STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUDDATH VAN LINES, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 93-2604

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to Notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 21, 1993, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Michael E. Demont

Lee S. Haramis

Post Office Box 1559 Jacksonville, Florida 32201-1559

For Respondent: Jefferson M. Braswell

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

Whether the Petitioner, Suddath Van Lines, Inc., is eligible for participation in the Abandoned Tank Restoration Program (ATRP) pursuant to 376.305(7), Florida Statutes (Supp. 1992), for facility no. 168630181.

PRELIMINARY STATEMENT

The Petitioner, Suddath Van Lines, Inc., filed an application for eligibility in the Abandoned Tank Restoration Program (ATRP) with the Department of Environmental Regulation, now known as the Department of Environmental Protection, (Department) on October 30, 1990. On February 24, 1993, the Department issued a letter denying Petitioner's eligibility for the ATRP. On March 16, 1993, the Petitioner filed a petition with the Respondent for an administrative hearing in accordance with Section 120.57(1), Florida Statutes.

The Petitioner claimed that it was eligible for admission into the ATRP under the criteria of Section 376.305(7), Florida Statutes (Supp. 1992), because the petroleum storage system which caused the excessive contamination had not stored petroleum products for consumption, use, or sale after March 1, 1990.

On April 10, 1993, the petition was sent to the Division of Administrative Hearings and assigned DOAH Case Number 93-2604. The final hearing was held on September 21, 1993, in Jacksonville, Florida. Petitioner presented the testimony of Robert J. Price, Executive Vice President for Suddath Van Lines; Billye K. Thoma, Director of Risk Management and Customer Service for Suddath Van Lines; and Grethel Clayton Fields, III, Vice President of Operations for Ray Treadwell Building Contractors, Inc. The Department did not call any witnesses. Petitioner's Exhibit Nos. 1-13 were introduced into evidence. References to the transcript will be indicated by a "T." with the appropriate page number within parenthesis.

Both parties submitted proposed orders which were read and considered.

Appendix A states which of the findings were adopted, and which were rejected and why.

1. Suddath is a Florida corporation and an Interstate Commerce Commission regulated common carrier primarily engaged in the business of providing moving services. In connection with its business operations, Suddath utilizes tractor- trailer trucks to perform its function as a moving and storage company. Suddath operates 15 moving and storage centers throughout the State of Florida and the United States. (Tr. 36-37).

   
   

2. Suddath is not, nor has it ever been, engaged in either the business of selling petroleum products to third parties or of storing petroleum or fuel as a means of deriving income. (Tr. 36-37).

   
   

3. In connection with its business operations, Suddath constructed a moving and storage center on real property which it owned at 525 Stevens Street, Jacksonville, Duval County, Florida. Construction of these premises in 1960 included underground fuel tanks. (Tr. 35-37)

   
   

4. Suddath stored and used fuel from its underground petroleum storage system at 525 Stevens Street to refuel its trucks on site for the convenience and efficiency of its operations. (Tr. 36).

   
   

5. The dispensing of fuel from the underground storage tanks at 525 Stevens Street was not a profit center, and costs associated with fueling operations from the underground storage tanks were not passed on to Suddath's customers. (Tr. 36-37).

   
   

6. The 525 Stevens Street facility was duly registered with the DER as facility #168630181. (Tr. 39).

   
   

7. In March of 1988, Suddath was informed in writing by the DER that the underground storage tanks at 525 Stevens Street were in violation of certain DER regulations and had to be abandoned and closed. (Tr. 39-40, Ex. 1)

   
   

8. In March or April of 1988, Suddath made the decision to abandon the underground storage tank facility located at 525 Stevens Street and not to store fuel or to fuel trucks on the premises. (Tr. 42). The decision to remove the underground storage system was made while the system or facility was in service.

   
   

9. Suddath obtained and reviewed bids from contractors for the removal of the underground storage tanks. (Tr. 43-44).

10. On April 25, 1989, Suddath entered into a contract for services with Ray Treadwell Building Contractors, Inc. ("Treadwell"), for the removal of the existing underground tanks. These services included the back-filling, grading and covering of the excavated site with a concrete slab, with provisions that all work was to be performed in compliance with all Federal EPA and DER regulations. (Tr. 44, 48, Ex. 2).

    
    

11. In September 1989, Treadwell excavated the site and removed the underground storage tanks.

    
    

12. Treadwell advised Suddath that one of its subcontractors, Environmental Technologies and Assessments, Inc. ("ETA"), a duly licensed environmental consultant, had reported that there was no contamination. Billye

    J. Thoma, Suddath's project manager, memorialized in writing her conversation with Treadwell's representatives. (Tr. 79-81, Ex. 11). Suddath believed in September 1989, when the underground tanks were removed, that there was no contamination at 525 Stevens Street. (Tr. 45-46).

    
    

13. Before the removal of the underground storage system was completed, Treadwell informed Suddath that it had invented a "pollution-proof," double- walled portable tank on skids, that was not regulated in the same manner as underground tanks, and Suddath should consider purchasing these portable tanks for the 525 Stevens Street site. (Tr. 47).

    
    

14. On September 20, 1989 prior to the completion of the removal of the underground tanks, Suddath and Treadwell entered a separate contract for two double-walled aboveground fuel tanks, of 2,000 gallons and the other of 4,000 gallons. (Tr. 47-48, Ex. 3).

    
    

15. The aboveground tanks were not delivered until November or December of 1989. (Tr. 48). Between the removal of the underground tanks and delivery of the portable tanks to 525 Stevens Street, no petroleum was stored or dispensed on the premises. (Tr. 48, 49).

    
    

16. On January 17, 1990, Suddath informed the DER in writing of its acquisition of the aboveground tanks at 525 Stevens Street; however, these tanks were not registered under DER Facility No. 168630181. (Tr. 85-86, Ex. 12).

    
    

17. Suddath decided to purchase the aboveground portable tanks after the initial decision not to engage in any further storage or dispensing of fuel was made, but before the underground were removed only because Suddath had been informed that there was no contamination at 525 Stevens Street and that the new tanks constituted a new "pollution-proof" technology. (Tr. 83).

    
    

18. The aboveground tanks were placed approximately 20 feet from where the underground system had been located. (Tr. 47, 83-84).

    
    

19. On April 27, 1990, Suddath was informed that a required Closure Report had not been submitted on the removal of the underground storage system. (Tr. 49). Unknown to Suddath, ETA had failed to submit the report. Suddath inquired of Treadwell as to the Closure Report, and the report was submitted.

    
    

20. Suddath received extensions of time to complete closure from the DER. (Tr. 43).

21. The Closure Report, when filed, indicated the presence of contamination based upon soil and water samples taken from the site on September 19, 1989, and submitted to Southeastern Environmental Laboratories at that time. (Tr. 54-56, Ex. 7).

    
    

22. Suddath received correspondence from the DER dated July 5, 1990, requiring Suddath to undertake contamination assessment and to complete and submit a Contamination Assessment Report. (Tr. 52, Ex. 6). Suddath did not learn about the contamination at 525 Stevens Street until it received written notice from the DER.

    
    

23. Suddath submitted to the DER a Contamination Assessment Report dated May 13, 1991. (Tr. 57, Ex. 8).

    
    

24. Suddath documented contamination from the abandoned underground storage system. (Ex. 15).

    
    

25. Following discussions with Treadwell and ETA, Suddath removed the portable tanks in November 1990 and returned them to Treadwell. (Tr. 61).

