8. Alachua County subsequently adopted a new storage tank ordinance, Ordinance 87-10. Ordinance 87-10 required secondary containment for new facilities and extended the retrofit schedule for existing facilities. The extended schedule took into account to hydrogeology of the location of the storage tank and the proximity to public water supply wells. Existing corrosion-resistent tanks were allowed twenty years from installation if overfill protection and leak detection were installed.

      
      

   9. Congress banned the installation of most new bare steel storage tanks. They were banned by the Resource Conservation and Recovery Act. The United States Environmental Protection Agency (hereinafter referred to as the "EPA"), was ordered to adopt regulations governing underground storage tanks.

      
      

   10. On September 28, 1988, the EPA promulgated 40 CFR 280. These regulations required, among other things, that: new underground storage tanks be constructed of corrosion-resistant materials; existing bare steel tanks must be upgraded by December 22, 1990; and, existing tanks may be replaced by corrosion- resistant materials, may be internally lined or protected by cathodic protection. The EPA also promulgated 40 CFR 281, authorizing the approval by the EPA of state storage tank programs which are no less stringent that the EPA's requirements.

       
       

   11. On June 8, 1990, the Environmental Regulation Commission adopted Chapter 17-761, Florida Administrative Code. These rules, which were adopted to bring Florida's storage tank program into compliance with the regulations adopted by the EPA in 1988, imposed new construction requirements on underground storage systems.

       
       

   12. In light of the fact that some of the requirements of Chapter 17-761, Florida Administrative Code, were more stringent than those imposed by the EPA, the Governor and Cabinet were required by Section 403.804, Florida Statutes, to approve the rules. On October 9, 1990, the Governor and Cabinet considered the new rules. ManaSota-88, Inc., appeared at the meeting and requested that the Governor and Cabinet limit the definition of secondary containment to double- walled tanks and piping, and to move up the date requiring secondary containment for the installation of new and replacement tanks from December 31, 1998, to December, 1990. The Governor and Cabinet approved Chapter 17-761, Florida Administrative Code (hereinafter referred to as the "Existing Rules"), and

       "recommended" that the Environmental Regulation Commission "review" ManaSota-88, Inc.'s, recommendations.

       
       

   13. On January 10, 1991, the Department held a public workshop before the Environmental Regulation Commission to receive public comment on several alternative changes to the Existing Rules developed as a result of ManaSota-88, Inc.'s, suggestions to the Governor and Cabinet. New information concerning the environmental or technological necessity of amending the Existing Rules was not provided at the workshop.

       
       

   14. On February 8, 1991, the Department caused notice of rule making to be published in Volume 17, Number 16, Florida Administrative Code, amending the Existing Rules (the proposed amendments will hereinafter be referred to as the "Proposed Amendments").

       
       

   15. On March 1, 1991, FPMA filed a Petition to Determine Invalidity of Proposed Rules challenging the validity of the Proposed Amendments.

       
       

   16. On March 14, 1991, the Environmental Regulation Commission, following a public hearing, adopted the Proposed Amendments with certain changes not relevant to this proceeding. Members of the FPMA testified at the public hearing.

       
       

3. The Requirements of the Existing Rules and the Changes Thereto of the Proposed Amendments.

   
   

   1. Generally, the Existing Rules require owners and operators of underground vehicular fuel storage tanks to upgrade their underground storage tank systems to include secondary containment according to a schedule which takes into account the date of installation of an existing storage tank or whether the tank is a new storage tank.

      
      

   2. "Secondary containment" under the Existing Rules is defined as a system used to improve release detection and release prevention and includes double-walled tanks, double-walled integral piping systems or a single-walled tank or integral piping system protected by an outside liner. For petroleum storage systems, secondary containment consists of a primary container composed of fiberglass or steel. The primary container is surrounded by an outer wall or liner.

      
      

   3. New Underground Storage Tanks.

      
      

      1. Under the Existing Rules new underground storage tanks (other than those used to store hazardous substances) installed between December 10, 1990, and December 31, 1998, may be single-walled tanks if they are corrosion- resistant.

         
         

      2. A storage tank is considered to be corrosion-resistant under the Existing Rules if it is a single-walled fiberglass tank, a tank with an internal lining or a tank with cathodic protection.

         
         

      3. New underground storage tanks installed after December 31, 1998, must be constructed with secondary containment under the Existing Rules.

         
         

      4. Under the Existing Rules, any new underground storage tank installed as a replacement for an underground storage tank during the existing life of the tank could be a single-walled tank if it was corrosion-resistant.

      5. The Existing Rules also provide that new storage tanks may not be installed within 50 feet of an existing potable water supply well. Secondary containment must be installed for any new, upgraded or replacement tank located within 300 feet of an existing private, public or noncommunity water supply system. These requirements were not changed by the Proposed Amendments.

         
         

      6. Under the Proposed Amendments, all new underground storage tanks installed after December 31, 1991, must be installed with secondary containment. New tanks that are corrosion resistant are not allowed under the Proposed Amendments.

         
         

      7. Replacement tanks under the Proposed Amendments also must be installed with secondary containment.

      
      

   4. Existing Underground Storage Tanks.

      
      

      1. Existing single-walled underground storage tanks must be replaced with secondary containment under the Existing Rules by certain dates, which depend on whether the existing tank has corrosion protection. The replacement dates recognize the useful life of the existing tanks being replaced.

         
         

      2. Under the Existing Rules, an existing underground storage tank was to be upgraded with an internal lining if the integrity of the tank is assured, it is tightness tested and it otherwise meets applicable standards. As an alternative, an existing tank was to be upgraded with cathodic protection if the structural integrity of the tank is certified after inspection and the tank is tightness tested. Finally, an existing tank could be upgraded with a combination of internal lining and cathodic protection.

         
         

      3. Cathodic protection is a device that utilizes an electrochemical process to protect the external surface of a metal tank against corrosion.

         
         

      4. Depending on the useful life of an existing underground storage tank, the Existing Rules require that existing tanks that were corrosion resistant or internally lined be replaced with secondary containment by December 31, 2012, 2015 or 2018.

