STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 518837646, ) (Hudson - Site No. 8023), )

)

Petitioner, )

)

vs. ) CASE NO. 92-6871

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 08 89 45143, ) (Englewood - Site No. 8038). )

)

Petitioner, )

)

vs. ) CASE NO. 93-2710

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 08 90 45849, ) (Punta Gorda - Site No. 8039). )

)

Petitioner, )

)

vs. ) CASE NO. 93-2711

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 11 86 29447, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2712

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 05 88 40685, ) (Melbourne - Site No. 8024), )

)

Petitioner, )

)

vs. ) CASE NO. 93-4402

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 05 88 41566, ) (Cocoa - Site No. 8034), )

)

Petitioner, )

)

vs. ) CASE NO. 93-4403

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 05 88 41566, ) (Cocoa - Site No. 8034), )

)

Petitioner, )

)

vs. ) CASE NO. 93-4404

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 36 86 31544, ) (Ft. Myers - Site No. 8006), )

)

Petitioner, )

)

vs. ) CASE NO. 93-4405

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 52 89 44446, ) (Clearwater - Site No. 8036), )

)

Petitioner, )

)

vs. ) CASE NO. 93-4406

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

) SUPERAMERICA OF FLORIDA, INC., )

DER Facility No. 58 88 40985, ) (Sarasota - Site No. 8035), )

)

Petitioner, )

)

vs. ) CASE NO. 93-5734

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 6, 1995, a formal administrative hearing was held in this case in Tallahassee, Florida, before Mary Clark, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary M. Pappas, Esquire

POPHAM, HAIK, SCNOBRICH and KAUFMAN, LTD.

4000 International Place

100 Southeast Second Street Miami, Florida 33138

and

James Ellerbe, Esquire SuperAmerica Group Law Department 3499 Dabney Drive

Lexington, Kentucky 40509

For Respondent: W. Douglas Beason

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

The central legal issue in these consolidated cases is whether Petitioner (SuperAmerica) is eligible for restoration benefits under the Florida Petroleum Liability and Restoration Insurance Program (FPLRIP), Section 376.3072, Florida Statutes, following petroleum discharges at each of the sites. The parties stipulated that the sites were regulated under Chapter 376, Florida Statutes, and Department of Environmental Protection's (DEP, or agency) rules governing

underground petroleum storage systems. The parties also stipulated that SuperAmerica was eligible to apply for restoration coverage pursuant to FPLRIP at each site.

Most of the material underlying facts are uncontroverted. There is a dispute as to which facts are material and relevant. There is also a dispute as to which version of Section 376.3072, Florida Statutes, and which version of DEP's rules apply in each case. There were revisions to Section 376.3072, Florida Statutes, which became effective July 1, 1992; the rules implementing those revisions took effect February 22, 1993.

There must be a determination of these issues, as well:

1. Whether Petitioner was in substantial compliance with Section 376.3072, Florida Statutes, and the applicable rules; and

   
   

2. Whether Petitioner took all necessary corrective action in response to the discharges at the sites.

With regard to Case No. 93-4405, the parties stipulate that the only issue

is:

Whether a discharge caused by a contractor drilling into a petroleum product supply line during a site assessment being conducted prior to the transfer of ownership of the site arises from operating a storage system containing petroleum product such that the discharge is an incident eligible for restoration coverage under FPLRIP.

PRELIMINARY STATEMENT

These cases arose from DEP's denial of FPLRIP coverage for the sites at issue and SuperAmerica's request for formal hearings on the denial. After the cases were referred to the Division of Administrative Hearings they were consolidated for consideration in a single proceeding. The cases were heard, as described above, after a lengthy period of abeyance.

Prior to hearing, SuperAmerica filed its notice of voluntary dismissal in case no. 93-2712, above. Two other cases were duplicates, resulting from two petitions in response to two denials: cases 93-4403 and 93-4404 (Cocoa - site no. 8034). The parties stipulated that the facts and issues are the same and there is appropriately only one case involving that site. After these corrections, there remain seven separate sites with common facts and legal issues (Hudson - site no. 8023; Englewood - site no. 8038; Punta Gorda - site no 8039; Melbourne - site no. 8024; Cocoa - site no. 8034; Clearwater - site no.

8036; and Sarasota - site no. 8035). A single site (Ft. Myers - site no. 8006) presents only the legal issue described above.

At hearing, SuperAmerica presented two witnesses: Casey McKenzie, administrative manager for SuperAmerica's Florida convenience stores from October 1990 until June 1993; and Scott Hiser, now an employee of SuperAmerica, but previously an environmental contractor retained by SuperAmerica in December 1992 to oversee and manage petroleum contamination assessment projects at its

Florida convenience store locations. Mr. Hiser was qualified as an expert in all phases of petroleum contamination assessment and remediation in Florida groundwater.

DEP presented the testimony of William Truman, an environmental manager and administrator of the agency's FPLRIP.

SuperAmerica presented composite exhibits A - F. DEP's objection is overruled as to relevance of information in those exhibits after the discharge notification forms were filed. SuperAmerica's exhibit G, a stipulation involving another site, has been received over objection. SuperAmerica's exhibits H35 and 135 were received without objection; SuperAmerica's exhibits H36, 136 and J36 were received over objection. DEP's exhibits nos. 1 - 6 were received without objection.

The transcript of hearing was filed on January 26, 1996; the parties filed their proposed recommended orders, and SuperAmerica filed a memorandum of law, on February 5, 1996. The findings of fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

1. Petitioner, SuperAmerica of Florida, Inc. (SuperAmerica) is affiliated with SuperAmerica Group, Inc., a corporation with headquarters in Lexington, Kentucky. SuperAmerica markets petroleum products from convenience store facilities in an eleven-state area concentrated in the Ohio Valley and upper Midwest.

   
   

2. In 1985, SuperAmerica began constructing convenience store facilities in Florida, and opened its first stores in 1986. It installed state-of-the-art petroleum storage tanks, lines, dispensers and leak detection equipment at each new site.

   
   

3. Casey McKenzie became SuperAmerica's administrative manager for its Florida facilities in October 1990. At that time there were approximately thirty-seven SuperAmerica convenience store facilities in Florida. Mr. McKenzie's duties included monthly reporting to corporate headquarters, environmental compliance, and emergency petroleum discharge response at the Florida sites. Mr. McKenzie left Florida in June 1993, after SuperAmerica completed its sale to Shell Oil Company of what was then over fifty sites.