    
    

26. Had Suddath known of contamination on the property, Suddath would not have purchased or used the portable aboveground tanks at 525 Stevens Street. (Tr. 70, 89).

    
    

27. Concrete posts were required to be installed by the County Fire Marshal to protect the aboveground tanks. The portable tanks were not attached to these posts. (Tr. 84, 104).

    
    

28. The aboveground tanks were manufactured by a company known as Recontainer Corporation ("Recontainer"), whose principal shareholder was an employee of Treadwell. Recontainer had obtained approval for the manufacture and sale of this type of aboveground tank from the DER. (Tr. 101, 104, 106).

    
    

29. According to Recontainer's Clayton Fields, the designer and holder of the patent for the tanks, the tanks were designed as completely portable with integral dispensers or pumps. (Tr. 108, 128, 129).

    
    

30. The aboveground tanks were regulated by the Department. (Tr. 67 and 106).

    
    

31. According to the designer of the tanks, the double-walled construction of the tanks makes them essentially "pollution free." (Tr. 108).

    
    

32. Removal of the portable tanks from Suddath's property took approximately 4 hours. (Tr. 112).

    
    

33. At the time the aboveground tanks were removed, they did not contain any petroleum. Suddath had decided just prior to November 1990 not to refuel its vehicles on site at 525 Stevens Street. (Tr. 111-112).

    
    

34. The aboveground tanks were at 525 Stevens Street from October or November of 1989 through November of 1990. During this period they were not moved, and were used to refuel Suddath's trucks at that location.

    
    

35. There is no evidence that the aboveground tanks created any contamination while they were present on the premises.

36. After removal of the underground storage system on September 19, 1989, Suddath has not dispensed or stored any petroleum at the 525 Stevens Street property except from the aboveground tanks.

    
    

37. In October of 1990, Suddath filed a timely application with the DER for reimbursement under the ATRP for restoration of real estate contaminated with pollutants at 525 Stevens Street, Jacksonville, Florida.

    
    

38. On February 24, 1993, the DER issued a letter denying Suddath's application, which stated, in part, that eligibility in the ATRP is "restricted to sites that are no longer in the business of storing petroleum products for consumption, use or sale and have not been so since March 1, 1990." (Tr. 61-53, Hearing Officer's Exhibit 1).

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

40. The issue for determination is whether Suddath Van Lines is eligible for participation in the ATRP.

    
    

41. The burden of proof in this case is on the Petitioner, as it is "fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). An applicant for a grant of financial assistance has a similar burden. Joshua Water Control District v. Department of Natural Resources, 15 Fla. Supp. 2d 152 (DOAH 1985).

    
    

42. The pertinent statute in ATRP eligibility determinations, Section 376.305(7), Florida Statutes (Supp. 1992), provides that

    
    

    (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 petroleum 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 establish the Abandoned Tank Restoration Program to facilitate the restoration of sites contaminated by abandoned petroleum 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.

    . . .

    
    

43. The pertinent administrative rule in ATRP eligibility determinations, Chapter 17-769.800(3), Florida Administrative Code (1993), provides in pertinent part that:

    
    

    1. Eligibility for the Abandoned Tank Restoration Program.

       1. To be eligible for the Abandoned Tank Restoration Program, the current owner or operator of a property which contains or contained 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 business

             for consumption, use, or sale of petroleum 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.

          
          

44. Section 376.305(7), Florida Statutes, (1992) and Rule 17-769.800, Florida Administrative Code, (1993) each state that eligibility in the ATRP program requires that the owner of the petroleum storage system, when it was in service, decided not to continue business for consumption, use or sale of petroleum products at that "facility" and further, in order to be eligible, the owner must not have stored petroleum products for consumption use or sale at that "facility" after March 1, 1990. The language in the foregoing statute and regulation was amended in 1992 substituting the term "facility" for the term "site" which had been used in their prior versions.

    
    

45. The Petitioner documented petroleum contamination at 525 Stevens Street. It can be argued that Petitioner discontinue petroleum product use at

    525 Stevens Street when it contracted for the removal of the tanks, thereby meeting the criteria of Rule 17-769.800(3)(a)1., Florida Administrative Code. However, the primary issue is whether Suddath stored petroleum products for consumption, sale or use at the facility or site.

    
    

46. The record shows that the Petitioner stored fuel in portable tanks which were not moved for over 180 days for use in its trucks. The aboveground tanks, while portable, were not moved for over one year, and, therefore, were considered storage tanks by the Department. The record shows the aboveground tanks were approximately 20 feet from where the underground tanks had been located. The location of the aboveground tanks meets both the definition of site and facility because the aboveground tanks were located within twenty feet of the location of the undergound tanks. The aboveground tanks were used for dispensing fuel on site, at the facility until after the March 1, 1990 deadline. It is on this basis that the Department denied the Petitioner's request for reimbursement.

47. The interpretation of the Department of its rules is entitled to great weight. The Department's interpretation of its rule on portable tanks and its application of that rule to the aboveground tanks sited for over one year within

    20 feet of the prior location of the Petitioner's underground tanks is reaonable. The Department correctly held that petroleum products had been dispensed and used on site at the facility after the statutory deadline thereby disqualifying the Petitioner from reimbursement.

    
    

48. While Treadwell and ETA may have misadvised Suddath and caused Suddath to elect to continue to dispense petroleum products at the 525 Stevens Street location, their misstatements do not form a basis for Suddath's recovery from the state of the expenses required to clean up the contamination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED: recommended that the Department deny Petitioner's application.

DONE and ENTERED this 20th day of January, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2604

Both parties filed proposed findings of fact which were read and considered. The following states which of those facts were adopted, and which were rejected and why:

Petitioner's Findings Recommended Order Para 1 Preliminary statement

Para 2,3 Para 37,38

Para 4-23 Para 1-20

Para 24 Para 22

Para 25 Para 21

Para 26-39 Para 23-36

Respondent's Findings Recommended Order

COPIES FURNISHED:

Michael E. Demont Lee S. Haramis

Post Office Box 1559 Jacksonville, Florida 32201-1559

Jefferson M. Braswell

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante General Counsel

Department of Environmental Protection Twin Towers Office Building

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 10 DAYS IN 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

SUDDATH VAN LINES, INC., DER FACILITY NO. 168630181,

Petitioner,

vs. OGC Case No. 93-1323

DOAH Case No. 93-2604

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/

FINAL ORDER

On January 20, 1994, a Hearing Officer with the Division of Administrative Hearings submitted a Recommended Order to the Department of Environmental Protection ("Department"), previously known as the Department of Environmental Regulation. A copy of the Recommended Order is attached as Exhibit A. On March 4, 1994, the Petitioner, Suddath Van Lines, Inc. ("Suddath"), filed exceptions to the Recommended Order. On April 4, 1994, the Department filed responses thereto. The matter thereupon came before me as Secretary of the Department for final agency action.

BACKGROUND

This case involves a determination of whether Suddath is eligible for participation in and reimbursement from the Abandoned Tank Restoration Program ("ATRP") for its facility located in Jacksonville, Florida. Suddath is a Florida corporation and an Interstate Commerce Commission regulated carrier primarily engaged in the business of providing moving services. In 1960, in connection with its business operations, Suddath constructed a moving and storage center which included underground storage tanks ("UST's") on property it owned at 525 Stevens Street, Jacksonville, Duval County, Florida. The UST's were registered with the Department as DER facility #168630181 and were used solely to fuel trucks on site.