         
         

      5. Existing underground storage tanks which are upgraded with cathodic protection must be replaced with secondary containment under the Existing Rules by December 31, 1989.

         
         

      6. Pursuant to the Proposed Amendments, existing steel tanks that have not been lined or that do not have cathodic protection prior to December 31, 1991, must be replaced with secondary containment by December 31, 1992, 1995 or 1998, depending on the age of the tank.

         
         

      7. Existing underground storage tanks that are made of corrosion resistent materials, that have been lined or that were initially installed with cathodic protection prior to December 31, 1991, must be replaced with secondary containment by December 31, 2009, under the Proposed Amendments. Existing tanks with field-installed cathodic protection must be replaced with secondary containment, depending on the age of the tank, by December 31, 1992, 1995 or 1998, under the Proposed Amendments.

      
      

   5. Under the Existing Rules and the Proposed Amendments, underground petroleum storage tanks are ultimately required to be installed with secondary

      containment. The Existing Rules allow the use of alternative forms of protection (corrosion resistant single-walled tanks, liners and/or cathodic protection) during a period of time beginning on the effective date of the Existing Rules and ending December 31, 2018. The Proposed Amendments substantially speed up the time schedule for secondary containment. The alternative forms of protection allowed under the Existing Rules may still be used, but only if installed before December 31, 1991.

      
      

4. Justification for the Proposed Amendments.

   
   

   1. Petroleum storage systems, including underground storage tanks, can and do leak petroleum for a number of reasons, including failure of tanks and lines.

      
      

   2. There are 2,295 permitted petroleum storage facilities in Dade County. Of these facilities, approximately 1,614, or just over 70%, have petroleum contamination.

      
      

   3. The Dade County Department of Environmental Resources Management conducted a study of the cause of the petroleum contamination at 50 randomly selected permitted petroleum storage facilities. Based upon a review of these

      50 sites, the source of contamination at 13 of the sites (26%) was discernible. The source of contamination at the other 37 sites could not be determined.

      
      

   4. Of the 13 sites for which the Dade County Department of Environmental Resources Management was able to determine the source of contamination, tank failures were identified as the source of contamination at 10 of the sites (20% of the total sites reviewed) and lines were the source of contamination at the other 3 sites. Five of the tank failures involved bare steel tanks, one involved a fiberglass coated steel tank, two were fiberglass tanks and one was a fiberglass tank with a liner. None of the 13 tank failures were attributable to double-walled steel or double-walled fiberglass tanks.

      
      

   5. There are in excess of 10,000 petroleum contamination sites located throughout the State of Florida that have been reported to the Department. These sites have been ranked by the Department based on fire and explosion hazards and the proximity of the contamination sites to drinking water wells.

      
      

   6. Some of the contamination sites reported to the Department for cleanup have been caused by leaking underground petroleum storage tanks.

      
      

   7. The Department's petroleum contamination cleanup standards are based on whether groundwater is considered to be of G-II quality. A G-II classification for groundwater includes all groundwater in aquifers suitable for potable water use. Such aquifers are considered to have a total dissolved solids content of less than 10,000 mg/1.

      
      

   8. Groundwater in Florida of G-II quality includes groundwater in both the surficial aquifers and the Floridan aquifer. The Department considers the quality of water in any aquifer that will produce water as having potential resource value regardless of whether it is currently used for potable drinking water. Therefore, contamination in such aquifers must be cleaned up to G-II quality.

      
      

   9. Petroleum contamination in Florida has affected every aquifer of G-II quality in the State.

   10. Ninety-two percent of Florida's drinking water is provided by groundwater.

       
       

   11. The Inland Protection Trust Fund was created in October, 1986, to provide funds for the cleanup of petroleum contamination (benzine) sites in Florida. Since that time, the Department has spent approximately $1,600,000.00 for the restoration and replacement of petroleum contaminated potable drinking water.

       
       

   12. Since October, 1986, 225 water supply wells (public and private) in Florida have been contaminated with benzine to the extent that action was necessary to correct the contamination. Eight of the 225 wells were used for municipal water. These 8 wells have been restored or replaced.

       
       

   13. Approximately 44 potable drinking water wells serving mobile homes, restaurants and service stations, (or noncommunity public water systems), and

       143 private wells have been contaminated with petroleum and have been restored or replaced.

       
       

   14. Use of secondary containment systems of storing petroleum allows monitoring of the interstitial space between the primary container and the secondary external barrier of the storage tank. Interstitial monitoring methods include: (a) placing a probe inside the space which detects and responds to the product stored or vapors therefrom; (b) filling the space with liquid and monitoring the level of the liquid; and (c) creating and monitoring a vacuum in the space, which allows monitoring of both walls.

       
       

   15. There is a high probability that the use of secondary containment will facilitate the detection of petroleum leaks in a storage tank before the petroleum escapes the secondary containment into the environment.

       
       

   16. Interstitial monitoring in a secondary containment system greatly reduces the number of factors which can interfere with petroleum leak detection. For example, interstitial monitoring provides an opportunity to distinguish new leaks from existing contamination.

       
       

   17. Secondary containment represents the best underground petroleum storage tank technology currently available.

       
       

   18. Leak detection for a single-walled tank provides detection of a leak of petroleum contamination after the contamination has entered the environment.

       
       

   19. Double-walled secondary containment tanks are stronger than single- walled tanks. Therefore, double-walled tanks are less prone to flex and, consequently, are less prone to crack than a single-walled tank. Each wall of a double-walled tank provides protection from physical damage for the other wall not provided in single-walled tanks.

       
       

   20. Cathodic protection provides protection from external corrosion of metal storage tanks. It does not, however, provide leak detection in the manner that secondary containment does.

       
       

   21. Cathodic protection systems are generally not warranted because their effectiveness depends on the operation and maintenance of the system by the tank owner.

   22. Internal linings are used for either preventive maintenance or to repair existing underground storage systems. Internal linings do not prevent external corrosion unless cathodic protection is also provided.

       
       

   23. Internal linings provide a barrier to petroleum release.

       
       

   24. Internal linings extend the life of a storage tank system for at least

       10 years. If the tank is also cathodically protected, the life of the tank is warranted for 20 years.

