STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STUART YACHT CLUB & MARINA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-1888RP

)

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on April 21, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William E. Guy, Jr., Esquire

55 East Ocean Boulevard Post Office Box 3386 Stuart, Florida 34995-3386

For Respondent: M.B. Adelson, IV, Esquire

Frank Cleveland, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

MS-35 Douglas Building Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent's proposed rules 16N- 16.009(3), 16.028, 16.032, 16.033, and 16.034, constitute an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This is a rule challenge brought under the provision of Section 120.54(4), Florida Statutes, to challenge the propriety of respondent's proposed amendments to Chapter 16N-16, Florida Administrative Code, which would implement legislation requiring a terminal spill prevention and response certificate, a terminal facility spill contingency plan, and a secondary response capability to clean up a 10,000 gallon pollutant discharge.

At hearing, petitioner called Robert J. Skidmore, the President of Stuart Yacht Club & Marina, Inc., and Gerald M. Ward, an expert in coastal construction and hydrographic engineering, as witnesses, and its exhibits 1-7 were received into evidence. Respondent called Donald Duden, Assistant Deputy Director for

the Department of Natural Resources, Marshal Mott-Smith, Administrator of the Storage Tank Section of the Department of Environmental Regulation, and Debra J. Preble, Administrator, Office of Coastal Protection, Department of Natural Resources, as witnesses, and its exhibits 1-6 were received into evidence subject to the limitations noted of record. Additionally, joint exhibit 1 was received into evidence.

The transcript of hearing was filed May 4, 1992, and the parties were granted leave until June 10, 1992, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this final order.

FINDINGS OF FACT

Background

1. Petitioner, Stuart Yacht Club & Marina, Inc., is a 100-slip full service marina located in Stuart, Florida, which offers for sale to the public, local and transient, fuel for their vessels. Petitioner's fueling facilities include a 10,000 gallon capacity diesel fuel tank and a 10,000 gallon capacity gasoline fuel tank, as well as three dispensers of each on its fuel dock. Although rated at 10,000 gallons, petitioner normally only stores a maximum of 6,500 gallons of diesel fuel in such tank, and pumps on average 20,000 gallons of fuel a month. 1/

   
   

2. The vessels that frequent petitioner's marina are primarily pleasure vessels with a fuel capacity under 10,000 gallons; however, the facility will accommodate, and has accommodated, large vessels with a fuel capacity of 10,000 gallons, but has never sold fuel to such vessels. In its four years of operation, its maximum fuel sale was 1,200 gallons to a 70-foot vessel.

   
   

3. Petitioner's fuel storage tanks are registered with the Department of Environmental Regulation (DER), as required by law, and its marine fueling facility meets DER standards. Such facility is routinely inspected by DER for compliance, and it carries the necessary insurance to provide evidence of financial responsibility to clean up fuel spills.

   
   

4. On March 6, 1992, the Department of Natural Resources (Department) published notice, inter alia, of proposed rules 16N-16.009(3), 16.028, 16.032,

   16.033 and 16.034, in volume 18, number 10, of the Florida Administrative Weekly. Essentially, such proposed rules would require a terminal facility, such as petitioner, to obtain a spill prevention and response certificate from the Department, prepare a spill prevention plan, and have available certain equipment which the Department found necessary to clean up a 10,000 gallon fuel spill.

   
   

5. By petition filed with the Division of Administrative Hearings on March 26, 1992, petitioner timely challenged the validity of such proposed rules as an invalid exercise of delegated legislative authority. The gravamen of petitioner's challenge was its contention that proposed rule 16N-16.028 was vague, that proposed rules 16N-16.009(3), 16.032, 16.033 and 16.034 enlarged, modified or contravened the specific provisions of law implemented, and that the Department materially failed to follow applicable rulemaking procedures by failing to adequately address the economic impact of the proposed rules and their effect on small businesses.

   
   

   Proposed Rule 16N-16.009(3)

6. Proposed rule 16N-16.009(3) defines the term "waterfront or offshore facility" for purposes of such rule chapter as follows:

   
   

   (3) "Waterfront or offshore facility" means any structure, group of structures, motor vehicle, rolling stock, pipeline, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, or processing pollutants, provided such pollutants are transported either over, under, or across any water, estuaries, tidal flats, beaches, or waterfront lands adjoining the seacoast of the state seaward of the department's jurisdictional boundary line as set forth in 16N-

   16.028. . . . (Emphasis added)

   
   

   Here, petitioner contends that such definition is at variance from the statutory definition of "terminal facility," and therefore improper. Such contention has merit.

