STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENDRY CORPORATION, )

)

Petitioner, )

)

vs. ) CASE Nos. 92-2312

) 92-4797

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in the above-styled consolidated cases on October 27 and 28, 1992 in Tampa, Florida.

APPEARANCES

For Petitioner: Thomas J. Patka, Esquire

Rory C. Ryan, Esquire Holland & Knight

200 South Orange Avenue, Suite 2600 Post Office Box 1526

Orlando, Florida 32802

For Respondent: Agusta P. Posner, Esquire

Lisa Duchene, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Whether Petitioner, Hendry Corporation ("Hendry"), is entitled to reimbursement under the State of Florida's Early Detection Incentive Program ("EDI") for the cost of cleanup of petroleum contamination at its facility in Tampa, Florida and (2) whether Hendry must obtain a hazardous waste closure permit for cleanup of an isolated area on the site as opposed to a less costly and extensive contamination assessment/remediation procedure.

PRELIMINARY STATEMENT

This matter arose after the Department of Environmental Regulation (herein "Department" or "DER") conducted an investigation at Petitioner's facility which resulted in allegations that Petitioner (Hendry) had petroleum contamination on site and had violated certain rules regarding hazardous waste management. As a result of those allegations, Petitioner and Respondent agreed to a settlement that was memoralized in a consent agreement in December, 1990. Thereafter, Hendry and the Department disagreed as to the rules and procedures that would

apply to the cleanup of some areas of the site. As a result, Hendry submitted a map delineating those specific areas of the site that it contends are contaminated predominately by petroleum and those areas that it contends are contaminated by other substances, including areas contaminated by hazardous waste. Hendry's map identified the four areas of concern as "Areas 1, 2, 3 and 4". Thereafter, Respondent made various separate determinations based on that map, including a finding that Area 1 is predominately contaminated by petroleum. Petitioner does not disagree with the Department's finding that Area 1 is predominately contaminated by petroleum and thus has reasserted that it is eligible for EDI reimbursement. Hendry, however, disagrees with the DER's determination that Areas 2 and 3 are contaminated by constituents other than predominately petroleum or petroleum related products. Finally, while Petitioner disagrees that Area 4 must be closed through a hazardous waste closure permit, it does not challenge its responsibility for cleaning up Area 4.

Hendry's initial application for EDI reimbursement was denied and it requested, and received, an extension of time for the filing of a petition challenging that denial. During that extension, Petitioner and Respondent resolved the disagreement over EDI eligibility and entered into a stipulation and settlement. That stipulation required Hendry to perform certain actions with respect to Areas 1, 2 and 3 to qualify for EDI reimbursement.

At the hearing, Hendry presented the following witnesses: James Braukman; Aaron W. Hendry; Richard Mortensen, accepted as an expert in hydrogeology and environmental contamination assessment; and Robin B. DeHate, accepted as an expert in environmental audits.

Hendry offered exhibits 1 through 16, 18 through 24, and 26 which were received in evidence.

DER presented the following witnesses: Paul Panik; Steven Taylor; Paul E. Young, as an adverse witness; Mary McAuliffe, accepted as an expert in site assessment remediation and management of tank restoration sites; Stanley Knight, as an adverse witness; William Doherty; Joan Ragland; Hector C. Diaz; Patricia

H. Gavagan; Elizabeth Knauss, accepted as an expert in hazardous waste compliance evaluation; and Timothy James Bahr, accepted as an expert in hydrogeology and petroleum related contamination assessments.

DER offered exhibits 1 through 8, 8A, 9 through 20, and 22 through 29 which were received in evidence.

A transcript of the proceedings was filed with the Division on November 16, 1992, and the deadline for the filing of proposed recommended orders was December 7, 1992.

The parties' proposed findings and recommended orders were considered in preparation of this Recommended Order. Petitioner's proposed findings of fact are substantially incorporated in this Recommended Order. Proposed findings not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. The Department (DER) is the regulatory agency of Florida charged with the duty and authority to administer and enforce Chapter 403 and Sections 376.30-376.319, Florida Statutes, and rules and regulations promulgated thereunder.