       
       

   25. Internal linings do not provide leak detection in the manner that secondary containment does.

       
       

5. The Proposed Amendments Represent a Change in Policy.

   
   

   1. The record of the process of developing and adopting the Existing Rules indicates that the alternative forms of protection (use of corrosion- resistent tanks, internal linings and cathodic protection) included in the Existing Rules afford some protection to Florida's groundwater from petroleum contamination.

      
      

   2. In proposing the Existing Rules the Department supported the provisions of the Existing Rules concerning the use of alternative forms of protection and the schedules for implementing the use of secondary containment contained therein.

      
      

   3. At the time that the Existing Rules were presented to the Governor and Cabinet, the Department did not recommend that secondary containment be required in the manner that it has now provided for under the Proposed Amendments.

      
      

   4. In adopting the Proposed Amendments, the Department has not developed or obtained any additional information in support of the Proposed Amendments. Nor did ManaSota 88, Inc., provide any such information.

      
      

   5. The reason why the Department initiated the process of adopting the Proposed Amendments was that the Governor and Cabinet directed the Department to consider whether changes to the Existing Rules were needed.

      
      

   6. The foregoing findings of fact do not support a finding that the Proposed Amendments are arbitrary and capricious. At best, the record of the process of developing and adopting the Existing Rules and the requirements of the Existing Rules prove that a policy decision was made by the Department that the requirements of the Existing Rules were an acceptable method of dealing with petroleum contamination from underground storage tanks in Florida. The fact that the policy decision evidenced in the Existing Rules was made, however, does not prove that a policy decision to require the use of other methods of protection, i.e., secondary containment, is arbitrary and capricious.

      
      

   7. The record of the adoption of the Existing Rules does raise some question as to the propriety of adopting the more stringent requirements of the Proposed Amendments. That record, however, also adds support to the policy decision to adopt the more stringent requirements. First, although the Department accepted the use of alternative forms of protection when the Existing Rules were adopted, it still evidenced a policy decision that secondary containment is the preferred method of protecting Florida's waters. Additionally, the acceptance by the Governor and Cabinet of the policy decision

      evidenced in the Existing Rules was conditioned on a reconsideration of the use of the alternative forms of protection (at least for new tanks) which evidenced a willingness on the part of the Governor and Cabinet to make policy decisions which would more stringently protect Florida's waters.

      
      

   8. Although it is true that the Alachua, Broward and Dade County ordinances and the EPA's regulations are less stringent than the Proposed Amendments, these laws also support the use of secondary containment as the preferred method of protecting the environment from contamination from underground petroleum storage tanks.

      
      

   9. The evidence proved that there a range of methods available to provide varying degrees of protection to Florida's waters. The use of corrosion- resistant tanks, internal linings and/or cathodic protection provides better protection to Florida's waters than bare steel underground storage tanks. Therefore, these methods of protection are within the range of acceptable methods of protecting Florida's waters. The evidence also proved, however, that secondary containment is not only within the range of acceptable methods of providing protection to Florida's waters, but that it is the best method currently available.

      
      

   10. The evidence failed to prove that the policy decision of the Department evidenced in the Proposed Amendments is not within the range of reasonable methods of dealing with petroleum contamination of Florida's waters authorized and required by the Florida Legislature. Therefore, the decision to require the use of secondary containment of the Proposed Amendments is not arbitrary and capricious.

       
       

6. The Economic Impact Statement and the Economic and Environmental Impact Statement.

   
   

   1. The Department, as required by Section 120.54(2), Florida Statutes, prepared an economic impact statement (hereafter referred to as the "EIS"), for the Proposed Amendments. The EIS was prepared by Clyde Diao, the Department's expert in environmental economics.

      
      

   2. The Department, as required by Section 403.804(2), Florida Statutes, also prepared an Economic and Environmental Impact Statement (hereinafter referred to as the "EEIS"). The EEIS consisted of a study of the economic impact of the Proposed Amendments and included the costs and benefits to the public of the Proposed Amendments. Dr. Diao also prepared the EEIS.

      
      

   3. The EIS and EEIS contain identical information, except that the EEIS also contains an analysis of the environmental impact of the Proposed Amendments. The following findings of fact only refer the EIS. To the extent relevant to this proceeding, the findings of fact concerning the EIS also apply to the EEIS except to the extent indicated otherwise.

      
      

   4. It is estimated in the EIS that the additional costs the Department may incur as a result of adopting the Proposed Amendments are expected to be minimal. The weight of the evidence failed to prove that this estimate impaired the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments.

      
      

   5. The following conclusions were included in the EIS concerning the impact of the Proposed Amendments on the installation of new underground storage tanks:

      1. It is recognized that the Proposed Amendments require that new tanks installed after December 31, 1991, have secondary containment instead of requiring secondary containment for new tanks installed after December 31, 1998, as provided under the Existing Rules.

         
         

      2. It is projected that even if new tanks were not required to have secondary containment until after December 1998, "investors intending to install underground storage tanks would most likely prefer to install secondary containment right away because it is more economical in the long run." In making this projection the Department recognized that "the immediate economic impact of having secondary containment might be greater than installing tanks with no secondary containment, . . ." but concluded that "long-run cost would likely be lower."

         
         

      3. In concluding that the long-run cost would be lower, the Department considered the difference in the cost of installing a tank with secondary containment with the cost of installing single-walled fiberglass tanks and steel tanks with cathodic protection. The Department estimated that the additional cost would be "in the range of 13.5% to 46.8% depending upon the type of tank used. . . ." It is pointed out that this additional cost, however, will "be a onetime expense to the facilities since they don't have to replace the double- walled tanks anymore."

         
         

      4. The Department, in concluding that the long-run cost would be lower, also relied upon its conclusion that insurance and monitoring cost associated with tanks installed with secondary containment would be lower in the long-run. The EIS indicates that the cost of insurance for a double-walled tank or a tank with a liner beneath it is about $200.00 per year as compared with $560.00 per year for a tank with no secondary containment. The EIS also indicates that the cost of groundwater monitoring wells or vapor monitoring devices of approximately $8,500.00 will be avoided by using tanks with secondary containment which will be required to have an interstitial monitoring device which cost approximately $1,000.00.