   
   

4. Virtually all of SuperAmerica's Florida sites had three separate tanks for different grades of gasoline, plus one tank for diesel fuel. The tanks were either 12,000 or 8,000 gallons in volume. Each site had between twelve and sixteen dispensers, and each dispenser had up to six nozzles for dispensing different grades of gasoline and diesel fuel.

   
   

5. The Florida sites, including the sites at issue, experienced high volume sales as they were open twenty-four hours a day and were located in areas of heavy private and commercial traffic. The volume of sales required frequent storage tank refilling, sometimes daily or every other day.

   
   

6. The volume of sales and frequent refillings made petroleum discharges in the form of spills, splashes and drips caused by human error a common occurrence. Customer overfill incidents involving small quantities of fuel were the most common occurrence. Other spills resulted when the underground storage tanks were being filled.

7. SuperAmerica had procedures to minimize the risk of spills and to detect the spills or discharges.

   
   

8. The tanks were all fitted with Gilbarco automatic tank gauging devices which computed volume of fuel and water in the tanks, the inches of fuel and water and the temperatures inside the tanks. Operators or staff also used long sticks to manually measure volume of fuel and water in the tanks. And a third method of measure was a daily sales inventory. Mr. McKenzie received the reports of these inventories on a periodic basis and store operators were instructed to watch for, and report unexplained discrepancies. To his knowledge, during his tenure as administrative manager, there were no unexplained discrepancies nor discrepancies in those inventories resulting from leaking tanks.

   
   

9. At each site, including the sites at issue, there were six groundwater monitoring wells. The wells were generally installed during installation of the underground storage tanks in the same excavation pit. The monitoring wells were accessible through manhole covers on the surface of the concrete pad. Locked caps below the manhole covers were intended to maintain the environmental integrity of the wells. Water entered the wells through slots in the pipes which lined the well, from about a foot below the pad surface and extending below the water table.

   
   

10. Prior to June 1991, the SuperAmerica area managers took water samples from the wells each month, performed sight and smell tests and recorded the results on an inspection report. Beginning in June 1991, SuperAmerica hired National Environmental Services and Testing (NEST) to perform the monthly groundwater sampling from the monitoring wells.

    
    

11. NEST used a vapor monitoring device (organic vapor analyzer - OVA) in the monitoring wells to detect the pressure of organic vapors in addition to performing groundwater sampling. The monitoring wells at the seven sites at issue contained groundwater. At various times, as more specifically addressed below, NEST's monitoring reports for the sites at issue noted elevated organic vapor readings, odor present, and product in the form of skim, light skim, or sheen.

    
    

12. Mr. McKenzie had procedures in place and carried out those procedures to respond to large volume spills or accidents above ground, as well as catastrophic leaks of underground tanks. These were his primary concerns. He did not expect a catastrophic leak in the relatively new equipment, and none occurred.

    
    

13. Mr. McKenzie did not attribute any of the reports of elevated vapor readings, odor or presence of petroleum or diesel product in the form of skim or sheen, as evidence of tank or line failure. There are other rational explanations for the readings. Specifically, rainfall could easily dissolve and wash spilled fuel, antifreeze, oil or road grease into cracks in the pad, into manhole covers and onto the ground where it could easily seep into the monitoring wells.

    
    

14. As conceded by counsel for SuperAmerica, there was a discharge at each of the seven sites, for purposes of the FPLRIP program.

    
    

15. Printed text on the top of the Discharge Reporting Forms advises facilities of their obligation to report discharges or suspected releases within

    one day of discovery. For each site at issue, monitoring well records contained evidence of odor, product or elevated vapor readings more than one day prior to SuperAmerica's filing Discharge Reporting Forms.

    
    

16. After filing Discharge Reporting Forms with DEP, Mr. McKenzie contacted Tanknology Corporation to schedule testing of the tanks and lines. The company was busy and was not able to complete the tests until some time (more than three days) after Mr. McKenzie filed the Discharge Reporting Forms.

    
    

17. SuperAmerica did not intentionally cause a discharge at any of the sites, nor intentionally disable leak detection devices. When the Discharge Reporting Forms were filed, Mr. McKenzie was not aware of any spill or other discharge in excess of 25 gallons for which he had failed to file a reporting form within twenty-four hours.

    
    

18. As of the date of the hearing there was no conclusive evidence of what caused the odor, product and elevated OVA readings in the monitoring wells. SuperAmerica's expert conjectures that they were caused by surface water runoff, sloppy transport deliveries, customer overfills and other routine problems of the high-volume facilities.

    
    

19. In determining whether SuperAmerica was eligible under FPLRIP with regard to the sites at issue, DEP's program administrator, William Truman, considered only whether SuperAmerica properly reported suspected releases and whether it timely tested the storage systems. Those were appropriate considerations. The basis for denial as to each site is more specifically described below.

    
    

20. On January 19, 1993, counsel for the parties executed a joint stipulation relating to an eighth facility site. In that stipulation, the agency recited its agreement that failure to report suspected releases within one working day of discovery could no longer, standing alone, serve as a basis for denial of restoration coverage eligibility under 1992 amendments to Chapter 376, Florida Statutes, governing FPLRIP. The stipulation also recited:

    
    

    Nothing in this Joint Stipulation shall be construed to mean that violation of the discharge response requirements contained in section 376.3072(2)(d), F.S. (1992) , and implemented in rules 17-769, 17-769.600(15) and (16), Florida Administrative Code is no longer a valid basis for denial of eligibility for restoration coverage on an incident by incident basis under FPLRIP. (Petitioner's Exhibit No. G)

    
    

    Hudson-DEP Facility No. 51-8837646 DOAH Case 92-6871 (Site 8023)

    
    

21. At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system located at 9508 SR 52, Hudson, Pasco County, Florida. The facility consisted of four underground storage tanks (USTs): two 12,000 gallon gasoline USTS; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about March 1988.

22. On August 21, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well five was 3800 ppm, while the OVA reading for monitor well six was 2800 ppm.

    
    

23. On September 16, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four and six. The OVA reading for monitor well four was 1000 ppm, while the OVA reading for monitor well six was 2000 ppm.

    
    

24. On October 15, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 2400, five was 2900 ppm, and the OVA reading for monitor well six was 2200 ppm.

    
    

25. On November 20, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3600, five was 3000 ppm, and the OVA reading for monitor well six was 6900 ppm.

    
    

26. On December 4, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3100, five was 2800 ppm, and the OVA reading for monitor well six was 5100 ppm.

    
    

27. On January 4, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 1100, five was 2400 ppm, and the OVA reading for monitor well six was 2900 ppm.