2. Hendry is a Florida corporation that has been conducting business in excess of 60 years. The two main aspects of its business are the dredging operation and the shipyard. Hendry's site can be loosely described as an industrial site.

   
   

3. The shipyard division performs approximately one-half its work for governmental entities, particularly the U.S. Coast Guard, which operations are largely ship refurbishing.

   
   

4. Hendry has a Coast Guard certificate enabling it to receive mixtures containing oil and oily water waste.

   
   

5. A significant portion of Hendry's ship refurbishing work involves repairing/replacing steel on ships which has deteriorated due to salt water exposure. That work frequently requires cutting, welding and burning. Prior to commencing the refurbrushing work, the ships must be certified as safe.

   
   

6. In certifying a ship as being safe, the bilge area is pumped of used oil or waste oil which collects in standing waste water and oil. Also, before that works commences, the ship is defueled.

   
   

7. Currently, Hendry's practice is to subcontract the pumping of waste oil from the ships bilge, which waste oil is pumped directly into the tanker truck of the subcontractor.

   
   

8. Hendry no longer pumps or stores waste oil on site.

   
   

9. In the past, the waste oil and water from the ship's bilge was pumped from the ship through a pipeline from the dry dock across the property to a 10,000 gallon above-ground storage tank. During December 1987, the U.S. Coast Guard observed a fuel spill on the water at Petitioner's facility. Based on that observation, Respondent conducted site inspections of Petitioner's facility during March and April 1988. The fuel spill was occasioned by Petitioner's refurbishment of a tuna boat at its site. Petitioner subsequently received a warning notice regarding alleged violations in its petroleum storage tanks and contamination.

   
   

10. The transfer pipeline is of steel construction. Between 1980 and 1984, the pipeline leaked. In 1984, the pipeline was rerun with PVC line and in 1986, it was refitted with 4 inch steel pipe.

    
    

11. The 10,000 gallon above-ground tank is located in Area 1.

    
    

12. The removal of waste oil occasionally resulted in accidental spills.

    
    

13. After 1985, a smaller, above-ground tank was installed adjacent to the 10,000 gallon tank to provide a storage tank for draining off water from the 10,000 gallon tank. The small tank was used to receive only water drained from the 10,000 gallon tank.

    
    

14. Prior to installation of the small tank, a retention pond was used to drain water from the 10,000 gallon tank. The retention pond had a 2 foot berm with a visqueen liner.

    
    

15. In October 1988, Hendry submitted an EDI Program Notification Application, a prerequisite for EDI reimbursement eligibility, under the program for costs associated with cleanup of certain petroleum contamination.

16. In May 1989, Hendry submitted a document entitled Preliminary Contamination Assessment III Specific Areas--Task IV Rattlesnake Terminal Facility--Westshore Boulevard, Hillsborough County prepared by Mortensen Engineering, Inc. That document included reports of analysis of oil and groundwater samples taken from the site in January, March and April 1989, demonstrating extensive contamination of soil and groundwater including "free product" in monitoring wells MW-2, MW-4 and MW-4A.

    
    

17. By letter dated November 9, 1989, the Department informed Hendry of its determination that the facility had been denied EDI reimbursement based on specific enumerated findings.

    
    

18. Hendry entered into a stipulation with the Department on October 16, 1990, "regarding the conduct of this case and the basis for denial. "

    Attached to the stipulation is a sketch of the facility grounds showing a rough division of the area into four separate areas.

    
    

19. Area 1 has two waste tanks. One was a large 10,000 gallon closed tank approximately 20 feet high and 12 feet in diameter; the other contained a volume of approximately 1,500-2,000 gallons and was an open tank.

    
    

20. Petitioner's practice was to pump bilge in the dry dock area, located west of "Area 2" and direct the waste through underground pipes to the 10,000 gallon tank. The smaller tank was used to "bleed" water from the larger tank. Bilge waste is approximately two-thirds water.