         
         

      5. Finally, the Department took into account the additional cost of ultimately replacing new underground storage tanks installed without secondary containment which will be incurred under the Existing Rules or the Proposed Amendments if secondary containment is not provided immediately in reaching its conclusion that it will be cheaper in the long-run to install new tanks with secondary containment.

         
         

      6. The Department included a cost comparison of the long-run cost of installing tanks with and without secondary containment in Annex I and Annex II to the EIS.

         
         

      7. Finally, the Department made the following finding in the EIS concerning the installation of new tanks:

         
         

         The only problem with requiring secondary containment by the end of 1991 instead of 1998 is that it gives the new underground storage tank owners a shorter period of time to generate the funds to install secondary containment. Smaller firms with lower financial leverage might have difficulty obtaining additional funds necessary to cover

         the incremental costs. This new requirement could have adverse effects on smaller gas stations that are already planned to be constructed in rural or remote areas where the market is very limited.

         
         

      8. The weight of the evidence failed to prove that these estimates impaired the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments.

      
      

   6. The Department did not make any specific findings in the EIS concerning the additional cost for new tanks which will be incurred in the short-term because of the acceleration of the date for which secondary containment will be required under the Proposed Amendments. See however, finding of fact 70.b., and 75.c., supra.

      
      

   7. The following conclusions were included in the EIS concerning the impact of the Proposed Amendments on existing tanks:

      
      

      1. The Department recognizes that "[t]he proposed requirements for existing underground storage tanks could have adverse economic impacts on some facilities, especially those with no corrosion protection and which were installed in 1981-1984 period." In reaching this conclusion, the Department recognized that owners of these tanks would not be able to "recoup their investments before the economic life of the tanks is reached." The Department's conclusion concerning the inability of facilities to recoup the useful life of existing underground storage tanks reasonably applies to almost all existing tanks.

         
         

      2. The Department recognized that approximately 731 of the owners of existing tanks (2,193 total tanks) constructed during the periods 1970-1975 and 1976-1980 will have to install secondary containment by 1992, and approximately 926 of such owners (2,778 total tanks) will have to install secondary containment by 1995, under the Proposed Amendments instead of the years 2012 and 2015, respectively, under the Existing Rules. These dates are extended to the year 2009 if corrosion protection is installed by December 31, 1991. The EIS indicates that the cost of adding corrosion protection is $2,500.00 to $4,000.00 per tank ($7,500.00 to $12,000.00 for a three tank facility).

         
         

      3. The EIS indicates that existing tank owners who do not install corrosion protection before December 31, 1991, "might experience economic hardship." The EIS estimates that, for "a typical facility with three tanks having a capacity of 10,000 gallons per tank, the replacement cost could be very high ranging from $101,500 to $107,000." This cost is compared to the $4,500.00 cost of adding internal lining or cathodic protection to an existing tank. The total cost of providing secondary containment for existing retailers is estimated to "range from $75 million to $79 million in 1992 and $94 million to

         $100 million in 1995." The EIS indicates the total cost could be higher if inflation is taken into account. Based upon these findings, the Department indicates in the EIS that "this could have some adverse economic impacts on some facilities which are currently struggling to survive under present economic conditions but are hoping to improve their business operations in the future."

         
         

      4. The Department recognizes that large suppliers will not experience the same difficulties as smaller facilities because of existing resources and the ability to pass on the additional costs to individual dealers.

      5. The Department also recognizes in the EIS that:

      
      

      smaller firms (gas stations) which are the recipient of this price hike could experience heavy financial strain. Since they operate in a highly competitive industry, they cannot just pass on any increase in the price of their products to the consumers without losing a certain part of their market share. Existing small gas stations without corrosion protection operating in rural areas where the market is small, might really be hurt financially by adoption of the proposed revisions. . . .

      
      

   8. The Department did not specifically address the costs of, or specify the total cost expected to be incurred for, replacing existing tanks with secondary containment in 1998, including those with field installed cathodic protection. Nor did the EIS specifically address cost which may be incurred by non-retail facilities in complying with the Proposed Amendments.

      
      

   9. The discussion in the EIS of some of the cost associated with existing tanks are more equivocal than the discussions of those costs in some of the internal documents utilized by the Department. The uses of "could" and "might" as opposed to "will" and "likely" did not impair the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments.

      
      

   10. The following conclusions were included in the EIS concerning the impact on competition and employment of the Proposed Amendments:

       
       

       1. The EIS indicates that the Proposed Amendments "might have some impacts on competition among existing underground storage tank owners and operators." In particular, the EIS indicates that some facilities "would have to either partly operate or shutdown their business for a while until the construction is done." During the time that facilities are partly operating or shutdown the

          Department projects that other facilities would have a competitive advantage and that employment would be adversely impacted.

          
          

       2. The EIS also indicates that smaller gas stations would be competitively disadvantaged by larger facilities because of their limited capitalization. The EIS concludes that "[s]ome [smaller facilities] may encounter difficulty in complying with secondary containment requirements."

          
          

       3. The EIS also indicates that competition will be enhanced between sellers/manufacturers of secondary containment materials at a much earlier date because the demand for such materials would increase much earlier. This same conclusion is reached with regard to businesses providing installation services associated with secondary containment.

       
       

   11. The EIS does not specifically address some of the costs which smaller facilities may be expected to occur as a result of the competitive advantage larger facilities will probably have in the short-run as a result of the Proposed Amendments. The EIS does not specifically discuss the competitive disadvantage to facilities which must replace tanks in 1995 or 1998.

   12. The EIS does not discuss the effect on competition between providers and installers of cathodic protection, single-walled corrosion resistant tanks or tank liners.

       
       

   13. The following conclusions were included in the EIS concerning the economic and environmental benefits of the Proposed Amendments:

       
       

       1. The Department indicates that "the new requirements would enhance protection of human health as well as to ground water resources of the State."