   
   

7. Section 376.031(17), Florida Statutes, defines a "terminal facility" as follows:

   
   

   (17) "Terminal facility" means any waterfront or offshore facility of any kind, other than vessels not owned or operated by such facility, and directly associated waterfront or offshore appurtenances including pipelines located on land, including submerged lands, or on or under the surface of any kind of water, which facility and related appurtenances are used or capable of being used for the purpose of drilling for, pumping, storing, handling, transferring, processing, or refining pollutants, including, but not limited to, any such facility and related appurtenances owned or operated by a public utility or a governmental or quasi-governmental body. A vessel shall be considered a terminal facility only in the event of a ship-to-ship transfer of pollutants, and only that vessel going to or coming from the place of transfer and the terminal facility. For the purposes of ss. 376.011-376.21, the term "terminal facility" shall not be construed to include waterfront facilities owned and operated by governmental entities acting as agents of public convenience for operators engaged in the drilling for or pumping, storing, handling, transferring, processing, or refining of pollutants; however, each operator engaged in the drilling for or pumping, storing, handling, transferring, processing, or refining of pollutants through a waterfront facility owned and operated by such a governmental entity shall be construed as a terminal facility. (Emphasis added)

   
   

8. Contrary to the statutory definition, the proposed rule omits from its definition of "waterfront or offshore facilities" those facilities used for "pumping" or "refining" pollutants, expands the definition by adding facilities used in "exploring for" pollutants, and exempts from its definition all vessels.

   Under such circumstances, the proposed rule enlarges, modifies and contravenes the provisions of section 376.031(17), the statute sought to be implemented.

   
   

   Proposed Rule 16N-16.028

   
   

9. Rule 16N-16.002, Florida Administrative Code, consistent with the provisions of Section 376.051(6), Florida Statutes, delineates the responsibility of the Department and DER to respond to pollutant spills as follows:

   
   

   1. The Department shall be the Lead State Agency in responding to all discharges of pollutants as defined in Rule 16N-16.009(2) which occur in coastal waters of the State seaward of the jurisdictional line delineated in Rule 16N-16.028.

   2. The Department of Environmental Regulation shall be the Lead State Agency in responding to all discharges of pollutants not specified in Rule 16N- 16.002(1). (Emphasis added)

      
      

10. Proposed Rule 16N-16.028, at issue in this proceeding, purports to delineate the Department's jurisdiction set forth in the foregoing rule provision. Such proposed rule is, however, so vague as to preclude a cartographer or land surveyor from graphically depicting its line, as well as so vague as to preclude those persons subject to the provisions of Sections 276.011

    - 376.21, Florida Statutes, and the Department's rules from reliably ascertaining the jurisdiction of the Department. Notably, proposed rule 16N- 16.022, which has not been challenged, provides that:

    
    

    . . . the "person-in-charge" of any terminal facility that suffers a pollutant discharge which enters or threatens to enter waters of the state within the jurisdiction of the department shall, within one hour of discovery of the discharge, notify the Florida Marine Patrol or the United States Coast Guard at the National Response Center. (Emphasis added)

    
    

    The provisions of that rule implement Section 376.12, Florida Statutes, which, at subsection 11, provides that failure to give immediate notice of such discharge to the Department or the Coast Guard constitutes a felony of the third degree.

    
    

    Proposed Rules 16N-16.032 and 16N-16.034

    
    

11. The specific authority for rulemaking identified in the published notice of proposed rules 16N-16.032 and 16N-16.034 is Section 376.07, Florida Statutes. That section provides:

    
    

    The department shall from time to time adopt, amend, repeal, and enforce reasonable rules insofar as they relate to discharge of pollutants into the waters of this state or onto the coasts of this state.

    * * *

    1. The department shall adopt rules including, but not limited to, the following matters:

       1. Operation and inspection requirements for spill prevention, abatement, and cleanup capabilities

    of terminal facilities, vessels, and other

    matters relating to certification under ss. 376.011 -

    376.21. . . .

    * * *

    1. Procedures, methods, means, and equipment to be used by persons subject to regulation by ss. 376.011 -

       376.21 in the removal of pollutants.