    
    

28. On March 6, 1992, NEST sampled the monitor wells at the facility. There was product in monitor wells four, five and six. The report also indicates there was an odor in monitor wells five and six. The OVA reading for monitor well six exceeded 10,000 ppm. Elevated readings and odor persisted in well six in April and June.

    
    

29. On July 14, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells five and six. The OVA reading for monitor well four was 1400 ppm, while the OVA reading for monitor well six was 2600 ppm.

    
    

30. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The form was signed by Casey McKenzie. The form indicates the date of discovery was July 14, 1992 (the most recent date on which NEST sampled the monitor wells). The method of initial discovery was a Vapor Reading Report from Monitoring Company. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and Estimated number of gallons lost were both Unknown.

    
    

31. On or about August 26, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. The test report commented that one dispenser had leaks at the nozzle when pumping and the tester had the store put an Out of Order sign on the nozzle.

    
    

32. On or about September 1, 1992, the Department issued an order declaring SuperAmerica site no. 8023 eligible for FPLRIP restoration coverage for the reported discharge. On October 6, 1992, and again on October 21, 1993, the Department issued its amended orders of ineligibility for FPLRIP restoration coverage for the discharge reported.

    Melbourne-DEP Facility No. 05-8840685 DOAH Case 93-4402 (Site 8024)

    
    

33. At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8024) located at 700 West New Haven Avenue, Melbourne, Brevard County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988.

    
    

34. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 4200 ppm to 8500 ppm.

    
    

35. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 1200 ppm to 8000 ppm.

    
    

36. On February 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in wells one, two, five and six. There was an odor in all six wells. The OVA readings for the monitor wells ranged from 2100 ppm to an excess of 10,000 ppm.

    
    

37. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an order in monitor wells one and five. The OVA readings for wells one and five both exceeded 10,000 ppm. Odor and elevated readings persisted in April.

    
    

38. On June 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well six exceeded 10,000 ppm. There was odor in wells one, five and six. The report contains the notation Charlie will check early July. If readings have not declined, he will file DNF.

    
    

39. On July 9, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA readings for the wells ranged from 220 ppm to 7100 ppm. There was odor in wells three, four, five and six.

    
    

40. On July 17, 1992, Brevard County conducted an inspection of the facility. The Natural Resources Management Division of Brevard County is DEP's designated local program for purposes of the FPLRIP. The report noted the excess OVA readings since December. It required a tightness test and investigation into the source of the discharge, and it required a contamination assessment. It also noted that administrative action will be taken on this facility for major violation of 17-761, Florida Administrative Code . . . (Respondent's Exhibit No. 1)

    
    

41. On or about July 21, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF indicates the date of discovery was July 9, 1992 - the date on which NEST sampled the monitor wells. The method of initial discovery was Vapor Readings. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and the "Estimated number of gallons lost were both Unknown.

    
    

42. On or about July 28, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness.

43. On or about July 1, 1993, the Department issued its Order of Ineligibility for FPLRIP restoration coverage for the reported discharge.

    
    

    Cocoa-DEP Facility No. 05-8841566 DOAH Case 93-4402 and 93-4403 (Site 8034)

    
    

44. At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8034) located at 1600 Clear Lake Road, Cocoa, Brevard County, Florida. The facility consisted of three underground storage tanks: two 12,000 gallon gasoline USTs; and one 8,000 gallon UST. The USTs were installed in or about January 1989.

    
    

45. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well number five. There was an odor present in all of the wells. The OVA readings for wells one, two, three, four and six all exceeded 10,000 ppm.

    
    

46. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells one through four and well six. With the exception of well three, the OVA readings for all of the wells exceeded 10,000 ppm.

    
    

47. On February 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 2100 ppm to an excess of 10,000 ppm.

    
    

48. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 4100 ppm to an excess of 10,000 ppm.

    
    

49. On or about March 31, 1992, Brevard County conducted an inspection at site no. 8034. The Pollutant Storage Tank System Inspection Report Form cover sheet prepared by the Brevard County Inspector noted in part:

    
    

    From 12/31/91, OVA readings in all wells have exceeded reportable quantity (>500 ppm); in some instances, 5 wells >10,000 ppm.

    (Respondent's Exhibit No. 2)

    
    

    The Inspection form also noted the facility failed to report Suspected releases within one working day of discovery. The above-referenced Underground Storage Tank Compliance Inspection Form also noted the facility failed to report Confirmed releases (positive response of a release detection device) within one working day of discovery (Respondent's Exhibit No. 2). The form requires a DRF within one day and a tightness test ASAP.

    
    

50. On or about March 31, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Mr. Casey McKenzie. The DNF indicated the date of test or discovery was March 30, 1992. The method of initial discovery was a DER Compliance Audit. The DNF does not contain information concerning the estimated number of gallons lost. The Cause of leak and the Type of pollutant discharged were both Unknown.

    
    

51. On or about April 5, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a tightness certificate. The test report noted no product visible in the monitoring wells, but odor was present.

52. On July 1, 1993 and again on October 21, 1993, the Department issued its order and amended order of ineligibility for FPLRIP restoration coverage for the reported discharge.

    
    

    Sarasota-DEP Facility No. 58-8840985 DOAH Case 93-5734 (Site 8035)

    
    

53. At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8035) located at 4405 North Washington Boulevard, Sarasota, Sarasota County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988.

    
    

54. On September 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well six. There was an odor in all six wells. The OVA reading for wells one, two, three and five all exceeded 1500 ppm.

    
    

55. On October 18, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one through five exceeded 700 ppm.

    
    

56. On November 22, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one, two and five were 2200 ppm, 1200 ppm and 4000 ppm.

    
    

57. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. Product and odor were present in all six wells. The OVA reading for well five was 3100 ppm.

    
    

58. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well five was 3200 ppm.

    
    

59. On February 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well two was 900 ppm.

    
    

60. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product in all six wells and odor present in wells one, two and five. The OVA reading for well two was 900 ppm.

    
    

61. On April 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in wells one, two and three.

    
    

62. On or about April 16, 1992, Sarasota County conducted a routine inspection at the above-referenced facility. The Sarasota County Pollution Control Division is DEP's designated local program agency for purposes of FPLRIP. On the Pollutant Storage Tank System Inspection Report Form the Sarasota County Inspector noted:

    
    

    Monitor wells 1, 2, 3 and 5 had OVA readings exceeding 5000 ppm. - High readings and

    product in wells has been recorded in monthly report by the facility since October, 1991.