          
          

       2. Recognizing that it is difficult to quantify the economic benefits of the Proposed Amendments, the EIS indicates that "it can be strongly argued that the benefits would outweigh the costs in the long-run." It is concluded that the Proposed Amendments will prevent health hazards and groundwater contamination instead of relying on remedial solutions. The Department estimates that it is more economical to the public and to facility owners and operators to prevent contamination than to clean up contamination. It is estimated that the average cost of cleanup is approximately $200,000.00 per site.

          
          

       3. The Department also estimates that there are 56,018 underground storage tanks in Florida. Of these tanks, it is estimated that 10,500 are leaking underground fuel tanks, some of which are causing groundwater contamination.

       The Department has also estimated that 2,500 to 2,600 potable wells in Florida have been contaminated by petroleum storage systems. Because the groundwater level in Florida is very close to the surface, the Department indicates that discharge from a leaking tank will easily travel into the groundwater. The Department concludes that the Proposed Amendments will increase the protection of groundwater from potential contamination.

       
       

   14. The evidence failed to prove what the exact number of potable wells in Florida that have been contaminated by petroleum leaks. The evidence also failed to prove how many of the known petroleum contamination sites are attributable to underground storage tank leaks as opposed to other sources of leaks, i.e., overfill or pipe leaks. The weight of the evidence, however, failed to prove that the conclusions of the Department concerning the benefits of the Proposed Amendments are not reasonable or are so misstated as to be unreliable.

       
       

   15. The conclusions reached by the Department in the EIS concerning the benefits of the Proposed Amendments are consistent with the Legislatures intent set out in Chapter 376, Florida Statutes.

       
       

   16. The Department never conducts an econometric study in preparation of economic impact statements for proposed rules. Nor did the Department prepare such a detailed study in preparing the EIS in this case. As a consequence, there were a number of items of cost or amounts of cost which the Department did not specifically include in the EIS. Taking all of the facts concerning the EIS as a whole, based upon the conclusion that most of the economic impacts of the Proposed Amendments are fairly obvious and based upon the expression of Legislative intent found in Chapter 376, Florida Statutes, it is concluded that the evidence failed to prove that the EIS was so inadequate as to have impaired the fairness of the process or the correctness of the Proposed Amendments.

7. Consideration of Small Businesses.

   
   

   1. In preparing the EIS, the Department assumed that a "small business" was any business with a net worth of $1,000,000.00 or less and which employed 25 or fewer employees.

      
      

   2. Small businesses in the petroleum industry often buy products from larger companies and are in competition with larger companies.

      
      

   3. It is recognized by the Department in several places in the EIS that small businesses will be adversely affected by the Proposed Amendments:

      
      

      1. It is recognized that small businesses will have difficulty raising capital and/or obtaining financing for the installation of secondary containment under the shorter time schedules of the Proposed Amendments;

         
         

      2. It is recognized that small businesses will have difficulty passing the cost of complying with the Proposed Amendments they incur on to consumers like larger facilities will likely be able to do;

         
         

      3. It is recognized that small businesses will be at a competitive disadvantage with larger facilities which are better able to obtain the funds necessary to pay the cost of complying with the Proposed Amendments; and

         
         

      4. It is recognized that rural facilities, which generally tend to be smaller facilities, will be adversely effected by the Proposed Amendments.

      
      

   4. The EIS does not specifically identify the number of small businesses which will be affected by the Proposed Amendments or the amount of additional cost small businesses can expect to incur.

      
      

   5. Although the majority of the cost which will be incurred by small businesses in complying with the Proposed Amendments will be the same as those for larger businesses, the effect on competition of small businesses will be greater. Therefore, the effect of the Proposed Rules will have somewhat of a disproportionate impact on small businesses. This impact, despite the Department's assertion in this case that there will be no disproportionate impact, is recognized in the EIS.

      
      

   6. As required by Section 120.54(2)(a), Florida Statutes, a number of options concerning secondary containment requirements with varying impacts on small businesses were considered at the Environmental Regulation Commission meeting of January 10, 1991. The express purpose of this meeting was to consider such options. The options specifically addressed during the meeting are set out in proposed findings of fact 98 and 99 of the Department's Recommended Final Order. Among the options obviously considered, are those which are contained in the Existing Rules which FPMA has argued should not be changed.

      
      

   7. Testimony was presented by representatives of the FPMA and others before the Environmental Regulation Commission at the January 10, 1991, meeting and at the March 14, 1991 public workshop concerning the impact of the Proposed Amendments on small businesses.

      
      

   8. The weight of the evidence failed to prove that the adverse impact on small businesses will be so great that the Department should have tiered the Proposed Amendments to reduce the impact on small businesses.

   9. The weight of the evidence failed to prove that small businesses do not contribute significantly to the problem the Proposed Amendments are designed to regulate.

      
      

   10. The Proposed Amendments do allow some flexibility by providing that facilities that provide the alternative forms of protection prior to December 31, 1991, need not provide secondary containment until after December 31, 1992, 1995, 1998 or 2009. Not all facilities will be able to take advantage of this flexibility because not all facilities can meet the December 31, 1991, deadline.

       
       

8. The Department of Commerce's Review of the Proposed Amendments.

1. The Department mailed a copy of the Proposed Amendments to the Department of Commerce, Bureau of Business Assistance, on February 8, 1991. A copy of the Proposed Amendments was logged into the Small and Minority Business Advocate's Office (hereinafter referred to as the "Advocate's Office") on February 12, 1991.

   
   

2. Between February 12, 1991, and February 15, 1991, Jonathan Elimimian, an economic legislative analyst in the Advocate's Office, received a copy of the Proposed Amendments from the Bureau of Business Assistance. The evidence failed to prove what happened to the copy of the Proposed Amendments logged into the Advocate's office on February 12, 1991.

   
   

3. Dr. Elimimian reviewed the Proposed Amendments and prepared two analyses. In his first analysis, he concluded that the economic impact on small and minority business "is very significant" and that:

   
   

   [m]ost importantly the existing small and minority businesses already operating underground storage tank systems will close their door to business because of economic hardships that might result form the proposed revised rule. To make the situation worst [sic] for small and minority businesses, the scheduled replacement of underground storage tanks shifted from the year 2012 to 12/31/95 makes it further difficult for small and minority underground storage tank owners to raise capital to carry out the expense involved in the changes and still be able to remain competitive or survive. The economic impact is direct and is not productive to small and minority businesses in the field.