    2. Development and implementation of criteria and plans to meet pollution occurrences of various degrees and kinds.

    
    

12. Pertinent to this case, the Department identified the specific statutes implemented by such proposed rules as section 376.07, discussed supra, and section 376.065. The later section provides as follows:

    
    

    Operation of terminal facility without spill prevention and response certificate prohibited; penalty. --

    1. Every owner or operator of a terminal facility shall obtain a spill prevention and response certificate issued by the department. No certificate shall be valid for more than 1 year unless renewed by the department, and certificates shall expire on December 31 annually, subject to such terms and conditions as the department may determine are necessary to carry out the purposes of ss. 376.011- 376.21.

    2. Each applicant for a spill prevention and response certificate shall submit information, in a form satisfactory to the department, describing the following:

       1. The barrel or other measurement capacity of the terminal facility and the length of the largest vessel docking at or providing service from the terminal facility.

       2. All prevention, containment, and removal equipment, including, but not limited to, vehicles, vessels, pumps, skimmers, booms, chemicals, and communication devices to which the facility has access, whether through direct ownership or by contract or membership in an approved discharge cleanup organization.

       3. The terms of agreement and the operation plan of any discharge cleanup organization to which the owner or operator of the terminal facility belongs.

    3. No person shall operate or cause to be operated a terminal facility without access to minimum containment equipment measuring five times the length of the largest vessel docking at or the largest vessel providing service from the terminal facility, whichever is larger. The containment equipment shall be available to begin deployment on the water within 1 hour after discovery of a spill. Within a reasonable time period, additional cleanup equipment shall be available, either through direct ownership or by contract or membership in an approved cleanup organization, to reasonably clean up 10,000 gallons of pollutants, unless the terminal facility does not store

       or service vessels having the capacity to carry that quantity as fuel or cargo. Cleanup or containment equipment purchased with state funds shall not count as required equipment under this subsection. The requirements of this subsection shall not apply to terminal facilities which store only motor fuel or service only motor fuel to vessels. The requirements of this subsection shall not apply until January 1, 1992, to land-based terminal facilities with a storage capacity less than 30,000 gallons which store special fuel or service special fuel to vessels. For purposes of this subsection, "motor fuel" means gasoline, gasohol, and other mixtures of gasoline. For purposes of this subsection, "special fuel" means diesel fuel, alcohol, kerosene, or any light fuel, or combination thereof, other than motor fuel . . .

    4. Upon a showing of satisfactory containment and cleanup capability required by the department under this section, the applicant shall be issued a spill prevention and response certificate covering the terminal facility and related appurtenances, including vessels as defined in s. 376.031.

       
       

13. Proposed Rule 16N-16.032 provides as follows:

    
    

    Terminal Facility Spill Prevention and Response Certificates; Inspections.

    1. An owner or operator of a terminal facility shall provide to the department, the information required pursuant to section 376.065, F.S., for the issuance of a spill prevention and response certificate.

    2. The department shall inspect each terminal facility requiring a spill prevention and response certificate for the following purposes:

       1. Verify the information required to be provided by the applicant under section 376.065(2), F.S.

       2. Inspect and verify access to the containment and cleanup equipment under section 376.065(3), F.S.

       3. Review and verify the contents of the terminal facility site specific spill contingency plan to ensure it contains the minimum information required pursuant to 16N-16.033.

    3. For purposes of preparing a terminal facility spill contingency plan, a reasonable time for having additional cleanup equipment at the location of the discharge shall be presumed to be four hours after initial discovery of the discharge.

       
       

       And, proposed rule 16N-16.034, delineates the specific additional equipment the Department has determined necessary to reasonably clean up a 10,000 gallon pollutant discharge, as required by section 376.065(3).

       
       

14. Such rules are facially consistent with the Department's grant of rulemaking authority and the specific provisions of law implemented, and petitioner has presented no persuasive proof to otherwise question such consistency. Moreover, such rules are not vague, and petitioner has not questioned or demonstrated that the specific additional equipment delineated by

    the Department as necessary to clean up a 10,000 gallon pollutant discharge is not reasonable. 2/

    
    

    Proposed Rule 16N-16.033

    
    

15. Proposed rule 16N-16.033 requires an owner or operator of a terminal facility to have a spill contingency plan which, inter alia, details "the methods, means and equipment to be used in the removal of such pollutants in the event of a discharge which enters or threatens to enter waters of the state."