In March, 1988, the Department advised Suddath that the UST's violated Department regulations and had to be abandoned and closed. Suddath entered into a contract with Ray Treadwell Building Contractors, Inc. ("Treadwell") for removal of the UST's in accordance with all federal EPA and Department regulations. On September 19, 1989, Treadwell removed the UST's. At that time, Treadwell advised Suddath that one of its subcontractors, a duly licensed environmental consultant, had reported that no contamination had been found. On September 20, 1989, Suddath and Treadwell entered into a contract under which Suddath would purchase "pollution-proof", double-walled, portable aboveground storage tanks ("AST's") from Treadwell for use at the 525 Stevens Street site.

In November and December, 1989, Suddath took delivery of the AST's. The AST's were placed approximately 20 feet from where the UST's had been located and Suddath installed concrete posts to protect the tanks by order of the County Fire Marshal.

An assessment report Suddath subsequently filed with the Department documented contamination from the UST's. On October 30, 1990, Suddath filed a timely application with the Department for eligibility in the ATRP. In November, 1990, Suddath removed the AST's from the subject property. During the period the AST's were located at 525 Stevens Street, from November or December, 1989 through November, 1990, they were not moved and were used solely to refuel Suddath's vehicles at that location. On February 24, 1993, the Department issued a letter denying Suddath's application stating, in part, that eligibility in the ATRP is "restricted to sites that are no longer in the business of storing petroleum products for consumption, use or sale and have not been so since March 1, 1990." On March 16, 1993, Suddath filed a petition for an administrative hearing claiming that it was eligible for admission into the ATRP under the criteria of Section 376.305(7), Florida Statutes (Supp. 1992).

Following receipt of the petition, the matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer. A final hearing was held on September 21, 1993. Upon consideration, the Hearing Officer determined that the AST's met the definition of site and facility because the aboveground tanks were located for over one year within 20 feet of the prior location of the UST's. The Hearing Officer concluded that Suddath was disqualified from participating in the ATRP because petroleum products had been dispensed and used at the facility after the statutory deadline. Accordingly, the Hearing Officer recommended that the Department deny Suddath's application.

RULINGS ON EXCEPTIONS

Suddath has filed eleven exceptions to various aspects of the Hearing Officer's proposed findings of fact and conclusions of law. Before proceeding to rule specifically on each exception, I should note the constraints imposed by law on agencies in reviewing findings of fact made by a Hearing Officer. Under Section 120.57(1)(b)10., Florida Statutes, the agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the Recommended Order, but may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that such findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, as these are matters within the sole province of the Hearing Officer. Accordingly, if the record discloses any competent substantial evidence to support a finding of fact made by the Hearing Officer, I am bound by such finding. See, e.g., Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). However, I am free to exercise my judgment and reject the Hearing Officer's conclusions of law.

See, e.g., MacPherson v. School Bd. of Monroe County, 505 So. 2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 268 So. 2d 478 (Fla. 2d DCA 1985); Alles v. Debt. of Professional Regulation, 423 So. 2d 624 (Fla. 5th DCA 1982).

Suddath's Exceptions to Findings of Fact Exception No. 1 and Paragraph No. 12 of Discussion:

In its first exception, Suddath contends that Finding of Fact No. 6 could be read or construed to imply that Suddath's 525 Stevens Street location, which included UST's, constitutes the same "facility" as the subject AST's. Suddath argues against this implication on the legal grounds set forth in its exceptions to the Conclusions of Law, discussed below, and on the grounds that there is no factual support in the record for such an implication.

As support for Finding of Fact No. 6, the Hearing Officer cited page 39 of the transcript of the proceedings. On page 39, the relevant question posed to the witness, Mr. Price, an Executive Vice President with Suddath, was whether the underground tanks formerly at the 525 Stevens Street location were registered with the Department. Based on the Hearing Officer's citation, it is my interpretation that Finding of Fact No. 6 was intended to reference the 525 Stevens Street location at the time it was using UST's to store and dispense petroleum products. Additionally, a review of all of the Findings of Fact indicates that the Hearing Officer set out the findings chronologically. The Hearing Officer did not make reference to the AST's until Finding of Fact No.

13. Therefore, a reasonable reading of Finding of Fact No. 6 is that the "525 Stevens Street facility" refers to the facility as it existed at the time of, or prior to, notification from the Department in March, 1988 that the UST's had to be abandoned (Finding of Fact No. 7), which UST's the Hearing Officer found to have been duly registered with the Department. This interpretation also comports with the record evidence which shows that Suddath did not register the AST's with the Department. (T-91; Finding of Fact No. 16) I conclude that the Hearing Officer did not intend Finding of Fact No. 6 to constitute a finding regarding the issue of whether the AST's constitute a part of Facility No. 168630181. Suddath's exception does not propound a reasonable interpretation and there is competent substantial evidence to support Finding of Fact No. 6. For these reasons, as well as the reasons set forth in my rulings on Exceptions No. 6-11, infra, Suddath's first exception is denied.

Exception No. 2 and Paragraph No. 13 of Discussion:

Suddath's second exception alleges that there is no evidence in the record to support the statement in Finding of Fact No. 14 that Suddath and Treadwell entered into a separate contract on September 20, 1989, prior to the completion of the removal of the UST's. This exception is well taken. The evidence presented by Suddath shows that removal of the UST's took approximately four hours (T-112), and was accomplished on September 19, 1989. (T- 55, 56; Pet. Ex.

7) The Department has never contested the date of removal of the UST's.

On page 55 of the transcript of the hearing, the witness, Mr. Price, read from Petitioner's Exhibit No. 7, where it stated "Four samples received on 9/19/89." Mr. Price then gave the following testimony:

Q. And that's the day that the underground tanks were removed; is that correct?

A. Yes.

On page 56 of he transcript, Mr. Price again testified that the UST's were removed on September 19, 1989. (T-56, lines 10-13) This testimony was obviously accepted by the Hearing Officer in that Finding of Fact No. 36 the

Hearing Officer recognized that the removal of the UST's had occurred on September 19, 1989. Additionally, Petitioner's Exhibit 7, at paragraph 1.0,

states that "On September 19, 1989, 2-2,000 gallon and 2-1,000 gallon, underground storage tanks were removed from properties owned by Suddath Van Lines." There is competent substantial evidence in the record supporting the fact that Suddath and Treadwell entered into the contract for purchase of the AST's tanks one day after removal of the UST's. Suddath's second exception is granted, and the Recommended Order is modified accordingly. This change does not affect the outcome of the case, so any error in this regard is harmless.

Exception No. 3 and Paragraph No. 14 of Discussion:

Suddath next contends that the statement in Finding of Fact No. 17 that Suddath decided to purchase the AST's before the UST's were removed is not supported by the record. The evidence presented at hearing shows that prior to removal of the UST's, Suddath was approached by Treadwell regarding purchase of the AST's. (T-46, 47; Finding of Fact No. 13) However, Suddath is correct in its assertion that the evidence does not support the finding that Suddath made the decision to purchase the AST's before the UST's were removed.

On pages 69 and 70 of the transcript, Mr. Price discussed the purchase of the AST's:

Q. When Suddath Van Lines was approached by Mr. Treadwell with the design and the idea of purchasing aboveground storage tanks, did Suddath at that time reconsider its decision about not storing and using on-site petroleum systems?

A. We looked at his type of tank, which is supposedly pollution free, and we wanted to delay making that decision until we removed the underground tanks so we could see how the site turned out. But we did enter into a contract, and we were going to put those on if everything went all right with the underground removal and also if it fell underneath the DER regulations. So we made-- it's not a simple yes or no answer. You have to look at what was going on at that particular time.

. . . .