    
    

21. Area 2 was the location of Hendry's diesel tank farm.

    
    

22. In the stipulation, the Department agreed to withdraw two of the seven specific grounds for the denial, namely denial of site access and failure to report discharges. Likewise, Hendry agreed to withdraw "Area 4" from its application for EDI eligibility.

    
    

23. In the stipulation, Hendry was informed of a then recent amendment to Section 376.3071(9), which offered certain applicants who had been earlier determined ineligible for participation in the EDI program, standards and procedures for obtaining reconsideration of eligibility. The amendment required the facility to come into compliance, certify that compliance and request reconsideration prior to March 31, 1991. Additionally, compliance was to be verified by a Department inspection. Pursuant to paragraph 5(b) of the stipulation, these standards and procedures were specifically to be applied to Areas 2 and 3 at the facility.

    
    

24. Hendry did not make a written request for reconsideration of the denial of eligibility with respect to Areas 2 and 3 on or before March 31, 1991 or at anytime subsequently.

    
    

25. Hendry also did not come into compliance with the underground or above-ground storage tanks system regulations on or before March 31, 1991 in that Hendry failed to register a 560-gallon above-ground diesel storage tank which was onsite on that date as required by Rule 17-762.400, Florida Administrative Code. Hendry also failed to notify the Department of the Hillsborough County Environmental Protection Commission (HCEPC), as the administrator of a designated local program at least thirty days prior to closure of the storage tank system, pursuant to Subsection 376.3073, Florida

    Statutes. These determinations were made on April 1, 1991 by Hector Diaz, inspector in the HCEPC tanks program.

    
    

26. Hendry submitted a registration form for the 560-gallon tank on November 18, 1991, which was of course subsequent to the March 31, 1991 deadline.

    
    

27. Hendry stored petroleum products and waste material including petroleum constituents in the above-ground tanks until approximately March 25, 1991 when it initiated tank removal.

    
    

28. Hendry's above-ground storage tanks, which were in use at its facility for approximately three years after extensive soil contamination was documented, were without secondary containment.

    
    

29. In November 1991, Hendry submitted a document entitled Supplemental Preliminary Contamination Assessment Report, prepared by Keifer-Block Environmental Services, Inc. (Supplemental PCAR). The stated purpose of the study was solely to determine whether hazardous constituents were present in groundwater in Areas 2 and 3. The report included laboratory analysis of groundwater samples taken from the site in August 1991 including monitoring wells located in Area 3.

    
    

30. The results of these analysis reflect that Area 3 is contaminated solely with heavy metals, lead and chromium. No petroleum hydrocarbon contamination was detected in Area 3.

    
    

31. In the area adjacent to Area 2, seven of eight monitoring wells show chromium or lead contamination.

    
    

32. Hendry had, and continues to have, a practice of removing paint from vessels by blasting them with a gritty material known as "black beauty." This practice takes place in the dry dock area near Areas 2 and 3. The waste blast grit/paint chip mixture is vacuumed or shoveled into wheelbarrels or a frontend loader and dumped into an open pile. Occasionally, the waste blast grit/paint mixture is blown about or spilled. Waste "black beauty" has been observed scattered on the ground throughout the facility.

    
    

33. Paints sometime contain heavy metals, specifically, lead and chromium.

    
    

34. The concentrations and distribution of lead and chromium contamination at the site are consistent with Hendry's long-standing practice of grit-- blasting paint from ships and other vessels and allowing the metal-contaminated paint and waste mixture to fall to the ground.

    
    

35. Areas 2 and 3 are contaminated with substances other than petroleum or petroleum products, namely heavy metals. Costs associated with cleanup of lead and chromium are not reimburseable under the EDI program.

    
    

36. Paragraph 5(c) of the stipulation allowed Hendry an opportunity to establish eligibility for Area 1 by providing information regarding operating practices at two above-ground storage tanks and a retention pond in that area demonstrating that contamination in that area is predominantly from leaks or unintentional spills of petroleum products from the tanks in that area. Hendry did not provide the required information.