    (Respondent's Exhibit 4)

    
    

    The inspector also noted the facility Has recorded high OVA readings in several MW's but not filed DRF. The County Inspector also noted the facility failed to report Any spill, overfill, or other discharge within one working day of discovery and that the facility failed to report Suspected releases within one working day of discovery.

    
    

63. The County Inspector made the following notations on the back of the report:

    
    

    • Monitoring well log indicates excessive contamination

    • free product in all wells

    • high OVA readings as [far] back as October '91

    • no records of any tightness testing in regards to the increase of contamination levels found in wells. DRF on file?

      (Respondent's Exhibit 4)

      
      

64. A letter from Sarasota County dated April 22, 1992, required laboratory analysis of monitor well water within 45 days. The analysis was done by NEST and was provided to Sarasota County on June 29, 1992. On July 7, 1992, Sarasota County received the report and requested that SuperAmerica file a Discharge Reporting Form due to the appearance of excessive contamination.

    
    

65. On or about July 15, 1992, SuperAmerica filed a DNF with the Department. The DNF indicates July 14, 1992 as the Date of receipt of test results or discovery.

    
    

66. On or about August 29, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness.

    
    

67. On or about September 17, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge.

    
    

    Clearwater DEP Facility No. 52-8944446 DOAH Case No. 93-4406 (Site 8036)

    
    

68. At all times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8036) located at 4450 Easy Bay Drive, Clearwater, Pinellas County, Florida. The above- referenced facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1989.

    
    

69. On September 16, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 8000 ppm while the OVA reading for monitor well six was 3000 ppm.

    
    

70. On October 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor present in well five. The OVA reading for well five was 8500 ppm.

71. On January 1, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for wells four and five was 1100 ppm.

    
    

72. On February 6, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in well five. The OVA reading for well five was 400 ppm.

    
    

73. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2800 ppm.

    
    

74. On April 7, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 650 ppm.

    
    

75. On July 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. Casey McKenzie prepared a Discharge Notification Form but did not file it because he believed the local agency had instructed him to hold it pending further investigation.

    
    

76. On or about August 28, 1992, Tanknology Corporation performed tank and line tests at the site and issued a Certificate of Tightness.

    
    

77. On October 12, 1992, Pinellas County conducted a routine inspection at the above-referenced facility. The HRS Pinellas County Health Unit is the agency's designated local agency for FPLRIP. The County Inspector made the following notation on the Inspection Report Form Cover Page:

    
    

    What actions were taken in response to positive responses in one or more monitor wells for the following months - 10/91; 9/91; 11/91; 1/92; 2/92; 3/92; 4/92; 7/92 - provide copy of monitor these monitor reports - take appropriate actions at this time.

    (Respondent's Exhibit 5)

    
    

78. On or about October 27, 1992, SuperAmerica filed the July 13, 1992 DNF with the Department. The DNF reflected a discovery date of July 13, 1992. The DNF indicated the method of initial discovery was a vapor reading from monitor well testing company.

    
    

79. On or about July 1, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge.

    
    

    Englewood-DEP Facility No. 08-8945143 DOAH Case 93-2710 (Site 8038)

    
    

80. At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8038) located at 2710 South McCall Road, Englewood, Charlotte County, Florida. The facility consisted of four USTs: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about September 1989.

    
    

81. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 6200 ppm while the OVA reading for monitor well five was 9800 ppm.

82. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2000 ppm while the OVA reading for monitor well five was 1100 ppm.

    
    

83. On February 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1500 ppm.

    
    

84. On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1100 ppm while the OVA reading for monitor well five was 5900 ppm.

    
    

85. An Interoffice Memo dated April 24, 1992, from Mr. McKenzie to the manager of store no. 8038 provided in part:

    
    

    The monthly test of your store's monitor wells revealed the following results which need to be addressed:

    
    

    Monitor well number 5 showed vapor readings exceeding 5900 PPM.

    This is a reportable quantity to the DER. No previous results have show [sic] levels this high. (Petitioner's Exhibit 38C)

    
    

    This latter assertion is obviously in error given the fact that in December, 1991, the OVA reading for well four was 6200 ppm while the OVA reading for well five was 9800 ppm.

    
    

86. On May 12, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2100 ppm while the OVA reading for monitor well five was 3000 ppm.

    
    

87. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2500 ppm.

    
    

88. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm.

    
    

89. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with DEP. The DNF was signed by Casey McKenzie. The DNF indicated the Date of Test or discovery was July 20, 1992. The method of initial discovery was Vapor Reading Report from Monitoring Reports. The estimated number of gallons lost and the cause of leak were both unknown.

    
    

90. On or about September 1, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness.

    
    

91. On September 4, 1992, Casey McKenzie wrote to DEP's South District Office with regard to the DNFs filed for Englewood Facility and the Punta Gorda Facility. With regard to SuperAmerica's failure to timely report the releases, the letter provided in part:

    
    

    In your letter, you refer to the elevated OVA readings recorded several months ago but not reported. This was simply an error on my part. SuperAmerica began utilizing an

    outside contractor to perform monitor well sampling at these locations in December.

    Prior to that, we performed the monthly sampling ourselves using the sight and smell method appropriate for ground water well monitoring...

    
    

    I was not aware of the thresholds for reporting of vapor levels. I was aware we had no sheen or odor present. When our contractor and I finally discussed the importance of the vapor readings and the ramifications involved, we immediately filed Discharge Notification Forms for suspected releases. . . Any errors made in reporting were due to lack of knowledge on my part, ...

    (Respondent's Exhibit 3)

    
    

    Mr. McKenzie's assertion of ignorance cannot be reconciled with the statements set forth in his Interoffice Memo dated April 24, 1992. See paragraph 85, above.

    
    

92. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge.

    
    

    Punta Gorda-DEP Facility No. 08-9045849 DOAH Case 93-2711 (Site 8039)

    
    

93. At all material times, SuperAmerica was the owner/operator of its petroleum storage tank system (site no. 8039) located at 3035 Tamiami Trail, Punta Gorda, Charlotte County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about January 1990.

    
    

94. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product in well four. There was an odor in all of the wells. The OVA readings for wells one, three, four, five and six all exceeded 10,000 ppm.

    
    

95. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well two was 600 ppm; well three was 4500 ppm; well four was 900 ppm; and well five was 2500 ppm.

    
    

96. On February 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well one was 6000 ppm; wells two and three were in excess of 10,000 ppm; well four was 4100 ppm; and well five was 3800 ppm.

    
    

97. On March 9, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well two was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3000 ppm.