The fact that we thought that we had a clean site was really a heavy decision--a heavy plus in the decision to put a portable tank there. And we did make that decision to put it in, but not until after the other had been removed and the site looked clean. And we

didn't do it until we really inspected these tanks.

Additionally, Ms. Thoma testified that after the UST's were removed Suddath was advised by Treadwell that no contamination had been found. (T-82) Ms.

Thoma then testified,

Well, after that, then the decision was made to obtain the aboveground tanks that Mr.

Treadwell had discussed that were portable and pollution preventative and double-walled, the new technology.

(T-82) There is no competent substantial evidence to support that portion of Finding of Fact No. 17 which states that the decision to purchase the AST's was made before the UST's were removed. Suddath's third exception is granted, and the Recommended Order is modified to delete the portion of Finding of Fact No.

17 in question. Again, any error is harmless.

Exception No. 4 and Paragraph No. 15 of Discussion:

Suddath here takes exception to Finding of Fact No. 33, arguing that it could be read or construed to imply that Suddath's decision not to fuel vehicles at 525 Stevens Street occurred just prior to November, 1990. Suddath states that there is no record evidence to support such an implication. Suddath is correct in its assertion that the evidence supports the fact that an initial decision not to store fuel at 525 Stevens Street was made in March or April of 1988. However, the evidence at hearing was that after Suddath made the initial decision not to store fuel in March or April, 1988, it subsequently stored and dispensed fuel on site in the AST's. (T-47, 83) The fact that approximately one year after their installation Suddath had the AST's removed necessitates the finding that Suddath made a second decision not to store fuel at the site. It appears, from the chronological nature of the Findings of Fact, that in Finding of Fact No. 33 the Hearing Officer was referring to this second decision.

Additionally, this interpretation comports with Findings of Fact No. 8, 17 and

26. There is competent, substantial evidence to support Finding of Fact No. 33 and Suddath's fourth exception is denied.

Suddath's Exceptions to Conclusions of Law Exception No. 5 and Paragraph No. 16 of Discussion:

Suddath next takes exception to Conclusion of Law No. 40, which states the issue presented for determination, to the extent that it does not specify any subissues. On September 21, 1993, the parties entered into a joint Pre-Hearing Stipulation which was filed with the Division of Administrative Hearings and was made a part of the record of these proceedings. The statement of the issue stipulated by the parties is substantially the same as the issue for determination set forth in Conclusion of Law No. 40. All of the relevant subissues raised by Suddath in its exception are addressed in the Hearing Officer's Recommended Order either directly or by implication. I find that Conclusion of Law No. 40 adequately sets forth the issue herein and there is, therefore, no need to disturb the Hearing Officer's conclusion. Suddath's fifth exception is rejected.

Exceptions No. 6 - 11 and Paragraphs No. 17 - 22 of Discussion:

In exceptions number 6 - 11, Suddath makes the bare statements that it takes exception to Conclusions of Law No. 42, 43, the third sentence of No. 45, 46, 47 and certain language in 48. However, the argument set forth in the

applicable portion of the Discussion section, Paragraphs number 17 - 22, does not follow the exceptions as stated. Rather, in Paragraphs 17 - 22, Suddath repeatedly states that it takes exception to each of the Conclusions of Law 42 through 48. In support of this contention, Suddath submits extensive argument. In order to organize a logical response which will address all of the issues Suddath has raised, I have addressed the exceptions as set forth in Paragraphs

17 - 22 of the Discussion section.

Paragraph No. 17 of Discussion:

Suddath asserts that the Recommended Order does not address certain critical prior versions of statutes and regulations and that the Hearing Officer has applied the incorrect versions of applicable statutes and regulations.

Suddath contends that Conclusions of Law Nos. 44 through 48 are tainted by the alleged omissions and misapplication. Specifically, Suddath contends that the following statutes and regulations are critical to this proceeding: Sections

376.301 and 386.305 [sic] (presumably the latter citation should be to Section 376.305), Florida Statutes (Supp. 1992); Rule 17-769.800, Florida Administrative Code (1993); Rule 17-762, et seq., Florida Administrative Code (1991); and Rule 17-761, et seq., Florida Administrative Code (1993). 1/

The Recommended Order cites and quotes from Section 376.305(7), Florida Statutes (Supp. 1992). Therefore, the only statute not specifically addressed is Section 376.301, Florida Statutes (Supp. 1992), which defines the term "facility" for purposes of Sections 376.30 - 376.319, Florida Statutes. The determination of whether Suddath is eligible for participation in the ATRP depends on whether the AST's constitute a different "facility", thereby avoiding the requirement that the property owner not have stored petroleum products for consumption, use or sale at its facility after March 1, 1990, See s.

376.305(7)(a), Fla. Stat. (Supp. 1992); Rule 17-769.800(3)(a), F.A.C. (1993).

Therefore, the statutory definition of the term "facility" is critical to this proceeding.

In Conclusion of Law No. 46, the Recommended Order implicitly addresses Section 376.301. The Hearing Officer first makes reference to the facts that the portable tanks were not moved for over 180 days and were approximately 20 feet from where the UST's had been located, and then finds that "the location of the aboveground tanks meets both the definition of site and facility". I find that the lack of specific reference to Section 376.301, Florida Statutes, was not in error in that the statute was implicitly addressed and the Hearing Officer made the requisite finding regarding same.

The code sections referenced by Suddath but not specifically cited in the Recommended Order are Rule Chapter 17-762, Florida Administrative Code (1991), regarding the regulation of AST's, and Rule Chapter 17-761, Florida Administrative Code (1993), regarding the regulation of UST's. Rule Chapter 17- 762 is also implicitly addressed in the Recommended Order. Conclusion of Law No. 46 mentions that the portable tanks were not moved for over 180 days and therefore the Department determined that the tanks constituted storage tanks.

The reference to 180 days is derived from Rule 17-762.300(2)(b), Florida Administrative Code, which contains an exemption for AST's that are on skids and are moved to a different location within a 180 day period. Further, Conclusion of Law No. 47 states that the Department's interpretation of its "rule on portable tanks" is reasonable. I find that lack of specific citation to Rule Chapter 17-762 did not result in error.

In its exceptions, the only reference Suddath makes to Rule Chapter 17-761 is that neither it nor Rule Chapter 17-762 define the term "stationary" such that the definition can be used to determine whether the AST's satisfy the definition of a "facility". However, the Hearing Officer found that the location of the AST's satisfied the definition of "facility" and the Recommended Order sets forth sufficient reasoning to support this finding. I find that the Hering Officer did not err in omitting a specific reference to Rule Chapter 17- 761 in the Recommended Order.

Suddath further contends that the Recommended Order applies incorrect versions of the applicable laws. Suddath argues that the 1992 and 1993 amended versions of the statutes and regulations should be applied retroactively.

Conclusions of Law 42 and 43 indicate that the Hearing Officer did, in fact, apply the amended versions of the statutes and regulations to this case. This retroactive application is in accord with the Florida case law. To the extent that the ATRP provisions are remedial in nature, they may be applied retroactively, if they do not impair or take away any "vested substantive rights." State v. Kelley, 588 So. 2d 595 (Fla. 1st DCA 1991); Hapney v.

Central Garage, Inc., 579 So. 2d 127 (Fla. 2d DCA 1991). Suddath has not claimed that a substantive right has been impaired or taken away, and in fact, Suddath admits that the likelihood of its eligibility under the ATRP is enhanced by application of the amended versions of the applicable laws. (Discussion, p. 10). Additionally, ATRP applications were only accepted until June 30, 1992, one day before the statute became effective. See s. 376.305(7)(a)1., Fla. Stat. Therefore, the ATRP laws are only meaningful if given retroactive application.