37. On January 27, 1992, Hendry submitted to the Department an affidavit executed by its principal, Aaron Hendry, which Hendry contends fulfills the requirements of paragraph 5(c) of the stipulation.

    
    

38. Hendry, the principal who executed the affidavit, is an affiant with a legal and financial interest in the outcome of the EDI eligibility determination.

    
    

39. The executed affidavit did not contain specific information with respect to "operating practices at the tanks and retention ponds as required by the stipulation." Specifically, the affidavit is silent as to:

    
    

    1. What the tanks were made of;

    2. When, how and by whom they were installed;

    3. What piping, leak detection or overfill protection was associated with them;

    4. What repairs or alterations had been made to them;

    5. What inventory reconciliation methods were used;

    6. Where the materials came from which was put into the tanks;

    7. In what manner, how often, and by whom material was put into the tanks;

    8. In what manner, how often, and by whom material was removed from the tanks;

    9. Disposition of material removed from the tanks;

    10. When, how, by whom and why the retention pond was dug;

    11. How and for what period of time the retention pond was used; How, often and by whom inspections of the tanks were conducted;

    12. When and how leaks occurred and were discovered at the tanks;

    13. When and how spills occurred and were discovered at the tanks;

    14. What records, including reports to state or local agencies, insurance claims, newspaper accounts, and so forth were kept with respect to leaks or spills at the tanks;

    15. What cleanup efforts were made at the time of any leaks or spills;

    16. Documentation related to registration of the tanks with state or local agencies; and

    17. Documentation with respect to any removal of the tanks, including any description of the condition of the tanks when, or if, removed.

40. For years, the facility's retention pit was used as a "waste pit" namely, a rectangular hole in the ground, approximately 30 feet by 120 feet by 3 feet, for direct discharge of bilge waste piped from vessels at the dry dock area to the waste pit, prior to installation of the storage tank systems. After installation of the large tank in Area 1, the retention pit was used to bleed water from the bilge tank.

    
    

41. In the past, the Department has denied eligibility to facilities where a retention pond was used for disposal of petroleum related waste and cleanup of contamination resulting from use of a retention pond.

42. Hendry's affidavit nor other documentation submitted to the Department prior to the EDI redetermination or at hearing establishes that the bilge waste taken from the storage tanks was "a liquid fuel commodity" or recycled into such a commodity.

    
    

43. By letter dated June 9, 1992, the Department notified Hendry that reconsideration of its EDI eligibility request for Areas 2 and 3 was denied and that the affidavit of Aaron Hendry submitted with respect to Area 1 did not satisfy the requirements of the stipulation.

    
    

44. Thereafter, Hendry challenged the Department's denial of reconsideration and EDI eligibility which joins the issue for this proceeding.

    
    

45. The hazardous waste allegation discovered during an inspection of Hendry's facility on April 14, 1988, resulted in a consent order which was entered as a final order of the Department on November 21, 1990.

    
    

46. The consent order allowed Hendry an opportunity to demonstrate that not all areas at the facility were hazardous waste disposal areas and, thus, not all areas would be subject to closure and cleanup under the permitting requirements of Subsection 403.722, Florida Statutes and the remediation standards set forth in Chapter 17-730, Florida Administrative Code.

    
    

47. To establish appropriate remediation standards and procedures which would be applicable to various areas, Hendry was required to prepare a property diagram designating areas at the property exhibiting any of the following types of contamination:

    
    

    1. Areas contaminated solely by petroleum or petroleum products or used oil which is not hazardous waste;

    2. Areas contaminated by materials which are not hazardous waste;

    3. Areas contaminated by the past or present disposal of hazardous waste.

    
    

48. The consent order allows contamination assessment and remediation pursuant to the standards and procedures set forth in Chapter 17-770, Florida Administrative Code, for areas contaminated solely by petroleum or petroleum products. (Petitioner's Exhibit 5, paragraph 11.)