   
   

   These findings are not inconsistent or different from the conclusions reached by the Department in the EIS.

   
   

4. The findings of Dr. Elimimian were not provided to the Department. Nor was any other correspondence sent to the Department by the Advocate's Office. Instead, as was the practice of the Advocate's Office prior to the employment of the current Small and Minority Business Advocate (hereinafter referred to as the "Advocate"), Dr. Elimimian's review was simply filed in the Advocate Office's files.

5. The weight of the evidence failed to prove that the Department failed to follow any of the procedural requirements of Section 120.54(3)(b), Florida Statutes, concerning the Advocate's Office. In light of the fact that the Advocate did not provide the Department with any comments, the Department did not fail to consider the Advocate's comments or take any action required under Section 120.54(3)(b), Florida Statutes.

   
   

6. The weight of the evidence failed to prove whether the Advocate had any "evidence and argument . . . [or] alternatives regarding the impact of the rule on small business" concerning the Proposed Amendments. The weight of the evidence also failed to prove that the Advocate had any "evidence and argument .

   . . [or] alternatives regarding the impact of the rule on small business" which was not considered by the Department, the Environmental Regulation Commission or the Governor and Cabinet. Therefore, the weight of the evidence failed to prove that the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments were impaired by the Advocate's failure to comment of the Proposed Amendments pursuant to Section 120.54(3)(b), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54(1), Florida Statutes (Supp. 1990).

   
   

   1. Standing.

      
      

8. Section 120.54(4)(a), Florida Statutes, provides, in pertinent part:

   
   

   Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated authority.

   
   

9. In order to prove that a person is "substantially affected", that person must prove that the proposed rule being challenged will cause that person to suffer an injury in fact and that the injury is one that is subject to protection by law. See Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983); and Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478, 482 (Fla. 2nd DCA 1981).

   
   

10. In order for an association to be considered substantially affected, the association must prove that (1) a substantial number of its members (not necessarily a majority) would otherwise have standing; (2) the interests sought to be protected are within the association's general scope of interest and activity; and (3) the claim asserted or the relief requested is appropriate for the association to receive on behalf of its members. See Farmworker Rights Organization, Inc., v. Department of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA 1982); and Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

11. Based upon the facts presented in this proceeding FPMA has demonstrated that it has standing to institute this proceeding under Section 120.54, Florida Statutes.

    
    

    1. Validity of the Proposed Amendments.

       
       

12. A substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an "invalid exercise of delegated authority." Section 120.54(4)(a), Florida Statutes. Section 120.52(8), Florida Statutes, defines an "invalid exercise of delegated legislative authority" as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed

       . . . rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious. [Emphasis added].

          
          

13. FPMA has argued that the Proposed Amendments constitute an invalid exercise of delegated authority under Sections 120.52(8)(a) and (e), Florida Statutes. The burden of proving FPMA's allegations was on FPMA. See Agrico Chemical, supra.

    
    

14. An arbitrary or capricious action has been defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported by facts or logic, or despotic.

    
    

    Agrico Chemical, supra at 763.

    
    

15. The authority relied upon by the Department in promulgating the Proposed Amendments is Section 376.303(1), Florida Statutes, which provides, in pertinent part:

    
    

    1. The department has the power and the duty to:

       1. 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 integral piping systems. Such rules may establish standards for underground facilities which store hazardous substances and pollutants . . . .

    
    

    Pursuant to this provision, the Legislature has indicated its intent that it expects the Department to carry out the intent of the Legislature expressed in Sections 376.30 through 376.319, Florida Statutes.

    
    

16. The pertinent Legislative intent the Department is given the responsibility to implement in Section 376.303(1)(a), Florida Statutes, found in Section 376.30(1)-(2), Florida Statutes, is as follows:

    
    

    1. The Legislature finds and declares:

       1. That certain lands and waters of Florida constitute unique and delicately balanced resources and that the protection of these resources is vital to the economy of this state;

       2. That the preservation of surface and ground waters is a matter of the highest urgency and priority, as these waters provide the primary source for potable water in this state; and

       3. That such use can only be served effectively by maintaining the quality of state waters in as close to a pristine condition as possible, taking into account multiple-use accommodations necessary to provide the broadest possible promotion of public and private interest.

    2. The Legislature further finds and declares that:

       1. The storage, transportation, and disposal of pollutants within the jurisdiction of the state and state waters is a hazardous undertaking;

       2. Spills, discharges, and escapes of pollutants that occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products pose threats of great danger and damage to the environment of the state, to citizens of the state, and to other interests deriving livelihood from the state;

       3. Such hazards have occurred in the past, are occurring now, and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical

          to the paramount interests of the state as set forth in this section; and

       4. Such state interests outweigh any economic burdens imposed by the Legislature upon those engaged in storing, transporting, or disposing of pollutants and related activities.

    
    

17. Section 376.30(3)(a), Florida Statutes, further indicates that it is the intent of the Legislature:

    
    

    to exercise the police power of the state by conferring upon the Department of Environmental Regulation the power to:

    (a) Deal with the environmental and health hazards and threats of danger and damage posed by such storage, transportation, disposal,

    and related activities;

    . . . .

    
    

18. Based upon the foregoing, there is not question that the Department has been delegated the authority to adopt rules regulating the underground storage of pollutants in the State of Florida. There is also no question that the Proposed Amendments are intended to establish rules to implement the Legislature's intent as set out, supra.

    
    

19. The intent of Legislature the Department has been authorized to implement is very broad. Essentially, the Legislature has authorized the Department to take whatever steps are necessary to protect the waters of the State of Florida from pollution from underground petroleum storage facilities. The protection of the waters of the state is declared to be "a matter of the highest urgency and priority, as these waters provide the primary source for potable water in this state . . . ." Section 376.30(1)(b), Florida Statutes.