Statutes may be given retroactive application if required by the terms of the statute. Frankowitz v. Prost, 464 So. 2d 1225 (Fla. 4th DCA 1985). The Recommended Order applies the appropriate versions of all necessary laws, and these are in fact the versions Suddath argues should be applied. Accordingly, Suddath's exception to these Conclusions of Law is denied.

Paragraph 18 of Discussion:

In this exception, Suddath states that Findings of Fact No. 8 and 17 properly conclude that Suddath made the requisite decision for participation in the ATRP. Suddath then argues that Conclusions of Law 44 through 48 are faulty, and that they conflict with those proper factual findings, because they fail to recognize that the requisite decision was made in accordance with Section 376.305(7)(a)2., Florida Statutes (Supp. 1992), and Rule 17-769.800(3)(a)1., Florida Administrative Code (1993).

First, Suddath's argument is erroneous because Findings of Fact No. 8 and

17 do not make the finding that Suddath has suggested. Finding of Fact No. 8 states that in March or April, 1988 Suddath made the decision to abandon the UST's and not to store fuel or to fuel trucks on the premises. Finding of Fact No. 17 states that Suddath decided to purchase the AST's after the initial decision not to engage in any further storage or dispensing of fuel was made. While Findings of Fact No. 8 and 17 acknowledge that Suddath made an initial decision not to store fuel on site, as discussed in reference to Exception No. 4 above, Suddath necessarily made a subsequent decision not to store and dispense fuel on site when it had the subject AST's removed. Findings of Fact No. 8 and

17 refer to Suddath's initial decision and do not address whether this decision, which was subsequently rescinded in part, was sufficient for participation in the ATRP.

In its exception, Suddath argues that it made the requisite decision based on its interpretation that it had abandoned the only relevant system. However, the Recommended Order did not reach the issue of whether Suddath made the decision required by Section 376.305, Florida Statutes, and Suddath's argument is thus superfluous. 2/ The Hearing Officer properly found that the primary issue was whether Suddath stored petroleum products for consumption, sale or use at the facility or site. Once he determined that the Department's interpretation of its rule, finding that Suddath had stored petroleum products for consumption, sale or use at the facility or site after the March 1, 1990 deadline, was reasonable, the question of whether Suddath made the decision required by Section 376.305, Florida Statutes, was moot. For these reasons, Suddath's exception to the Conclusions of Law as set forth in Paragraph 18 of its discussion is denied.

Paragraphs 19 and 20 of Discussion:

The next discussion sections address the fundamental questions of whether the AST's and UST's constitute the same "facility" and "petroleum storage system" for purposes of participation in the ATRP and whether the AST's are "stationary" tanks. In essence, Suddath argues that the AST's constitute a separate facility from the UST's and, therefore, the storage of petroleum products in the AST's after the statutory deadline of March 1, 1990 should not preclude Suddath's participation in the ATRP.

In Paragraph 19, Suddath contends that the Recommended Order glosses over the significance of certain statutory definitions and terms (or the lack thereof) in answering these questions. First, Suddath argues, and Conclusion of Law No. 44 states, that the term "facility" was substituted for the term "site" in the 1992 and 1993 versions of the ATRP statute and its implementing rules.

3/ Suddath submits that this is indicative of the Legislature recognizing a distinction between the meanings of those terms. In reviewing the present and former statutes, it is clear that the terms were not merely substituted as has been suggested. The term "site" appeared in only one relevant place in the 1991 version of Section 376.305(7), Florida Statutes, in the definition of "abandoned petroleum storage system" at Subsection (7)(b)3. In amending the definition of "abandoned petroleum storage system" in 1992, the Legislature entirely abandoned Subsection (7)(b)3. See s. 376.305(7), Fla. Stat. (Supp. 1992). Additionally, in the 1992 version of the ATRP criteria, the Legislature added the phrase "at the facility" in Subsection (7)(a)1., and the phrase "at that facility" in Subsection (7)(a)2. Neither the term "facility" nor the term "site" appeared in the relevant portion of the 1991 version of the ATRP criteria set forth in Subsection (7)(c)1., Florida Statutes. 4/ Therefore, it was impossible for a mere substitution of terms to have occurred, as Suddath has suggested.

Suddath's argument is not well taken, and the portion of Conclusion of Law No 44 to which it refers is in error.

Suddath is correct in pointing out that "facility" was substituted for "site" in Rule 17-769.800, Florida Administrative Code. In 1993, the Department amended Rule 17-769.800 to reflect the Legislature's addition of the phrase "at that facility" in Section 376.305(7)(a). The statutory amendment appears to indicate an attempt by the Legislature to clarify the criteria for the ATRP. Suddath has presented no evidence to support a claim that the Department's subsequent rule amendment was anything more than a change in form, rather than a change in substance, in an effort to remain consistent with the governing statute.

Additionally, Suddath argues that the Recommended Order seemingly adopts the "erroneous reasoning" of the Final Order in Hamilton County Board of County Commissioners v. Department of Environmental Regulation, 15 F.A.L.R. 1322 (DER 1993). In the Hamilton County Order, the terms "facility", "location", and "site" were found to be interchangeable in the context of the ATRP eligibility question. Suddath contends that if the ruling in Hamilton County were correct, there would have been no need for the Legislature to have substituted the term "facility" for the term "site." However, as discussed above, Suddath's argument is faulty because the change Suddath refers to did not occur, and Suddath's speculation regarding the Department's intention in amending the regulation is unfounded.

Section 376.301(4), Florida Statutes (Supp. 1992), defines a facility as follows:

`Facility' means a non-residential location containing, or which contained, any underground stationary tank or tanks which contain hazardous substances or pollutants and have individual storage capacities greater than 110 gallons, or any aboveground stationary tanks or tanks containing or which

contained pollutants . . . . (emphasis added)

Suddath contends that the Legislature's use of the term "or" in the definition of "facility" indicates that a facility is either a location containing UST's or AST's, but not both case law indicates that the term "or" shall generally be construed as being disjunctive, and that it normally indicates alternatives.

Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986); Telophase Society of Florida, Inc. v. State Board of Funeral Directors and Embalmers, 334 So. 2d 563 (Fla.

1976); McKenzie Tank Lines, Inc. v. McCauley, 418 So. 2d 1177 (Fla. 1st DCA 1982). However, the case law also indicates that there are instances in which the conjunctive "or" is held equivalent to the copulative conjunction "and", and such meaning is often given in order to effectuate the legislative intent in enacting a statute. Dotty v. State, 197 So. 2d 315 (Fla. 4th DCA 1967). Such an interpretation is particularly applicable when a contrary construction would defeat the evident purpose of the legislation. Id. at 318. The interpretation that eligibility in the ATRP should be limited to sites which contain only UST's or only AST's, but not both, would certainly defeat the legislative purpose.

A more reasonable interpretation of Section 376.301(4), Florida Statutes (Supp. 1992), is that the proper measure for eligibility in the ATRP is not whether the facility contains UST's, AST's or both, but rather whether it is a "nonresidential location" which has been contaminated by one or more petroleum storage systems. S. 376.305(7), Fla. Stat. (Supp. 1992). I find that this interpretation by the Department is reasonable and consistent with case law. If an agency's interpretation of a rule is one of several permissible interpretations, the agency's interpretation must be upheld despite the existence of other reasonable alternatives. Pershing Indus. v. Department of Banking and Finance, 591 So. 2d 991 (Fla. 1st DCA 1991).