    
    

49. The consent order requires contamination assessment and remediation pursuant to the Department's corrective action and groundwater contamination cases for all areas at the facility contaminated by used oil which is not hazardous waste or by hazardous material. (Petitioner's Exhibit 5, paragraph 12.)

    
    

50. The consent order requires contamination assessment and remediation pursuant to a closure permit with a contingent post-closure plan to close the areas at the facility contaminated by the disposal of hazardous waste.

    
    

51. In response to the consent order to delineate areas on the property exhibiting various types of contamination, Hendry submitted the supplemental PCAR.

52. By letter dated March 19, 1992, the Department responded to the supplemental PCAR with a determination that:

    
    

    1. Area 1 can be assessed and remediated through the standards set forth in Chapter 17-770, Florida Administrative Code.

    2. Contamination in Areas 2 and 3 includes heavy metals, which are hazardous materials. Thus, Areas 2 and 3 should be assessed and remediated through the corrective action process for groundwater contamination cases.

    3. A hazardous waste facility closure permit application should be submitted for assessment and remediation of Area 4, which, because of the

    presence of Dichloroethylene, a hazardous substance and chlorinated solvent, should be expanded to include the location of monitoring well MW KBMW-2.

    
    

53. Hendry had a practice of cleaning electrical motors by placing such motors on the ground outside the electrical repair shop near Area 4. The motors were sprayed with Trichloroethylene, a waste solvent, which was allowed to runoff into the soil. At the time of this practice, the intention was to leave the solvent contamination unchecked.

    
    

54. The Department, pursuant to directives from the United States Environmental Protection Agency (EPA), characterizes the disposition of hazardous waste to the environment as a result of intentional, ongoing industrial practices as "disposal of hazardous waste" within the meaning of Subsection 475.703(21), Florida Statutes and 40 CFR 260.10.

    
    

55. The consent order allowed Hendry an opportunity to challenge the Department's determination with respect to delineation of the various areas by filing a petition per paragraph 21 of the order for formal administrative hearings. Hendry filed its petition with respect to the March 19, 1992 letter, which petition is the subject of DOAH Case No. 92-2312.

    
    

    CONCLUSIONS OF LAW

    
    

56. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

57. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

58. Respondent's authority is derived from Chapters 403 and 376, Florida Statutes.

    
    

59. The Department (Respondent) is the regulatory agency in Florida charged with the duty and authority to administer and enforce Chapter 403 and Sections 376.30-376.319, Florida Statutes, and rules and regulations promulgated thereunder.

    
    

60. Florida has incorporated, by reference, regulations promulgated by the United States Environmental Protection Agency respecting management of hazardous waste including definitions of hazardous waste and standards applicable to

    persons who generate, transport, store, treat and dispose of hazardous waste. Chapter 17-730, Florida Administrative Code.

    
    

61. Provisions of Chapter 17-730, Florida Administrative Code, relevant herein were effective in and prior to April 1988.

    
    

62. Waste solvents containing, before use, 10 percent or more of 1,1,1- trichloroethane is a listed hazardous waste with hazardous waste number F001 pursuant to 40 CFR 261.31, adopted by reference in Rule 17-730.030(1), Florida Administrative Code.

    
    

63. Lead and chromium are "hazardous constituents" set forth in Appendix VIII of 40 CFR 261 and adopted in Rule 17-730.030(1), Florida Administrative Code.

    
    

64. Petitioner's practice of applying solvents to objects to be cleaned with the over-spray falling to the ground is "disposal" of hazardous waste within the meaning of Section 403.703(21), Florida Statutes.

    
    

65. Area 4 at Petitioner's facility where over-spraying took place, is a disposal facility as defined in 40 CFR 260.10 and Subsection 403.703(24), Florida Statutes.

    
    

66. Section 403.721, Florida Statutes, provides in relevant part that "each person who intends to ... close a hazardous waste disposal ... facility shall obtain a ... closure permit from the department. "

    
    

67. Pursuant to the consent order entered herein (paragraph 13) Petitioner was ordered and agreed to submit a RCRA closure permit for areas determined to be contaminated by disposal of hazardous waste.

