STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1387

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on May 17, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul H. Chipok, Esquire

Assistant County Attorney Orange County Attorney's Office

Orange County Administration Center Post Office Box 1393

Orlando, Florida 32802-1393

For Respondent: W. Douglas Beason

Assistant General Counsel

Department of Environmental Protection 2600 Blairstone Road

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

As stipulated by the parties, the issue for determination is whether Orange County is eligible for participation in the Abandoned Tank Restoration Program (ATRP) for the Orange County Courthouse facility, as provided in rule 17- 769.800(2)(a), F.A.C. and rule 17-769.800(3)(a), F.A.C.

PRELIMINARY STATEMENT

On October 2, 1992 Orange County received a letter from the Florida Department of Environmental Regulation (DER) stating that the County was ineligible for participation in the ATRP for tanks removed from the county courthouse.

After extensions granted by the agency, Orange County filed its request for formal hearing, and the case was referred to the Division of Administrative Hearings.

A thorough prehearing stipulation disposed of the material factual issues.

Each party presented one witness at hearing, and all exhibits (A-F) were admitted by stipulation.

After the hearing, each party submitted a proposed recommended order and Orange County submitted a memorandum of law. The findings of fact as stipulated are adopted here.

FINDINGS OF FACT

1. The applicant/Petitioner, Orange County (county) maintains a facility at the Orange County Courthouse at 65 Central Avenue, Orlando, Florida.

   
   

2. In May 1992 the county removed from the facility two steel diesel fuel tanks, 12,000 gallons and 1,000 gallon capacity. These underground storage tanks had been used until approximately 1987 for the hot water and heating system at the courthouse. Groundwater contamination was detected during removal and DER was appropriately informed.

   
   

3. Approximately one week after removal, a new tank and piping system was installed at the same site for an entirely different purpose: storage of diesel fuel for the facility's emergency generator.

   
   

4. The standby emergency generator is required by various city, state and county codes for emergency power to the fire pump and for emergency lighting for the courthouse.

   
   

5. On or about June 23, 1992 the county filed its ATRP application requesting financial assistance with regard to cleanup of the groundwater contamination from the prior storage tanks.

   
   

6. The application was denied based on DER's determination that maintenance of the new tanks precluded the county's eligibility under rules governing the program.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S. Notwithstanding the parties' stipulation as to the material facts they seek a recommendation on the remaining issues.

   
   

8. Section 376.305(7), F.S. (1992), provides in pertinent part:

   (7) The Legislature created the Abandoned Tank Restoration Program in response to the need to provide financial assistance for cleanup of sites that have abandoned petro- leum storage systems. For purposes of this subsection the term "abandoned petroleum storage system" shall mean any petroleum storage system that has not stored petroleum products for consumption, use, or sale since March 1, 1990. The department shall establ- ish the Abandoned Tank Restoration Program to facilitate the restoration of sites contamin- ated by abandoned petroleum storage systems.

   (a) To be included in the program:

   1. An application must be submitted to the department by June 30, 1992, certifying that the system has not stored petroleum products for consumption, use, or sale at the facility since March 1, 1990.

   2. The owner or operator of the petroleum storage system when it was in service decided not to continue in business for consumption, use, or sale of petroleum products at that facility.

   3. The site is not otherwise eligible for the cleanup programs pursuant to s. 376.3071 or 376.3072.

   * * *

   
   

9. Rule 17-769.800, F.A.C. adopted by DER to implement the ATRP, provides these eligibility requirements:

   
   

   1. Eligibility for the Abandoned Tank Rest- oration Program.

      1. To be eligible for the Abandoned Tank Restoration Program, the current owner or operator of a property which contains or con- tained an abandoned storage system must:

   1. Demonstrate that the owner or operator of the petroleum storage system when it was in service decided not to continue in busi- ness for consumption, use, or sale of petro- leum products at that facility.

   2. Have documented contamination from the abandoned petroleum storage system;

   3. Have not stored petroleum products for consumption, use or sale at that facility after March 1, 1990;

   4. Have properly closed the abandoned petro- leum storage system; and

   5. Submit an application to the Department on Forms 17-769.900(3) and (4), F.A.C., which shall be postmarked on or before June 30, 1992.

   (emphasis added)

   
   

10. The county advances several creative theories as to why it is eligible for the program. First, it claims that the reason it still maintains a storage system is that such is mandated by various codes governing public buildings.

    
    

11. It claims that the old system was for another purpose and is now "abandoned"; and finally, it claims that the new purpose does not constitute "consumption, use or sale".

    
    

12. While the county's position is otherwise worthy, its circumstances still remove it from eligibility under the applicable rules.

    
    

13. The requirements for an emergency generator are simply irrelevant. Neither the law nor rules address the basis for continuing a system in place. No exemption is provided when the system is required.

14. The new purpose for the system is also irrelevant. The new system, like the old, still serves as storage of a petroleum product.

    
    

15. Finally, the county's adoption of a "plain meaning" of the terms, "consumption, use or sale" is disingenuous.

    
    

16. It argues that because the storage is for emergency purpose only -- hopefully, rarely if ever, to be called to service -- the purpose is not for consumption or use, but rather preservation.

    
    

17. This argument ignores the fact that if it were not intended for use, the storage would not be needed. Its availability for use is its very raison d'etre. The code requirements for the system are met only if the system exists for use or consumption.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the agency enter its Final Order denying Orange County's application for financial assistance through the Abandoned Tank Restoration Program.

DONE AND RECOMMENDED this 9th day of August, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993.

COPIES FURNISHED:

Paul H. Chipok

Assistant County Attorney Orange County Attorney's Office

Orange County Administration Center Post Office Box 1393

Orlando, Florida 32802-1393

W. Douglas Beason Assistant General Counsel

Department of Environmental Protection 2600 Blairstone Road

Tallahassee, Florida 32399

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blairstone Road

Tallahassee, Florida 32399

Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blairstone Road

Tallahassee, Florida 32399

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 10 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: 93-001387

Orders for Case No: 93-001387