Finally, Suddath argues that the AST's do not constitute a "facility" or the relevant "petroleum storage system" because they are not "stationary", as required by Section 376.301(17), Florida Statutes. The term "stationary" is not currently defined in the applicable statutes or rules, except for the exemption in Rule 17-762.300 discussed below. Suddath correctly points out that absent a statutory definition, words should be given their plain and ordinary meaning,

and one looks to the dictionary for the plain and ordinary meaning of words. Specialty Restaurants Corp. v. City of Miami, 501 So. 2d 101, 102 (Fla. 3d DCA 1987); State Department of Business Reg. v. Salvation Ltd., 452 So. 2d 65, 67 (Fla. 1st DCA 1984). A review of the dictionary definition of stationary indicates that the term is defined in the Oxford Dictionary as "remaining in one place, not moving" and "not meant to be moved, not portable;" and in the Webster's Dictionary as "fixed, not portable; exhibiting no change." (Pet. Ex. 15, 16) The definitions imply both that the object is not in motion and that the object is not capable of being moved. It is, therefore, reasonable to take into account the amount of time that the object "remained in one place, not moving; exhibiting no change" in determining whether the object is stationary.

The testimony provided by Suddath established that, while the AST's were capable of being moved, they were not moved for approximately one year. Thus, a determination that the AST's were stationary within the meaning of the statute is sound.

Use of the ordinary definition and meaning also comports with Rule 17- 762.300(2)(b), Florida Administrative Code, which contains an exemption from its applicability to aboveground stationary tanks for tanks which are on skids and are moved to a different location within a 180-day period. 5/ Suddath argues that whether the AST's could have been moved within a 180-day period is a meaningless distinction because the tanks could have been moved off the property purposely to fall within the 180-day period. When the ATRP statute became effective in July, 1990, it included a cutoff date of March 1, 1990, which had come and passed prior to enactment of the program. Thus, Suddath's argument is inconsistent with its own acknowledgement that the Legislature's apparent purpose in structuring the statute as it did was to prevent persons from governing their affairs so as to necessarily fall within the program's reach (Discussion, pp. 29, 32), including moving a portable tank purposely to fall within the 180-day period. The evidence shows that Suddath's AST's remained in the same location for over 180 days barricaded by the same concrete posts. (Finding of Fact No. 34) Based on the foregoing, I find that the Hearing Officer's adoption of the Department's interpretation of the statutory definition of "facility" was proper.

Based on the above-cited definition of "facility", Suddath's business location and property is clearly the type of nonresidential location which the Legislature contemplated. The entire parcel of land where Suddath conducted its business must be deemed to be a single facility which contained two systems at different periods of time, a UST system and an AST system. In light of the definition of facility it is clear that the term facility does not contemplate only a specific area (or a particular tank) within a parcel of property upon which one integrated business operation is conducted. Rather, "facility" means a nonresidential location at which there may be UST's or AST's or both, which are used for storing petroleum. It is not reasonable to interpret the above statutory definition of facility to mean one specific spot, where the storage tanks were located only 20 feet apart, had the same owner, were on a single parcel of land, serviced the same vehicles, and contained the same kind of fuel. See Webbs Wood Products, Inc. v. Department of Environmental Protection, 16

1. 758 (DEP February 21, 1994). These considerations reasonably support the Department's interpretation that Suddath was a single facility having two systems at different times. Therefore, because Suddath continued in the business of storing petroleum products for consumption and use after March 1, 1990, Suddath is precluded from participating in the ATRP. Rule 17- 769.800(3)(a)3., F.A.C. (1993). If an agency's interpretation of a rule is one

   of several permissible interpretations, the agency's interpretation must be upheld despite reasonable alternatives. Pershing Indus. v. Department of Banking and Finance, 591 So. 2d 991 (Fla. 1st DCA 1991).

   
   

   Suddath further contends in Paragraph 20 that the Conclusions of Law are improper because the mere presence and use of the portable AST's is not and should not be disqualifying under the ATRP statutes and regulations. A review of the applicable law evinces that eligibility for the ATRP is based on the operations of the entire facility rather than an individual tank or petroleum storage system. Therefore, whether the UST's were taken out of service prior to March 1, 1990 is irrelevant because the evidence clearly shows that the facility continued in the business of storing petroleum products for consumption and use, with the two AST's, after March 1, 1990. Rule 17- 769.800(3)(a), Florida Administrative Code (1993), expressly requires that a facility not store petroleum products for consumption, use or sale after March 1, 1990, in addition to requiring the owner or operator to decide to discontinue in "business for consumption, use or sale of petroleum products at that facility." This rule and Section 376.305(7)(a)2., Florida Statutes (Supp. 1992), indicate that fuel operations at the facility, rather than the operation of a particular tank or petroleum storage system, are the key to an eligibility determination. The Hearing Officer properly recognized this to be the primary issue. (Conclusion of Law No. 45) The Department's determination is reasonable and is consistent with prior agency action. See, e.g., Webbs Wood Products, Inc. v. Department of Environmental Protection, 16 F.A.L.R. 758 (DEP February 21, 1994).

   
   

   For the foregoing reasons, Suddath's exceptions to the Conclusions of Law as set forth in Paragraphs 19 and 20 of its Discussion are denied.

   
   

   Paragraph 21 of Discussion:

   
   

   Suddath next asserts that the Recommended Order is erroneous because it does not address whether Suddath's participation in the ATRP would be more consistent with the Legislature's intent in enacting the program. First, Suddath did not raise inconsistency with legislative intent at the hearing in this matter and presented no evidence regarding same. Suddath's attempts to glean legislative intent from statutory amendments are inadequate. This exception only succeeds in propounding speculation and argument which is unsupported by the record.

   
   

   Additionally, the Department's ruling is wholly consistent with the Legislature's stated intent to provide financial assistance for cleanup of sites containing petroleum storage systems that have not stored petroleum products for consumption, use or sale since March 1, 1990. S. 376.305, Fla. Stat. (Supp.

   1992). Suddath did not meet the fundamental criteria of the statute and as such is ineligible for participation in the ATRP. There is obviously a need to place constraints on participation in a program such as that at issue to ensure that the legislative intent is accomplished. The Legislature has imposed specific constraints which have in turn been interpreted by the Department through rulemaking. As pointed out above, the Department's interpretation of its rules and governing statutes is entitled to great weight and will be upheld unless clearly erroneous. See, e.g., Pershing Indus. v. Department of Banking and Finance, 591 So. 2d 991 (Fla. 1st DCA 1991). For these reasons, Suddath's exception to the Conclusions of Law contained in Paragraph 21 of its Discussion is denied.

   Paragraph 22 of Discussion:

   
   

   Suddath next claims that the Recommended Order is so at odds with the statutory language and intent that to permit the interpretation set forth in the Recommended Order would be "endorsing an arbitrary and capricious interpretation, and would work an unconstitutional application." For the reasons set forth above, I find that the Department's interpretation of its rules is consistent with the statutory language and intent and does not constitute an arbitrary and capricious application thereof. The constitutionality of the Department's interpretation of its rules and statutes was not raised and is not properly at issue in this forum. The law is clear that administrative agencies lack jurisdiction to consider the constitutionality of their own actions. Hays v. State, Department of Business Regulation Division of Pari-Mutuel Wagering, 418 So. 2d 331 (Fla. 3d DCA 982) (citing Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So. 2d 695, 699 (Fla.