    
    

68. Paragraph 10 of the referenced consent order places the burden of proof on Petitioner to show that an area is not contaminated by hazardous constituents and to establish the inappropriateness of the Department's determination respecting such issues.

    
    

69. Hillsborough County Environmental Protection Commission (HCEPC) is the administrator of a designated local program pursuant to Subsection 376.3073, Florida Statutes.

    
    

70. "Free product" is defined in Rule 17-770.200, Florida Administrative Code, as "petroleum or petroleum product in excess of 0.1 inches in thickness

    ... floating on the surface water or groundwater."

    
    

71. The EDI program was established to encourage early detection, reporting and cleanup of contamination from leaking petroleum storage systems and provided for state funded cleanup or reimbursement for specific types of petroleum-related contamination with certain criteria for eligibility. That eligibility is limited to contamination from "petroleum product" not just "petroleum constituents." See, Subsections 376.3071(9) and (12), Florida Statutes.

    
    

72. "Petroleum product" is defined in Subsection 376.301(14) as "any liquid fuel commodity made from petroleum, including, but not limited to, all forms of fuel known or sold as diesel fuel, kerosene ... gasolines and fuels containing a mixture of gasoline and other products. "

73. "Petroleum product" also includes used oil, "but only if it is being utilized, to a significant degree ... as a liquid fuel commodity." See Puckett Oil Company v. DER, 549 So.2d 720 (Fla. 1st DCA 1989).

    
    

74. An amendment to Subsection 376.3071(9), Florida Statutes, allowed certain applicants who had been earlier determined ineligible for EDI participation, standards and procedures for requesting reconsideration of eligibility.

    
    

75. The amendment required the facility (applicant) to certify compliance and request reconsideration prior to March 31, 1991. Additionally, compliance must have been verified by a department inspection.

    
    

76. Pursuant to paragraph 5.b. of the Stipulation, these standards and procedures were specifically to be applied in Areas 2 and 3 at Petitioner's facility.

    
    

77. Petitioner failed to demonstrate the requisite compliance by certifying such and requesting reconsideration prior to the March 31, 1991 deadline.

    
    

78. Likewise, Petitioner failed to properly register its aboveground diesel storage tanks at the facility.

    
    

79. Petitioner failed to properly abandon its storage systems as required pursuant to Rules 17-61.050 and 17-61.021(1), Florida Administrative Code.

    
    

80. Petitioner failed to notify the Department of changes in its facility status as required pursuant to Rule 17-61.900(2), Florida Administrative Code.

    
    

81. Subsection 376.3071(9)3.c.(IV)(C), Florida Statutes, provides that redetermination of EDI eligibility is unavailable for facilities that were denied eligibility due to "contamination from substances that were not petroleum products."

    
    

82. A "retention pond" or "waste pit" is not a petroleum storage system as defined by Section 376.301(17). Likewise, seepage from a retention pond is not a discharge from leaking petroleum storage systems for which Section 376.3071(9), Florida Statutes provides reimbursement. See, Red Top Sedan, Inc.

    v. Florida Department of Environmental Regulation, 564 So.2d 1091 (Fla. 1st DCA 1990).

    
    

83. The parties' stipulation provides in pertinent part that "any petroleum or petroleum product contamination at the site which is not the result of a discharge from a petroleum storage system shall not be eligible for funding under Section 376.3071(12), Florida Statutes." (Paragraph 4.b. of the stipulation.)

    
    

84. Petitioner affidavit dated January 27, 1992 does not provide adequate information regarding operating practices at the aboveground waste oil tanks and associated retention ponds. Likewise, it does not certify or otherwise demonstrate that the contamination is predominantly from leaks or unintentional spills from the aboveground tanks.

    
    

85. Areas 1, 2 and 3 are contaminated with hazardous constituents and are therefore not properly subject to cleanup under Chapter 17-770, Florida

    Administrative Code but instead under the guidance document,"Corrective Action for Groundwater Contamination Cases."