    26

98. On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 1500 ppm while the OVA reading for well three was 550 ppm.

    
    

99. On May 14, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 2200 ppm while the OVA reading for well three was 1100 ppm.

    
    

100. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in well two. The OVA reading for well two was 7300 ppm; well three was 1500 ppm; and well four was 1100 ppm.

     
     

101. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well one was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3100 ppm.

     
     

102. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Casey McKenzie. The DNF was dated July 24, 1992. However, the DNF did not include the information as to the date of test or discovery of the discharge. The cause of the leak and the estimated number of gallons lost were both unknown. The DNF indicated the method of discovery was a Vapor Reading Report from Monitoring Company.

     
     

103. On or about August 27, 1992, the agency conducted an inspection at Site 8039. During the inspection, no obvious odors were detected in the monitoring wells, indicating that there may have been errors in the original OVA readings. The agency directed SuperAmerica to have groundwater samples analyzed. The analysis was provided to the agency on October 27, 1992.

     
     

104. On or about August 27 and September 4, 1992, Tanknology Corporation International performed tank and line tests at the sight and issued certificates of tightness.

     
     

105. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge.

     
     

     North Ft. Myers-DEP Facility No. 36-8631544 DOAH Case 93-4405 (Site 8006)

     
     

106. At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8006) located at 4600 Bayline Drive, North Ft. Myers, Lee County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gasoline UST; and one 8,000 gallon diesel UST. The tanks were installed on or about April 1987.

     
     

107. In or about November 1992, SuperAmerica hired Environmental Science and Engineering, Inc. (ESE) to perform an environmental audit in conjunction with SuperAmerica's planned sale of the property.

     
     

108. On January 7, 1993, ESE was performing soil borings in the tank farm and pump island areas. Soil samples were being analyzed for the presence of

     excessive contamination, if any. Those borings were made with a four-inch diameter hand auger. At boring SB-2, near the easternmost fuel island, the ESE employee cracked the fiberglass midgrade unleaded product line with the hand auger causing an underground discharge.

     
     

109. SuperAmerica discovered the discharge on January 16, 1992 and filed a Discharge Reporting Form on that same date.

     
     

110. On July 1, 1993, DEP issued its Order denying SuperAmerica eligibility for restoration coverage.

     
     

     CONCLUSIONS OF LAW

     
     

111. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

     
     

112. Section 376.3072, Florida Statutes, creates the Florida Petroleum Liability Insurance and Restoration Program and provides for its administration by DEP (previously, the Department of Environmental Regulation). As applicant for coverage under the program, SuperAmerica bears the burden of proving its eligibility and entitlement. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981)

     
     

113. Section 376.3072, Florida Statutes, was substantially revised by the 1992 Legislature and the revisions became effective July 1, 1992, in the midst of the events described above, but after most of the violations occurred.

     
     

114. The amendments to Section 376.3072, Florida Statutes, are not retroactive. Hughes Supply, Inc. v. Department of Environmental Regulation, 622 So.2d 1056 (Fla. 5th DCA 1993).

     
     

115. Section 376.3072, Florida Statutes (1991), provides in pertinent part:

     
     

     (3)(a) ELIGIBILITY FOR PARTICIPATION - Any

     owner or operator of a petroleum storage system, as defined in s. 376.301, [who is subject to and in substantial compliance with this chapter and applicable rules relating to petroleum storage systems or petroleum contamination site cleanup] adopted pursuant to s. 376.303 with respect to a particular location is eligible to participate in the Florida Petroleum Liability Insurance and Restoration Program for that location.

     
     

     1. The failure of any owner or operator of a storage system containing petroleum products to maintain compliance with this chapter and rules relating to stationary tanks adopted pursuant to s. 376.303 at any location will result in the cancellation of liability insurance provided through the program and eligibility for the restoration program for that location. Any owner or operator of a facility that receives a notice of cancellation for the liability insurance

        or restoration program that seeks reinstatement for that facility shall pay a reinstatement inspection fee of $200 per facility to be deposited in the Inland Protection Trust Fund. [For purposes of this paragraph, the department may, in its discretion, waive minor violations of this chapter or of rules adopted pursuant to s.

        376.303], including, without limitation, violations of provisions relating to the form of inventory or reconciliation records or violations of registration requirements, or other violations [if the owner or operator can demonstrate that he is making a good faith effort to achieve and maintain compliance and has taken prompt action to correct] any violation, as required by the department.

        (Emphasis added)

        
        

116. Section 376.3072, Florida Statutes (1992), provides in pertinent part:

     
     

     (2)(b)

     3. To be eligible, the facility shall be in compliance with department rules as demonstrated at the most recent inspection conducted by the department or the insured demonstrates that any necessary corrective actions identified at the most recent inspection have been corrected as ordered by the department. Should a re-inspection of the facility be necessary to demonstrate compliance, the insured shall pay an inspection fee not to exceed $500 per facility to be deposited in the Inland Protection Trust Fund, in addition to any noncompliance fee which may be assessed

     
     

     (2)(d) In order for an eligible owner or operator to participate in the restoration program, the owner or operator must, upon discovery of evidence of a discharge of petroleum product at a facility, drain and remove from service the suspected petroleum storage system, if necessary, [and complete initial remedial action as defined by department rules].

     (Emphasis added)

     
     

117. It is clear that the legislature in both versions, 1991 and 1992, intended for the facilities and the Department to move expeditiously in order to contain discharges of petroleum products. Section 376.30(3), [Florida Statutes] (1991), authorizes the Department to require the [prompt] containment and removal of such pollutants. Section 376.305(1), [Florida Statutes] (1991), provides that any person discharging pollutants as prohibited by Section 376.30

     - 376.319, [Florida Statutes] (1991), [shall immediately] undertake to contain, remove and abate the discharge to the satisfaction of the Department. It is

     clear that taking immediate action in response to a discharge or suspected discharge is a critical element of substantial compliance. Those sections of Chapter 376, [Florida Statutes] were not amended in 1992.

     
     

118. The agency implemented the legislative intent in its rules found in Chapters 62-761 and 62-769 (formerly 17-761 and 17-769), [Florida Administrative Code]. Chapter 62-761, [Florida Administrative Code], provides standards for the construction, installation and maintenance of underground storage tank systems and is designed to bring about compliance with the requirements of Chapter 376, [Florida Statutes]. Rule 62-761.200, [Florida Administrative Code], contains the following definitions which are relevant to the resolution of this proceeding:

     
     

     (10) Discovery means either actual knowledge or knowledge of facts which could reasonably lead to actual knowledge of the existence of a discharge.