    
    

20. The Legislature has also specifically indicated that the storage of pollutants in the state is a "hazardous undertaking", that this undertaking "pose[s] threats of great danger and damage to the environment of the state, to citizens . . . and to other interests . . ." and that the hazards of such storage are "inimical to the paramount interest of the state . . . ." Section 376.30(2), Florida Statutes. In order to protect these declared State interests, the Legislature specifically declared that these interests "outweigh any economic burdens imposed by the Legislature upon those engaged in storing, transporting, or disposing of pollutants and related activities." Section 376.30(2)(d), Florida Statutes. The economic burden referred to by the Legislature is the burden it has imposed by providing that the Department was to regulate the storage of petroleum in order to protect the waters of the State and not just economic burdens imposed directly be statute.

    
    

21. Based upon the foregoing, it is concluded that the Legislature has indicated its intent that the Department adopt rules governing the storage of petroleum in order to protect the waters of the State virtually without regard to the economic burden which may result from such rules. The authority granted to the Department allows the Department to adopt rules requiring the best possible protection to the waters of the State from pollution from underground petroleum storage facilities. The Proposed Amendments carry out this delegated authority.

22. At best FPMA has proven in this proceeding that there may be other methods of providing some protection to the waters of the State that are less costly in the short-term. That is not what FPMA was required to prove in order to prevail. FPMA was required to prove that the method of carrying out the intent of the Legislature expressed in Chapter 376, Florida Statutes, chosen by the Department in the Proposed Amendments was chosen without thought or reason or irrationally, or that the Department's choice is not supported by facts or logic, or is despotic. FPMA has failed to provide such proof.

    
    

23. FPMA has not attempted to argue that secondary containment is not an acceptable method of dealing with the problem the Legislature authorized the Department to correct. In light of the fact that the Existing Rules, all of the local ordinances testified about in this proceeding, and the EPA's regulations also require secondary containment, such an argument would not have prevailed.

    
    

24. What FPMA has argued is that the Department has acted arbitrarily and capriciously by substituting the accelerated implementation schedule of the Proposed Amendments for the "long-term policy goal of the State" evidenced by the schedule of implementation contained in the Existing Rules. See page 46 of FPMA's Proposed Final Order. FPMA's characterization of the Existing Rules as a "policy goal of the State" is correct. That is all, however, that the Existing Rules represent--a policy choice of the State. Therefore, the adoption of the Existing Rules only proves that a policy decision was made when the Existing Rules were adopted to carry out the intent of the Legislature in the manner provided for in the Existing Rules. That policy choice was to carry out the intent of the Legislature in the manner provided for in the Existing Rules. The fact that a policy choice was made when the Existing Rules were adopted does not mean that a change in that policy choice is arbitrary and capricious.

    
    

25. The adoption of the Proposed Amendments simply represent a different "policy goal of the State"; one that the Department made after being directed by the Governor and Cabinet to reconsider the original policy decision of the State. In order to conclude that the policy decision evidenced by the Proposed Amendments is arbitrary and capricious, FPMA was required to prove that the policy evidenced in the Proposed Amendments is outside of the authority delegated to the Department. In light of the Legislative intent evidenced in Sections 376.30 through 376.319, Florida Statutes, it is concluded that FPMA failed to meet its burden of proof.

    
    

    1. The EIS and EEIS.

       
       

26. Section 120.54(2)(b), Florida Statutes, requires that an agency provide "information on its proposed action by preparing a detailed economic impact statement." Section 403.804(2), Florida Statutes, requires that the Department "have a study conducted of the economic and environmental impact which sets forth the benefits and costs to the public of any proposed standard that would be stricter or more stringent than one which has been set by federal agencies . . . ." FPMA has in effect argued that the Department has failed to follow the rulemaking requirements of Sections 120.54(b) and 403.804(2), Florida Statutes, because of the inadequacies of the EIS and EEIS the Department provided with the Proposed Amendments. Therefore, FPMA has argued that the Proposed Amendments constitute an invalid exercise of delegated legislative authority under Section 120.52(8)(a), Florida Statutes.

    
    

27. The evidence presented by FPMA proved that the EIS and EEIS did not deal with every detail of the cost and benefits of the Proposed Amendments. The evidence did not, however, prove that the inadequacies of the EIS and EEIS were

    so great as to impair the fairness of the proceeding or the correctness of the action. See Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985); and Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 1st DCA 1979). FPMA has, therefore, failed to prove that the Department has failed to follow the requirements of Section 120.54, Florida Statutes, in adopting the Proposed Amendments.

    
    

    1. Small Businesses.

       
       

28. Section 120.54(2)(a), Florida Statutes, requires that an agency, before amendment of any rule, must

    
    

    . . . consider the impact of such proposed action on small business as defined in the Florida Small and Minority Business Assistance Act of 1985 and, whenever possible, shall

    tier such rule to reduce disproportionate impacts on small business and to avoid regulating businesses which do not contribute significantly to the problem the rule is designed to regulate. . . .

    
    

    FPMA has in effect argued that the Department has failed to follow the rulemaking requirements of Section 120.54(2)(a), Florida Statutes. Therefore, FPMA has argued that the Proposed Amendments constitute an invalid exercise of delegated legislative authority under Section 120.52(8)(a), Florida Statutes.

    
    

29. FPMA has argued that the Department failed to comply with Section 120.54(2)(a), Florida Statutes, because it failed to consider the impact of the Proposed Amendments on small business. The weight of the evidence failed to support FPMA's argument.

    
    

30. FPMA has also argued that the Department failed to comply with Section 120.54(2)(a), Florida Statutes, because it failed to tier the Proposed Amendments to reduce the disproportionate impact on small business. Again, the weight of the evidence failed to prove that tiering was necessary or reasonable. FPMA failed to prove that the problems the Proposed Amendments are intended to address are caused any less by small business than other businesses. All that FPMA proved was that the Existing Rules impacted small business less harshly. Such proof, however, does not support a finding that the failure to provide tiering in the Proposed Amendments was contrary to the requirements of Section 120.54(2)(a), Florida Statutes.

    
    

    1. The Department of Commerce's Review.

    
    

31. Section 120.54(3)(b), Florida Statutes, requires an agency to provide written notice to the Advocate, among others, of a proposed rule amendment "[i]f the agency determines that the proposed action will affect small business . . .