    
    

16. Pertinent to this case, the proposed rule, consistent with section 376.065(3), creates a distinction between the contingency plan for terminal facilities with a pollutant storage capacity of less than 10,000 gallons and those with a storage capacity of 10,000 gallons or greater. With regard to the terminal facilities with a storage capacity of 10,000 gallons or greater, their contingency plan must "list all spill containment or cleanup equipment at the terminal facility," provide for "a secondary cleanup response using additional cleanup equipment after initial deployment of containment boom," and detail "the procedure and responsibility for obtaining and transporting the additional cleanup equipment required by 16N-16.034, if the equipment is not stored on site." For terminal facilities with a storage capacity of less than 10,000 gallons, they are not required to provide for the secondary cleanup response or address the availability of the additional cleanup equipment required by proposed rule 16N-16.034.

    
    

17. Here, petitioner contends that the secondary cleanup response provisions of the proposed rule conflict with the provisions of Section 376.065(3), Florida Statutes, because they require terminal facilities with a storage capacity of 10,000 gallons or greater, as opposed to terminal facilities servicing vessels with a storage capacity of 10,000 gallons or greater, to comply with the secondary response capacity contemplated by section 376.065(3). Respondent disagrees with petitioner's contention.

    
    

18. The gravamen of the dispute between the parties concerning the propriety of the proposed rule is a disagreement as to the interpretation to be accorded the provisions of section 376.065(3) which require a terminal facility to have "additional cleanup equipment" under the following circumstances:

    
    

    . . . Within a reasonable time period, additional cleanup equipment shall be available . . . to reasonably clean up 10,000 gallons of pollutants, unless the terminal facility does not store or service vessels having the capacity to carry that quantity as fuel or cargo. (Emphasis added)

    
    

19. Petitioner contends that the foregoing provision refers only to vessel capacity, and would read the exemption to apply where "the terminal facility does not store [vessels] or service vessels having the capacity to carry that quantity [10,000 gallons of pollutants] as fuel or cargo," irrespective of the capacity of the facility. So read, proposed rule 16N-16.033 conflicts with the exemption provided by section 376.065(3).

    
    

20. Contrasted with petitioner's contention, the Department interprets such provision to refer to both facility capacity and vessel capacity, and would consider the exemption applicable only if "the terminal facility does not store

    . . . that quantity as fuel or cargo" and "the terminal facility does not . . .

    service vessels having the capacity to carry that quantity as fuel or cargo." So interpreted, the proposed rule is consistent with the exception.

    
    

21. While petitioner's interpretation may be a permissible interpretation of section 376.065(3), so is the Department's. Moreover, the Department's interpretation is consistent with the definition of "terminal facility," which includes a vessel in the case of a ship-to-ship transfer of pollutants [Section 376.031(17)]; the further provision of section 376.065(3) which delayed application of the "additional cleanup equipment" requirement until January 1, 1992, for "land-based terminal facilities with a storage capacity less than 30,000 gallons which store special fuel or service special fuel to vessels;" the Legislature's recognition that "spills, discharges, and escapes of pollutants occurring as a result of procedures involved in the transfer, storage and transportation of such products pose threats . . . to the environment" [Section 376.021(3)(a)]; and; the Legislature's delegation of authority to the Department to regulate those matters set forth in section 376.07, discussed supra. Under such circumstances, proposed rule 16N-16.033 is not inconsistent with the provisions of section 376.065(3).

    
    

    The economic impact statement

    
    

22. Pursuant to the mandate of Section 120.54(2), Florida Statutes, the Department prepared an economic impact statement for the proposed revisions to Chapter 16N-16, Florida Administrative Code. Such economic impact statement provided, in toto, as follows:

    
    

    ECONOMIC IMPACT STATEMENT:

    
    

    The estimated cost to the agency to implement the proposed rules is as follows:

    
    

    Public Meetings

    
    

    Printing $100

    Travel 10 people-trips @ $400 $4000 Postage and mailings $250

    
    

    Public Hearing

    Printing $500

    Travel 3 people-trips @ $400 $1200 Postage and mailings $500

    
    

    Agency Cost $6550

    
    

    The estimated first year cost to all affected parties is as follows:

    
    

    Contingency plan preparation

    900 @ $250 $2,250,000

    
    

    Increased fee for terminal facilities 200 @ $250 $50,000

    
    

    Ensuring equipment availability

    900 @ $1500 $1,350,000

    (contract, co-op, or purchase)

    Affected Party Cost $3,650,000

    
    

    It is not anticipated that these proposed rules will have any impact on small businesses as defined by the Small Business Act of 1985.