     * * *

     1. Release means discharge as that term is defined in Chapter 376, [Florida Statutes].

     2. Release detection means a method of determining whether a discharge of a regulated substance has occurred from the storage tank system into the environment or into the interstitial space between a storage tank system and its secondary containment.

     
     

     Section 376.301(4), [Florida Statutes] (1991), and Section 376.301(6), [Florida Statutes] (1992), provide in part:

     
     

     Discharge includes, but is not limited to, any spilling, leaking, seeping, pouring, misapplying, emitting, emptying or dumping of any pollutant which occurs and which affects land and the surface ground waters of the state . . .

     
     

119. Rule 62-761, [Florida Administrative Code], establishes the applicable reporting requirements with regard to releases from petroleum storage systems and provides in pertinent part:

     
     

     17.761.460 Reporting. The owner or operator shall report the following items to the Department and , if the storage tank system is in a county with a locally administered program under contract with the Department, to that locally administrated program on Form 17-761.900(1):

     * * *

     (3) Suspected releases within one working day of discovery. Suspected releases shall include:

     * * *

     1. Monitoring results from a release detection method required under Rule 62- 761.600 through 62-761.640, [Florida

     Administrative Code], . . . that indicate a release may have occurred, including but not limited to the positive response of a leak detection device, a significant increase in contamination levels above background, a sheen, layer or odor of regulated substances in a ground water sample, . . . [or [v]apor levels in excess of those allowed by Rule 17- 761.640(2), F. A. C.] . . .

     (Emphasis added)

     
     

120. Rule 62-761.600, [Florida Administrative Code], requires an owner or operator of a storage tank system provide for a method of release detection.

     The rule also requires that a release detection system be monitored every thirty

     (30) days for evidence of a release. Rule 62-761.610, [Florida Administrative Code], authorizes the use of a network of at least four monitoring wells located in a tank excavation as a system of release detection.

     
     

121. Rule 62-761.640, [Florida Administrative Code], which established test methods for leak detection, provides in pertinent part:

     
     

     17-761.640 Test Methods for Release Detection. Release detection for tanks and, if applicable, integral piping used to meet the requirements of this chapter shall consist of one of the following methods:

     (2) Vapor monitoring. Vapor monitoring may be conducted using vapor detection wells placed within the tank excavation backfill, provided:

     * * *

     (e) The vapor detection wells are designed, operated and maintained to detect;

     1. [A vapor concentration of 500 parts per million total petroleum hydrocarbons or less for storage tank systems containing gasoline or equivalent petroleum products];

     2. [A vapor concentration of 50 parts per million total petroleum hydrocarbons or less for storage tank systems containing kerosene, diesel fuel or other equivalent petroleum products];

     (Emphasis added)

     
     

122. Rule 62-769.600, [Florida Administrative Code], contains the eligibility requirements for participation in the restoration program. Rule 62- 769.600(14), (15) and (16), Florida Administrative Code, provide as follows:

     
     

     62-769.600 Restoration Program

     
     

     1. The participating owner or operator shall maintain compliance with the rules of the Department for stationary tanks established pursuant to Section 376.303, F. S., including Chapters 17-61, 17-761 and 17- 762, F. A. C. [In order for any individual incident to be covered under the restoration

        program, the program, the participating owner or operator shall file a Discharge Reporting Form with the Department within 24 hours of discharge. Restoration coverage will be determined on an incident-by-incident basis].

        
        

     2. In order to eligible for restoration program, the participating owner or operator shall within 3 days of discovery of a discharge, [test or empty] the petroleum storage system or leaking component of product. If the system is found to be leaking, the owner or operator shall within 3 days remove the petroleum storage system from service [until it has been tested], and if found to be leaking, either repaired or replaced.

        
        

     3. In order to be eligible for the restoration program, the participating owner or operator shall within 3 days of discovery of a discharge, take steps to obtain cleanup services, and within 30 days of discovery of a discharge, initiate recovery of free product at the site. Recovery of all free product shall be completed in accordance with the cleanup criteria rule established pursuant to Section 376.3071, F. S., Chapter 17-770, F. A. C.

     (Emphasis added)

     
     

123. For the seven sites with common issues, over an extended period, and prior to the effective date of the 1992 amendments, SuperAmerica, though its personnel, failed to report suspected discharges and failed to obtain tank and line tests within the periods prescribed by the above rules. Casey McKenzie's alleged ignorance of the implications of the OVA readings is belied by his written notice to his store manager. Moreover, his ignorance or alleged reliance on discussions with local agencies are not valid excuses for noncompliance. . . . [N]ot only must an owner/operator comply with the rules, he must know them himself and cannot rely on others to guide him through this maze of regulations. Hughes, supra, p. 1060.

     
     

124. Not one of the notices of denial of eligibility for the seven sites relied alone on failure to report a single suspected release within one working day. In all cases, there were a series of suspected releases that were not timely reported; there were delays in obtaining the required tank tests.

     
     

125. It would be contrary to the intent of the restoration program to accept SuperAmerica's argument that substantial compliance may be found when an operator later complies with all requirements imposed by the agency or the facility ultimately passes a leak test. Alacrity of initial response is critical to the success of restoration, as acknowledged in the legislation describing the program in 1991 and in 1992. SuperAmerica did not substantially comply with the law and rules with regard to initial response. It failed over a period of many months to report to DEP or to obtain tank tests.

126. The agency's stipulation in a single case referenced in paragraph 20, above, is not controlling. Too little is known of the circumstances surrounding the incident in that case. The stipulation itself recites that failure to report within one working day cannot be the sole basis for denial. The stipulation was entered prior to the decision in Hughes, supra, which upheld the agency's determination that the 1972 amendments were not retroactive. And the stipulation acknowledges that eligibility must be determined on an incident by incident basis.

     
     

127. The same considerations that promote prompt reporting requirements also promote a more liberal interpretation of the law with regard to the Ft. Myers site no. 8006. No evidence was presented with regard to this site at hearing and the only cognizable facts are those stipulated by the parties. The parties disagree as to whether the discharge at issue was an incident under FPLRIP.

     
     

128. Incident, as described in Section 376.3072(3)(c), [Florida Statutes] (1992), is

     
     

     the reporting of any sudden or gradual discharge of petroleum product arising from operating a storage system containing petroleum product that results in a need for restoration or results in bodily injury or property damage neither expected nor intended by the petroleum storage system owner.