   1978)). "The Administrative Procedure Act cannot relegate matters of constitutional proportions to administrative agency resolution, nor can it impair judicial jurisdiction to determine constitutional disputes." Metropolitan Dade County v. Department of Commerce, 365 So. 2d 432 (Fla. 3d DCA

   1978) (citing Department of Transportation v. Morehouse, 350 So. 2d 529 (Fla. 3d DCA 1977)).

   
   

   Finally, Suddath contends that adopting the Conclusions in the Recommended Order would be tantamount to permitting the agency to improperly promulgate an unwritten rule. Suddath argues that the Hearing Officer's reliance on the proximity of the AST's to the placement of the UST's constitutes the promulgation of an unwritten "20 foot rule". This argument is without merit.

   The duty of the Hearing Officer, as is the duty of any judicial or quasi- judicial officer, is to apply the law to the facts of the case. In order to determine whether Suddath is eligible for participation in the ATRP the Hearing Officer had to address the question of whether the UST's and AST's constituted part of the same "facility." In making findings and conclusions on this issue, the Hearing Officer properly applied the law to the relevant facts, including the location of the tanks. I find that it was reasonable for the Hearing Officer to take proximity into account in determining that all the tanks constituted one "facility."

   
   

   Suddath's contention that the Recommended Order is erroneous because it is unclear what the result would have been if the tanks were located at a greater distance is also without merit. The role of the trier of fact is to make a decision based on the testimony and evidence before him. The Hearing Officer was not required to make findings which would address every conceivable fact pattern or to make a determination based on hypothetical facts not presented.

   The Recommended Order addresses the relevant facts as presented by the parties. Accordingly, this exception by Suddath to the Conclusions of Law is denied.

   
   

   Based on the foregoing, it is ORDERED:

   
   

   1. The Recommended Order of the Hearing Officer is adopted as modified herein and is incorporated herein by reference.

      
      

   2. The application of Petitioner, Suddath Van Lines, Inc., for participation in the Abandoned Tanks Restoration Program, Rule 17-769.800, Florida Administrative Code, is 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, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; 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 thirty (30) days from the date this Order is filed with the Clerk of the Department.

DONE AND ORDERED this 6th day of May, 1994, in Tallahassee, Florida.

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

5-6-94

Clerk Date

ENDNOTES

1/ At hearing, Suddath took the position that the 1991 versions of the relevant laws and rules were applicable to this matter, as opposed to the 1992 and 1993 amended versions. (T-4-10). In its exceptions to the Recommended Order, Suddath appears to argue both positions. (Discussion, p. 9) While the particular posture of Suddath's exceptions does not affect the ultimate determination of which law applies, I have treated Suddath's exceptions as urging that the amended versions apply, based on Suddath's statement in Paragraph 17 of its discussion that the amended versions of the statutes and regulations are "applicable and controlling in this proceeding."

2/ Suddath's argument regarding whether the underground tanks system is the only relevant "system" for purposes of participation in the ATRP is addressed in my rulings on Paragraphs 19 and 20 below.

3/ In support of its argument that the term "site" had been used in former versions of the ATRP statute and regulation, Suddath cites the "(1979), (1980), (1981), (1983), (1984), (1985), (1986), (1987), (1988), (1989), (1991)" versions

of Section 376.305, Florida Statutes. (Discussion, p. 15) However, the ATRP was not created until 1990, a fact which has been recognized by Suddath. (T-21; Discussion, p. 28)

4/ The term "site" is used in other portions of both the old and amended versions of Section 376.305(7), Florida Statutes: in the preface to the ATRP in Section 376.305(7)(c), Florida Statutes (1991), as amended in Section 376.305(7), Florida Statutes (1992); and in the ATRP criteria found in Section 376.305(7)(c)2., Florida Statutes (1991), as amended in Section 376.305(7)(a)3., Florida Statutes (1992). I have not addressed these references to the term "site" because the use and placement of the term remained substantially the same after amendment. Therefore, these are obviously not the amendments on which Suddath bases its argument.

5/ Chapter 17-61, Florida Administrative Code (1984), defined "stationary" to mean "a tank or tanks which remain at the facility site for a period of 180 days or longer." Although Chapter 17-61 was superseded by Chapters 17-761 and 17- 762, Florida Administrative Code (1991), which no longer define "stationary", the definition contained in Chapter 17-61 offers guidance in defining the term and supports the Department's interpretation.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to the following:

Michael E. Demont, Esquire Lee S. Haramis, Esquire Post Office Box 1559

Jacksonville, Florida 32201-1559 and by Hand Delivery to:

Stephen F. Dean, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Jefferson M. Braswell, Esquire Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Ann Cole, Clerk

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

this 6th day of May, 1994.

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION

LANETTE M. PRICE

Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

(904)488-9314

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

SUDDATH VAN LINES, INC., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appellant,

CASE NO. 94-1759

v. DOAH CASE NO 93-2604

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Appellee.

/ Opinion filed January 16, 1996.

An appeal f romp an order of the Department of Environmental Protection. Virginia B. Wetherell, Secretary.

Michael E. Demont and Lee S. Haramis of Kirschner, Main, Petrie, Graham &Tanner, Jacksonville, for Appellant.

Jefferson M. Braswell, Assistant General Counsel, Florida Department of Environmental Protection, Tallahassee, for Appellee.

ZEHMER, C.J.

Suddath Van Lines, Inc. appeals from the final order of the Secretary of the Department of Environmental Protection denying Suddath's application for participation in the Abandoned Tank Restoration Program (ATRP). 1/ For the following reasons, we affirm.

Suddath a conon carrier primarily engaged in the business of providing moving services, owns a facility on Stevens Street in Jacksonville, Florida, that at one time contained underground petroleum storage tanks (UST's) used to fuel Suddath's moving vans. However, when Suddath received notice from the Department of Environmental Regulation that the UST's were in violation of certain environmental regulations requiring that they be abandoned, the UST's were taken out of service and removed from the facility on September 19, 1989.

On September 20, 1989, the day after the cleanup of the UST's was completed, Suddath purchased two above-ground storage tanks (AST's) again for the purpose of storing fuel on the premises for its business operations. The AST's were built on skids and designed to be portable, but, instead of moving the AST'S between its several facilities as initially intended, Suddath allowed the AST's to remain on the Stevens Street premises for eleven months surrounded by protective concrete posts.

In the summer of 1990, Suddath learned for the first time that the original UST's had caused ground contamination. In light of this information, Suddath removed the AST's from the Stevens Street location in November 1990. At that time, Suddath decided to permanently discontinue the use of petroleum products at that location.

In the meantime, Suddath had submitted an application to the Department in October for approval of its participation in the Abandoned Tank Restoration Program (ATRP) to obtain financial assistance for costs Suddath expected to incur in cleaning up the ground contamination caused by the abandoned UST's. On February 24, 1993, the Department issued a letter denying Suddath eligibility in the program due to the presence of the AST's at the time of application, since eligibility under the ATRP "is restricted to sites that are no longer in business of storing petroleum products for consumption, use or sale and have not been so since March 1 1990." (Emphasis added.) Following receipt, of this letter, Suddath timely filed a petition for administrative hearing requesting that the Stevens Street premises be included in the program.

The stipulated legal issue argued before the hearing officer was whether Suddath was eligible for participation in the ATRP under the provisions of subsection 376.305(7), Florida Statutes (Supp. 1992), and Florida Administrative Code Rule 17-769.800(3).

Subsection 376.305(7) states as follows:

(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 petroleum 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 establish the Abandoned Tank Restoration Program to facilitate the

restoration of sites contaminated 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 the 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.