    ." Section 120.54(3)(b), Florida Statutes, further provides:

    1. Within the 21-day period after written notice has been sent and the day on which the intended action is to take place, the agency shall give the Small and Minority Business Advocate . . . an opportunity to present evidence and argument and to offer alternatives regarding the impact of the rule on small business.

    2. Each agency shall adopt those alternatives offered pursuant to this subsection which it finds are feasible and consistent with the stated objectives of the proposed rule and which would reduce the impact on small business.

    . . . .

    
    

32. FPMA has in effect argued that the Department has failed to follow the rulemaking requirements of Section 120.54(3)(b), Florida Statutes. Therefore, FPMA has argued that the Proposed Amendments constitute an invalid exercise of delegated legislative authority under Section 120.52(8)(a), Florida Statutes.

    
    

33. In particular, FPMA has suggested that the Advocate's failure to comply with its duty under Section 120.54(3)(b), Florida Statutes, to comment on the Proposed Amendments constitutes a violation for which the Proposed Amendments should be declared invalid. There are several reasons for rejecting this argument. First, the weight of the evidence failed to prove that the Advocate did not receive adequate notice of the Proposed Amendments. Secondly, the Department complied fully with the requirements of Section 120.54(3)(b), Florida Statutes. The Department was under no obligation to insure that the Advocate was fulfilling its responsibility under the law. Thirdly, the weight of the evidence failed to prove what the Advocate's position is with regard to the Proposed Amendments. All that was proved was the position of an employee of the Advocate's Office. That employee's position should not be presumed to be the same as the Advocate's position. Finally, the weight of the evidence failed to prove that the reasonable concerns of the Advocate's employee were not known and considered by the Department and the Environmental Regulation Commission. Therefore, the Department and the Commission were not, as argued by FPMA, deprived of the Advocate's concerns about the impact of the Proposed Amendments on small business.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that FPMA's Petition for Administrative Determination of the

Invalidity of Proposed Rules is dismissed.

DONE and ENTERED this 22nd day of May, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

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 22nd day of May, 1991.

APPENDIX TO FINAL ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

FPMA's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 7.

1. Hereby accepted.

2. 8 and hereby accepted.

4 9.

5 10 and hereby accepted.

6 11-14.

7 15.

8 16 and hereby accepted.

9 17.

10 18-19.

11 20, 28-29 and hereby accepted.

12 20-21.

13 22.

14 23.

15 25.

16 24.

17 2.

18 6.

19 4.

20 3 and 5.

21 66-68.

22 28 and 70. The suggestions that the short term impact on small business "was not considered in the statement" and that "the statement ignores these short-term impacts" are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence.

23 29 and 72.

24 72. See 73.

1. 29. The last sentence is not supported by the weight of the evidence. The economic impact is discussed in a general sense.

2. Not supported by the weight of the evidence. See 74.

3. Hereby accepted, except the first sentence which is not supported by the weight of the evidence.

4. See 70 and 72 and hereby accepted.

5. All these proposed findings are generally correct, they are too broad and beyond what an economic impact statement should be expected to include.

6. Not relevant. The reliance on the findings of the EPA are misplaced. The EPA's findings are based upon data that is not specific to the State of Florida. The weight of the evidence failed to prove that the United States as a whole is sufficiently similar to the State of Florida to rely upon the EPA's data.

31-32 Not supported by the weight of the evidence.

33 The first two sentences and the last four sentences are not supported by the weight of the evidence. See 75-76 concerning the third sentence and 72 for the fourth sentence.

34 75 and 77.

1. Although generally true, the statement quoted is not inconsistent with the fact that not all small businesses will able to take advantage of the flexibility of the Proposed Amendments referred to.

2. 8-10, 16-17, 21 and 67. The third and seventh sentences are not supported by the weight of the evidence. The last sentence is irrelevant. The burden of proof in this case was on FPMA and not the Department.

3. 78-79. The second and the sixth through eighth sentences are not supported by the weight of the evidence. The last five sentences are not relevant.

4. Not relevant to this proceeding.

39 70, 72, 84 and 86.

40 See 86-90. The first sentence is not supported by the weight of the evidence.

41 15, 26, 28-30. But see 86-90.

42 91.

43 92-94.

1. 93. See 97. Not all of the findings of the Analyst were correct or relevant. To the extent that the Analyst was correct, his findings had been generally considered by the Department.

2. The weight of the evidence failed to prove that the conclusions reached by the Analyst were also those of the Advocate.

3. 95. The second through seventh sentences and the last two sentences are not relevant. The eighth sentence is not supported by the weight of the evidence.

4. Not supported by the weight of the evidence.

48 28.

49 26 and 29.

50 28-29.

51 28-29.

1. See 32-34. The weight of the evidence did not prove that the EPA study was the "definitive study." See discussion concerning proposed finding of fact 30.

2. Although generally correct see discussion concerning proposed finding of fact 30.

3. 53-54 and hereby accepted.

4. 29 and hereby accepted.

5. 29. Most of these proposed findings of fact are irrelevant or not supported by the weight of the evidence. Either party could have called the Department's "policymakers or in-house tank experts . . . ." No inference should be drawn by their absence.

6. 59 and hereby accepted. What the Department's tank expert believes and the lack of time to assess the Existing Rules is not relevant.

58 21 and 59.

1. 57. What constitutes a "political arena" was not proved.

2. Not supported by the weight of the evidence and not the test. The burden in this proceeding was on FPMA and not the Department.

3. See the discussion of proposed finding of fact 30.

62-63 Hereby accepted.

1. 21, 60 and hereby accepted. The second sentence is not relevant.

2. See 91.

3. See 54. The last sentence is not supported by the weight of the evidence.

4. Hereby accepted. The third sentence is not relevant. 60

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

William E. Williams, Esquire Robert D. Fingar, Esquire HUEY, GUILDAY, KUERSTEINER &

TUCKER, P.A.

106 East College Avenue, Suite 900 Post Office Box 1794

Tallahassee, Florida 32302

Janet E. Bowman

Assistant General Counsel Beth G. Lowery

Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

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

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Carol Browner, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-001357RP

Orders for Case No: 91-001357RP