     
     

129. The term arising from operating a storage system... is the basis for dispute. It is uncontroverted that the accidental release occurred during an environmental audit occasioned by SuperAmerica's intended sale to another operator. The accident was a direct consequence of the operation of the storage system no less than an accident occurring when a tanker accidently spills product while filling a tank.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Environmental Protection enter its final order denying eligibility to SuperAmerica in cases nos. 92-6871, 93-2710, 93- 2711, 93-4402, 93-4403/93-4404, 93-4406 and 93-5734; granting eligibility in case no. 93-4405; and dismissing case no. 93-2712 (voluntary dismissal).

DONE and ENTERED this 6th day of March, 1996, in Tallahassee, Florida.

MARY CLARK

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 6th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER

The findings of fact proposed by both parties, or stipulated by the parties, have been adopted in whole or in substance, except for the following:

SuperAmerica's Proposed Findings of Fact.

Rejected as unnecessary or immaterial:

11-17, 20-23, 26-29, 39-40, 48-52, 59-66, 72-75, 79-87, 90-

92, 94-96, 98, 101, 104, 106-107, 109-147, 166, 173,

181,183, 203, 211-212, and 220.

Rejected as contrary to the weight of evidence or unsupported by credible evidence:

97, 108, 149-155.

DEP's Proposed Findings of Fact.

These findings have all been adopted in substance. Additional findings have been made however, to explain the background and include facts common to all of the sites.

COPIES FURNISHED:

Douglas Beason, Esquire Department of Environmental

Protection

2600 Blair Stone Road, Suite 654

Tallahassee, Florida 32399

Kenneth Plante General Counsel

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental

Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Gary M. Pappas, Esquire

POPHAM, HAIK, SCNOBRICH and KAUFMAN, LTD.

4000 International Place

100 Southeast Second Street Miami, Florida 33138

James M. Ellerbe, Esquire SuperAmerica Group Law Department 3499 Dabney Drive

Lexington, Kentucky 40509

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 518837646, (Hudson - Site No. 8023),

Petitioner,

vs. OGC Case No. 92-1994

DOAH Case No. 92-6871

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 08 89 45143, (Englewood - Site No. 8038),

Petitioner,

vs. OGC Case No. 93-1680

DOAH Case No. 93-2710

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 08 90 45849, (Punta Gorda - Site No. 8039),

Petitioner,

vs. OGC Case No, 93-1681

DOAH Case No. 93-2711

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 11 86 29447, Petitioner,

vs. OGC Case No. 93-1682

DOAH Case N0. 93-2712

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 05 88 40685, (Melbourne - Site No. 8024),

Petitioner,

vs. OGC Case No. 93-2786

DOAH Case No. 93-4402

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 05 88 41566, (Cocoa - Site No. 8034),

Petitioner,

vs, OGC Case No. 93-2787

DOAH Case No. 93-4403

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 05 88 41566, (Cocoa - Site No. 8034),

Petitioner,

vs. OGC Case No. 93-2788

DOAH Case No. 93-4404

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 36 86 31544, (Hudson - Site No. 8006),

Petitioner,

vs. OGC Case No. 93-2789

DOAH Case No. 93-4405

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 52 89 44446, (Hudson - Site No. 8036),

Petitioner,

vs. OGC Case No. 93-2790

DOAH Case No. 92-4406

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/ SUPERAMERICA OF FLORIDA, INC.,

DER Facility No. 58 88 40985, (Hudson - Site No. 8035),

Petitioner,

vs. OGC Case No. 93-3775

DOAH Case No. 93-5734

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/

FINAL ORDER

On March 6,1996, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted her Recommended Order to the Respondent, Department of Environmental Protection (hereafter "Department"). Copies of the Recommended Order were simultaneously served on the Petitioner SuperAmerica of Florida, Inc. (hereafter "SuperAmerica"). A copy of the Recommended Order is attached hereto as Exhibit A.

On March 29, the Department filed one Exception to the Recommended Order. Because this Exception was not timely filed, the Department also filed a Motion for Leave to file this exception. The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

At issue in these cases is whether SuperAmerica is eligible for restoration benefits under the Florida Petroleum Liability and Restoration Insurance Program (FPLRIP), Section 376.3072, Florida Statutes (F.S.)(1992), following petroleum

discharges at several sites around the state. The Department denied FPLRIP coverage at each of these sites, and SuperAmerica timely filed challenges in accordance with Section 120.57, F.S. The petitions were consolidated for purposes of hearing. A formal administrative hearing was held in these consolidated cases before DOAH Hearing Officer Mary Clark on November 6,1995, in Tallahassee, Florida. Proposed recommended orders were timely filed by both parties, and SuperAmerica also filed a memorandum of law in support if its proposed recommended order, after the completion of the formal hearing.

The Hearing Officer found that SuperAmerica had failed to report suspected discharges and failed to obtain tank and line tests within the periods required under Department rules at seven of the sites at issue, and recommended that the Department enter a Final Order denying FPLRIP eligibility at these sites. No exceptions were filed by either party regarding these findings or recommendations. The Hearing Officer also found that SuperAmerica had complied with all eligibility requirements at the Ft. Myers site (Site 8006), and that the discharge at that site was an "incident" eligible for restoration coverage. Her recommendation that the Department enter a Final Order granting coverage for this site is the subject of the single exception filed in this case.

Department's Exception

The Department filed its exception 23 days after the Hearing Officer's Recommended Order was rendered. Rule 62-103.200(1), Florida Administrative Code, states that exceptions may be filed within 15 days after the Recommended Order is filed with the clerk of DOAH, and that exceptions not filed within 15 days "shall be rejected." However, this requirement is not jurisdictional, and the Department may consider late-filed exceptions upon a showing of excusable neglect by the party filing the exceptions. Hamilton County Board of County Commissioners v. State of Florida Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991). The Department filed a Motion for Leave to file its late exception which purported to demonstrate excusable neglect on the part of counsel.

A determination that an attorney's actions constitute excusable neglect is at least partially based upon a factual determination, and thus cannot be made based solely on a Motion. "The requirement that the defendant demonstrate excusable neglect requires more than a conclusionary statement. A party... must set forth the facts explaining or justifying the mistake or inadvertence by affidavit or other sworn statement." B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3rd DCA 1981); Schauer v. Coleman, 639 So.2d 637, (Fla. 2nd DCA 1994).

In this case, counsel for the Department failed to include an affidavit or any other sworn statement with the Motion. For this reason alone, I am unable to determine that the late filing was due to excusable neglect, and must therefore reject the exception. Even if the Motion had been accompanied by the appropriate sworn statement, however, I would still find no basis of excusable neglect.