    
    

23. In estimating the economic impact to affected persons, the Department made three assumptions. First, that it only needed to account for the economic impact of the proposed rules, as opposed to the economic impact of complying with the statutory requirements. Second, that a terminal faced with complying with the rules would choose the most economical means available. Pertinent to this assumption, the statute allows compliance with the "additional cleanup equipment" requirement through direct ownership or by contract or membership in an approved cleanup organization. Third, that a small business would be a facility that had a storage capacity of less than 10,000 gallons of pollutants.

    
    

24. The Department's assumption that a small business would be a facility that had a storage capacity of less than 10,000 gallons of pollutants has no rational basis in fact. A small business, as defined by Section 288.703(1), Florida Statutes, is "an independently owned and operated business concern that employs 50 or fewer permanent full-time employees and that has a net worth of not more than $1 million." Here, petitioner was shown to be such an entity notwithstanding a storage capacity of 10,000 gallons of pollutants. Moreover, merely because a facility has a storage capacity of less than 10,000 gallons of pollutants does not, under the Department's interpretation of section 376.065(3), mean it will not be affected if it services vessels with the capacity to carry 10,000 gallons of pollutants as fuel or cargo. In sum, capacity bears no reasonable relationship to whether a terminal is or is not a small business, nor does capacity alone bear any reasonable relationship to whether such business will be financially affected by the matters implemented by the rules.

    
    

25. Regarding the economic impacts the Department did assess, which may also affect small businesses, the Department estimated an average cost of $2,500 for contingency plan preparation, $250 as an increased fee for some terminal facilities, and $1,500 to assure the availability of the "additional cleanup equipment." The cost estimate for contingency plan preparation, the propriety of the rule requirements concerning the content of such plans, and the increased fee for some terminal facilities, was not seriously disputed or shown to be unreasonable. The propriety of the Department's estimate of $1,500 to assure the availability of the "additional cleanup equipment" was, however, a subject of dispute.

    
    

26. The Department based its estimate of $1,500 to assure the availability of the "additional cleanup equipment" on its assumption that a terminal facility faced with complying with such requirement would choose the most economical means available. As heretofore noted, section 376.065(3) allows a facility to comply with such requirement through direct ownership or by contract or membership in an approved cleanup organization. The estimate derived here was based on the Department's conclusion that the most economical means available would be through contract, and such conclusion, as well as the cost estimate, was not shown to be unreasonable. 3/

    
    

27. In reaching the foregoing conclusion, petitioner's contention that approved cleanup organizations are not yet available to offer contractual services to all terminal facilities in the state and, therefore, some terminal facilities may be required to unite with others to form their own cleanup

    organization, with the attendant cost of purchasing the equipment, or purchase such equipment themselves, has not been overlooked. However, the requirement that such equipment be available, as well as the methods available for compliance, is a product of legislative mandate, not Department rule.

    Moreover, the options available in a particular geographic area of the state, or the option selected by a facility, are not matters within the Department's control or shown to be quantifiable.

    
    

28. Here, the only direct expense associated with the proposed rule, as opposed to the implementing legislation, occurs as a result of the actual designation of what specific equipment is required to meet the statutory requirement for additional equipment to clean up a 10,000 gallon pollutant discharge. The need for, or propriety of, the equipment designated by the Department was not, however, challenged or otherwise shown to be unreasonable. 4/

    
    

29. Considering the circumstances, it cannot be concluded that the Department's economic assessment, based on its assumption that facilities would select the least expensive option, was unreasonable. Moreover, absent any demonstration that the Department's rule relating to the specific equipment that must be available to clean up a 10,000 gallon pollutant discharge was unreasonable, it cannot be concluded that the Department's failure to specifically comply with the rule promulgation procedural requirements relating to small businesses adversely affected the correctness or fairness of the rule adoption process where, as here, the requirement that such "additional cleanup equipment" be available was mandated by the Legislature.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.54(4), Florida Statutes.

    
    

31. Section 120.54(4)(a), Florida Statutes, provides:

    
    

    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 legislative authority.