    
    

86. Area 4 is contaminated with solvents resulting from Petitioner's practice of cleaning electrical motors by over-spraying. Pursuant to Section 403.722, Florida Statutes and paragraph 13 of the consent order, the area should be cleaned up pursuant to a hazardous waste closure/post-closure permit procedure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Respondent, Department of Environmental Regulation, issue a Final Order in these consolidated cases concluding that 1) the contamination areas at issue herein are not eligible for EDI reimbursement under Subsections 376.3071(9) and (12), Florida Statutes; 2) that Petitioner cleanup the contamination in Areas 1,

2 and 3 under the guidance document entitled "Corrective Actions for Groundwater Contamination Cases"; and 3) that Area 4 be expanded to include the location of monitoring well MW KBMW-2 and closed through a hazardous waste closure/post closure permit application process.

DONE AND ENTERED this 26th day of April, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 26th day of April, 1993.

APPENDIX

Rulings on Petitioner's proposed findings of fact:

Paragraph 14, partially adopted in Paragraph 13, Recommended Order.

Paragraph 19, rejected, contrary to the greater weight of evidence and speculative.

Paragraph 20, rejected, unnecessary.

Paragraph 21, rejected, contrary to the greater weight of evidence, Paragraphs 24-28, Recommended Order.

Paragraph 22, partially adopted, Paragraphs 13 and 14, Recommended Order. Paragraph 23, partially adopted, Paragraph 15, Recommended Order.

Paragraph 29, partially adopted, Paragraph 18, Recommended Order. Paragraphs 31, 32, 35, 48, 49, 51, 52, 60, 62 and 73 rejected, unnecessary. Paragraph 33, adopted in part, Paragraph 23, Recommended Order.

Paragraph 38, adopted in part, Paragraph 23, Recommended Order.

Paragraph 41, rejected, contrary to the greater weight of evidence and the two cases cited at hearing where Respondent exercises his discretion are distinguishable from Petitioner's failure to timely apply.

Paragraph 43, rejected, unnecessary and/or argument.

Paragraph 45, rejected, contrary to the greater weight of evidence. Paragraph 50, rejected, contrary to the greater weight of evidence,

Paragraphs 37-39, Recommended Order.

Paragraph 54, rejected, not probative. Paragraph 55, rejected, not probative.

Paragraphs 56 and 57, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order.

Paragraphs 58 and 59, rejected, contrary to the greater weight of evidence, Paragraphs 23 and 24, Recommended Order.

Paragraph 61, rejected, speculative and unnecessary. Paragraph 63, rejected, speculative.

Paragraph 67, rejected, not probative.

Paragraph 68, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order.

Paragraph 69, rejected, not probative.

Paragraph 70, adopted in part, Paragraph 23, Recommended Order.

Paragraph 72, rejected, irrelevant and not necessary to the issues posed.

Paragraph 74, rejected, contrary to the greater weight of evidence and unnecessary.

Paragraph 75, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order.

Paragraph 76, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order.

Paragraph 77, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order.

Paragraphs 78 and 79, rejected, irrelevant and unnecessary. Paragraph 80, rejected, not probative.

Rulings in Respondent's proposed findings of fact:

Paragraphs 2 and 3, adopted in part, Paragraph 9, Recommended Order. Paragraph 12, adopted in part, Paragraph 23, Recommended Order.

Paragraph 23, adopted in part, Paragraph 32, Recommended Order. Paragraph 27, adopted in part, Paragraphs 38 and 39, Recommended Order. Paragraph 30, rejected, unnecessary.

COPIES FURNISHED:

Thomas J. Patka, Esquire Rory C. Ryan, Esquire HOLLAND & KNIGHT

200 South Orange Ave - Suite 2600 Post Office Box 1526

Orlando, Florida 32802

Agusta P. Posner, Esquire Lisa Duchene, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399 2400

Virginia B. Wetherell Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399 2400

Daniel H. Thompson, Esquire Acting General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399 2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 92-002312

Orders for Case No: 92-002312