Counsel for the Department stated in his Motion that the reason for the late filing of exceptions was that he had "misconstrued" the Recommended Order and thought that the Hearing Officer had recommended denial for all of the sites at issue. Upon being made aware of his mistake, he promptly filed the exception. Counsel concedes that the Recommended Order very clearly recommends that the Department grant eligibility for Site 8006.

There is no clear test far determining when an attorney's actions constitute excusable neglect, and each case must be decided on its specific facts. Generally, however, neglect of counsel amounts to excusable neglect only where it is the result of generally accepted practices and amenities among the local bar. BMW of North America. Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985). Since that is not the case here, I find that the untimely filing of the Department's exception in this case was not the result of excusable neglect.

For this reason, in addition to the fact that no sworn statement was included with the Motion, I reject the exception as untimely.

CONCLUSION

Under Section 120.57(1)(b)10, F.S., a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. While this same statute allows parties to file exceptions to the Recommended Order, there is no provision which requires the agency to rely exclusively on such exceptions before rejecting or modifying conclusions of law or interpretations of rules and statutes. Although I am not allowed to consider the Department's exception in this case, I must still determine whether the Hearing Officer's conclusions are correct based upon the evidence and arguments in the record.

In the case of Site 8006, the parties stipulated, and the Hearing Officer agreed, that there were no factual issues in dispute. The only legal issue in dispute was:

Whether a discharge caused by a contractor drilling into a petroleum product supply line during a site assessment being conducted prior to the transfer of ownership of the site arises from "operating a storage system containing petroleum product" such that the discharge is an "incident" eligible for restoration

coverage under FPLRIP.

In order to be eligible for restoration coverage, a petroleum discharge must be considered an "incident" of inland contamination in accordance with Section 376.3072(2), F.S, "Incident" is defined in Section 376.3072(3)(c), F.S., as "any sudden or gradual discharge of a petroleum product arising from operating a storage system containing petroleum product that results in a need for restoration . . . neither expected nor intended by the petroleum storage system owner or operator." The Hearing Officer concluded that the discharge in this case "was a direct consequence of the operation of the storage system no less than an accident occurring when a tanker accidentally spills product while filling a tank," and that the discharge was therefore an "incident" eligible for restoration coverage.

In its Memorandum of Law, SuperAmerica argued that performing a site assessment during a property transfer has become a standard business practice, and that "the purchase and sale of a gasoline service station or convenience store is as much a part of the store owner's business as the everyday sale of gasoline at the store." (p. 6) While these arguments may well be true, they fail to address the central issue here, which is whether or not the discharge arose from "operating a storage system."

Both the Hearing Officer and SuperAmerica apparently interpret the statute to mean that any activity which is part of normal business practices and which

results in a discharge from a petroleum storage system would be considered an incident. Such an interpretation essentially presumes that the phrase "arising from operating a storage system containing petroleum product" is meaningless.

Case law on statutory interpretation clearly provides that operative language in a statute many not be regarded as superfluous, and that statutes must be construed to give meaning to all words and phrases contained therein. Terrinoni

1. Westward Ho!, 418,So.2d 1143 (Fla. 1st DCA 1982).

   
   

   The Department's argument, both in the letter denying eligibility for Site 8006 and in its Proposed Recommended Order, is that an incident would only arise from actions which arise directly from the actual operation of the petroleum storage system. Since the word "operate" is not defined in this statute or in relevant Department rules, it is reasonable to use the word's plain and ordinary meaning. Southeastern Fisheries Ass'n v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984). The dictionary definition of "operate" is "to function effectively: work," or "to run or control the functioning of." The American Heritage Dictionary, 2d college ed., p. 871,1991. Function is defined as "the action for which a. . . thing is particularly fitted." Id. at p. 539. In this case, the "thing" is the storage system, while the action for which it is fitted is storing petroleum product. The plain and ordinary meaning of the phrase "arising from operating a storage system" would include activities needed for the proper functioning of a storage system, but would not include activities which are merely related to the operation of any associated business.

   
   

   The Hearing Officer and SuperAmerica would interpret this statute broadly to include those activities arising from the normal operation of a business which operates a storage system. Hypothetically this could include a situation where a contractor accidentally punctured a tank while digging postholes for an advertising sign, installing a septic tank, or expanding the building (all standard business practices). Such an interpretation either renders the phrase "operating a storage system" superfluous, or gives it a meaning which is neither plain nor ordinary.

   
   

   In any case, the Department has been charged by the Legislature with interpreting and enforcing Chapter 376, F.S. It is well established that the Department's interpretation of a statutory term is entitled to great weight, even if it is not the only possible interpretation of that term. PW Ventures, Inc. v. Nichols, 533 So.2d 281 (Fla. 1988); Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). I find that the Department's interpretation of the term "incident" is a reasonable and permissible interpretation, and that restoration coverage should be limited to discharges which are caused by actions directly related to the actual functioning of a petroleum storage system. In this case it is clear that an environmental audit performed prior to the sale of property, while it is a laudable activity, is not directly related to the actual functioning of the storage system. For this reason, I reject the Hearing Officer's Conclusion of Law #129, and find that Site 8006 is not eligible for restoration coverage under FPLRIP.

   
   

   It is therefore ORDERED:

   
   

   1. The Recommended Order of the Hearing Officer is adopted and incorporated by reference herein, except where specifically noted regarding Site 8006.

      
      

   2. Eligibility for restoration coverage under FPLRIP for all sites in this case is hereby DENIED.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date of this Order is filed with the clerk of the Department.

DONE AND ORDERED this 19th day of April, 1996, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Kenneth J. Plante for VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT FILED, 0N THIS DATE, PURSUANT TO S 120.52 FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT 0F WHICH IS HEREBY ACKNOWLEDGED.

Kathy C. Carter 04/19/96

Clerk Date

CERTIFICATE OF SERVICE

HEREBY CERTIFY that a copy of the foregoing Final Order has been sent via United States Postal Service to:

Gary M. Pappas, Esquire POPHAM, HIAK, SCNOBRICH and KAUFMAN, LTD.

4000 International Place

100 Southeast Second Street Miami, Florida 33138

James Ellerbe, Esquire SuperAmerica Group Law Department 3499 Dabney Drive

Lexington, Kentucky 40509

Ann Cole, Clerk and

Mary Clark, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 and by hand delivery to:

W. Douglas Beason, Esquire

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000 this 22nd day of April, 1996

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

TERRELL WILLIAMS

Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

Telephone 904 1488-9314

Docket for Case No: 92-006871

Orders for Case No: 92-006871