    
    

32. To demonstrate that it is substantially affected by a proposed rule, a party must establish that, as a consequence of the proposed rule, it will suffer injury in fact, and that the injury is one that is subject to protection in the proceeding by virtue of a rule, statute or constitutional provision. Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Further, the injury must not be speculative, nonspecific and hypothetical, and lacking in immediacy and reality. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). Applying such standards to the facts of this case demonstrates that petitioner has established the requisite standing to challenge the proposed rules.

    
    

33. To prevail in this case, the burden is upon the petitioner to demonstrate that the proposed rules are an invalid exercise of delegated legislative authority. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978). An

    invalid exercise of delegated legislative authority is defined by Section 120.52(8), Florida Statutes, as follows:

    
    

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

    
    

34. A rule is vague or fails to establish adequate standards for agency decisions when its terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Cumming, 365 So.2d 153 (Fla. 1978). A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960). Arbitrary and capricious action is defined in Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 760, 763 (Fla. 1st DCA 1979), 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.

    
    

35. Here, applying the foregoing standards to the facts of this cases, demonstrates that proposed rule 16N-16.009(3), which defines "waterfront or offshore facility," enlarges, modifies, or contravenes the specific provisions of law implemented, and that proposed rule 16N-16.028, which purports to delineate the Department's jurisdictional boundary, is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Consequently, such proposed rules are an invalid exercise of delegated legislative authority.

    
    

36. With regard to proposed rules 16N-16.032, 16N-16.033 and 16N-16.034, the gravamen of petitioner's challenge is its contention that the imposition of the "additional cleanup equipment" requirement upon terminal facilities, such as petitioner, that do not service vessels with a capacity to carry 10,000 gallons of pollutants, conflicts with the exemption provided by Section 376.065(3), Florida Statutes. 5/ Here, as noted in the findings of fact, the parties' dispute resolves itself to an interpretation of the exemption provided by section 376.065(3).

37. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation

    v. Goldring, 477 So.2d 532 (Fla. 1985), All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984), and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, the Department's interpretation of the exemption provided by section 376.065(3) is a permissible interpretation, and not clearly erroneous. Accordingly, the proposed rules do not enlarge, modify or contravene the specific provisions of law implemented, and are not an invalid exercise of delegated legislative authority.

    
    

38. Finally, petitioner urges that the economic impact statement issued by the Department fails to comply with the statutory requirements of section 120.54(2), Florida Statutes, because, among other things, it fails to analyze the rules' impact on small businesses. Here, while it can be reasonably argued that the Department's economic impact statement was less than thorough, it cannot be concluded, for the reasons that follow, that such deficiencies impaired the fairness of the rulemaking process or the correctness of the agency's action.

    
    

39. The basis for petitioner's concern with the economic impact statement relates to the Department's conclusion that small businesses would not be affected by the proposed rules and, therefore, its failure to address the impacts to small businesses. Petitioner has, however, failed to demonstrate any harmful error in the Department's analysis.

    
    

40. Section 376.065(3), Florida Statutes, imposes the "additional cleanup equipment" requirement upon terminal facilities having a storage capacity of 10,000 gallons of pollutants, not the proposed rules, and no deference is accorded by such legislation to small businesses. The only economic impact associated with such cleanup equipment, that is occasioned by the rules, relates to the actual equipment the Department specified in proposed rule 16N-16.034 as satisfying the "additional cleanup equipment" requirement, and its attendant cost. Petitioner did not, however, dispute or demonstrate that such equipment would not be needed to clean up a 10,000 gallon pollutant discharge. Under such circumstances, it cannot be concluded that the Department's failure to assess the impacts of such costs on small businesses, or otherwise comply with the procedural requirements relating to small businesses, adversely affected the fairness of the proceedings or the correctness of its decision. See, Florida Waterworks Asso. v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985), Humana, Inc. v. Department of Health and Rehabilitative Services, supra, and Plantation Residents' Association, Inc. v. School Board of Broward County, 424 So.2d 879 (Fla. 1st DCA 1983).

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that proposed rules 16N-16.009(3) and 16N-16.028 are an invalid

exercise of delegated legislative authority. With regard to that part of the

subject rule challenge that relates to proposed rules 16N-16.032, 16N-16.033 and 16N-16.034, the petition is denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of June 1992.

WILLIAM J. KENDRICK

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 25th day of June 1992.

ENDNOTES

1/ Petitioner has a net worth of less than $1 million, and employes approximately 15 people.

2/ Petitioner's rule challenge did not individually address the merits of proposed rules 16N-16.032, 16N-16.033, and 16N-16.034 but, rather, in broad brush charged that all three exceeded the Department's grant of rulemaking authority and the provisions of law implemented based on it assertion that section 376.065(3) exempts terminal facilities that do not service vessels with a capacity to carry 10,000 gallons of fuel from the "additional cleanup equipment" requirement. The merits of petitioner's position are addressed infra, under the findings related to proposed rule 16N-16.033, which is the only proposed rule that would impose the "additional cleanup equipment" requirement on petitioner or others similarly situated.

3/ The Department's estimate of $1,500 was the cost of contracting to assure the availability of the equipment, and did not include additional costs that would be incurred by the terminal if the cleanup organization had to respond to a spill. Such additional costs are, however, speculative since they are dependent on whether a spill occurs and, if so, its gravity.

4/ At hearing, petitioner's president testified that the cost to purchase the one-hour response equipment (the containment boom) would be approximately

$20,000. Such equipment is, however, mandated by section 375.065(3), not department rule. He further testified that he had "heard a quotation" as high as $65,000 to purchase response and cleanup equipment "to service his area," not including removal or skimmer devices, and that although he was "not knowledgeable" as to their costs, he would "imagine" that if such devices were included, the total could well add up to $100,000. [Tr. pages 17 and 25] Such testimony is not persuasive to demonstrate the costs associated with purchasing such equipment. Moreover, while he was of the opinion that because of the design of his facility, it could not spill more than 100 gallons of pollutants, and would not need such equipment, he also conceded that were a spill of 10,000 gallons experienced such equipment would be needed. [Tr. pages 24 and 46] Notably, in addition having the capacity to store 10,000 gallons of pollutants at its facility, petitioner has also accommodated vessels with such capacity.

5/ As heretofore noted in the findings of fact, petitioner's challenge to these proposed rules was broad brush, and is most appropriately addressed toward proposed rule 16N-16.033. It is such rule that imposes the secondary cleanup requirement based on terminal capacity, not rules 16N-16.032 and 16N-16.034.

However, resolution of the dispute adverse to petitioner with regard to proposed rule 16N-16.033 is likewise dispositive of any similar issue, assuming its pertinence, that could be raised toward such other proposed rules.

Consistent with its broad brush challenge to the proposed rules, petitioner charged that each of the proposed rules were invalid under Section 120.52(8)(a)- (e), Florida Statutes. [Petitioner's proposed final order, paragraph 7, Conclusions of Law.] The proof fails, however, to support the legitimacy of any challenge other than those specifically addressed in this final order.

APPENDIX TO FINAL ORDER, CASE NO. 92-1888R

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1 and 2.

1. Addressed in footnote 1.

2. Addressed in footnote 4.

3. Rejected as not relevant.

4. First sentence rejected as not wholly accurate or relevant. Second sentence accurate but unnecessary or relevant.

5. To the extent pertinent, addressed in paragraphs 6, 11 and 12.

6. Rejected as not relevant.

7. Addressed in paragraphs 6-8.

8. Addressed in paragraphs 11-21 and attendant footnotes.

9. First sentence rejected as not relevant. Second sentence rejected as contrary to the proof.

10. Addressed in paragraphs 22-29.

The Department's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1 and 5.

3 & 4. Addressed in paragraph 4.

5. Addressed in paragraphs 2 and 3, Conclusions of Law.

6 & 7. Addressed in paragraph 9.

1. Addressed in paragraph 23.

2. Addressed in paragraph 13.

10 & 11. Accurate, but rejected as unnecessary or not relevant.

1. Addressed in paragraph 23.

2. Addressed in paragraph 29.

3. Rejected as not persuasive or relevant. See paragraphs 27 and 28.

15-25. Addressed in paragraphs 22-29. 26-28. Rejected as not relevant.

COPIES FURNISHED:

William E. Guy, Jr., Esquire

55 East Ocean Boulevard Post Office Box 3386 Stuart, Florida 34995-3386

M.B. Adelson, IV, Esquire Frank Cleveland, Esquire Assistant General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

MS-35 Douglas Building Tallahassee, Florida 32399-3000

Virginia D. Wetherell Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Ken Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

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

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

Docket for Case No: 92-001888RP

Orders for Case No: 92-001888RP