(Emphasis added.) The Department's rule 17-769.800(3), implementing the above statutory `subsection, provides in relevant part:

(3) Eligibility for the Abandoned Tank Restoration Program.

(a) To be eligible for the Abandoned Tank Restorati

on Program, the current owner or

operator of a property which contains or contained an abandoned storage system must:

1. Demonstrate that the owner or operator of thee 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.

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. (Emphasis added.)

"Facility" is defined in subsection 376.301(7) in pertinent part as follows:

(7) "Facility" means a nonresidential location containing, or which contained, any underground stationary tank or tanks which contain hazardous substances or pollutants . . ., or any aboveground stationary tank or tanks which contain pollutants.

(Emphasis added.)

Suddath's argument focused on the interpretation of the terms "facility" and "site," urging that when it removed the UST's from the Stevens Street premises, it met the criteria of rule 17-769.800(3)(a)1., by discontinuing the use of petroleum products at that facility. Suddath's argument is predicated on the notion that the terms "petroleum storage system" and "facility" can be used interchangeably to support the conclusion that the AST's constituted a distinct and separate "facility" from the UST's, so that the storage of petroleum products in the AST's after the statutory deadline of March 1, 1990, should not have affected Suddath's eligibility for participation in the ATRP relevant to the UST's. Additionally, Suddath argued that the presence of the AST's after

March 1, 1990, should not have hindered its participation in the program because the AST"s were not "stationary" systems as contemplated in subsection 376.301(7).

Both the hearing officer and the Secretary rejected Suddath's proposed interpretations of the statutes and rule. We quote with approval that portion of the Secretary's final order specifically addressing these arguments:

Suddath contends that the Legislature's use of the term "or" in the definition of "facility" indicates that a facility is either a location containing UST's or AST's, but not both. The case law indicates that the term "or" shall generally be construed as

being disjunctive, and that it normally indicates alternatives. Sparkman v. McClure, 498 So.2d 892 (Fla. 1986); Telophase Society of Florida. Inc. v. State Board of Funeral Directors and Embalmers,

334 So.2d 563 (Fla. 1976); McKenzie Tank Lines. Inc. v. Mccauley, 418 So.2d 1177 (Fla. 1st DCA 1982). However, the case law also indicates

that there are instances in which the conjunctive "or" is held equivalent to the copulative conjunction "and," and such meaning is often given in order to effectuate the legislative intent in enacting a statute. Dotty v. State,

197 So.2d 315 (Fla. 4th DCA 1967). Such an interpretation is particularly applicable when a contrary construction would defeat the evident purpose of the legislation. Id. at 318. The interpretation that eligibility in the ATRP should be limited to sites which contain only UST's or only AST's, but not both, would certainly defeat the legislative purpose.

A more reasonable interpretation of Section 376.301(4), Florida Statutes (Supp. 1992), is that the proper measure for eligibility in the ATRP is not whether the facility contain UST's. AST's or both, but rather whether it is a "nonresidential location" which has been contaminated by one or more petroleum storage systems. s376.305(7), Fla. Stat. (Supp. 1992). I find that this interpretation by the Department is reasonable and consistent with case law. If an agency's interpretation of a

rule is one of several permissible interpretations, the agency's interpretation must be upheld despite the existence of other reasonable alternatives.

Pershing Indus. v. Department of Banking and Finance, 591 So.2d 991 (Fla. 1st DCA 1991)

Finally, Suddath argues that the AST's do not constitute a "facility" or the relevant "petroleum storage system" because they are not "stationary," as required by Section 376.'301(17), Florida Statutes. The term "stationary" is not currently

defined in the, applicable statutes or rules, except for the exemption in Rule 17-762.300 discussed below. Suddath correctly points out that absent statutory definition, words

should be given their plain and ordinary meaning, and one looks to the dictionary for the plain and ordinary meaning of words. Specialty Restaurants Corn. v. City of Miami, 501 So.2d 101, 102

(Fla. 3rd DCA 1987); State Department of Business Reg. v. Salvation Ltd., 452 So.2d 65, 67

(Fla. 1st DCA 1984). A review of the dictionary definition of, stationary indicates that the term is defined in the Oxford dictionary as "remaining in one place, not moving" and "not meant to be moved, not portable;" and in the Webster's Dictionary as "fixed, not portable; exhibiting no change." (Pet. Ex. 15, 16) The definitions imply both that the object is not

in motion and that the object `is not capable of being moved. It is, therefore, reasonable to take into account the amount of time that the object "remained in one place, not moving;

exhibiting no change" in determining whether the object is stationary. The testimony provided by Suddath established that, while the AST's were capable of being moved, they were not moved for approximately one year. Thus, a determination that the AST's were stationary within the meaning of the statute is sound.

The Secretary further observed that the ordinary use of the term "stationary" comports with rule 17-762.300(2)(b), Florida Administrative Code, exempting above-ground tanks from regulation under that chapter as long as he, tanks are "moved to a different location at least every 180 days." In this case, however, the Secretary noted that Suddath's AST's remained in the same location for over 180 days, barricaded by concrete posts. The Secretary concluded:

Based on the above-cited definition of "facility," Suddath's business location and property is clearly the type of nonresidential location which the Legislature contemplated.

The entire parcel of land where Suddath conducted its business must be deemed to be a single facility which contained two systems at different periods of time, a UST system and an AST system. In light of the definition of facility it is clear that the term facility does not contem- plate only a specific area (or a particular tank) within a parcel of property upon which one integrated business operation is conducted.

Rather, "facility" means a nonresidential location at which there may be UST's or AST's or both, which are used for storing petroleum. It is not reasonable to interpret the above statutory definition of facility to mean one specific spot, where the storage tanks were located only 20 feet apart, had the same owner,

were on a single parcel of land, serviced the same vehicles, and contained the same kind of See Webbs Wood Products Inc. v. Department of Environmental Protection, 16 F.A.L.R. 758

(DEP February 21, 1994). These considerations reasonably support the Department's interpreta- tion that Suddath was a single facility having two systems at different times. Therefore, because Suddath continued in the business of storing petroleum products for consumption

and use after March 1, 1990, Suddath is precluded from participating in the ATRP. Rule 17-769.800(3)(a)3., F.A.C. (1993).

We affirm the Secretary's final order. As the Secretary noted on more than one occasion in the order, "an agency's construction of its governing statutes and rules will be upheld unless clearly erroneous." Pershing Industries v.

Department of Banking and Finance, 591 So.2d at 993. There is nothing in the present record demonstrating that the Department's interpretation of the relevant statutes and rules is clearly erroneous. Rather, the record substantially supports the Secretary's conclusion that the Department's interpretation is reasonable and consistent with prior agency action (Webbs Wood Products, Inc.). It also firmly supports her finding that Suddath's Stevens Street facility continued in the business of storing petroleum products for consumption and use with the two AST's after March 1, 1990. Because fuel operations at the facility as a whole is the key to eligibility under subsection 376.305(7)(a)2., and rule 17-769.809(3)(a), and not the operation of one particular tank or petroleum storage system, the Secretary correctly denied Suddath's application for participation in the ATRP.

Suddath also raises a constitutional challenge in this court to the Department's interpretation of the applicable statutes and rules. We find this argument to be without merit. The Department did not employ incipient policy in determining that Suddath is ineligible for participation in the ATRP. Nor is its interpretation of the statutes and rules vague, arbitrary or capricious. To the contrary, the Department properly applied the facts of the case to the applicable law based on a permissible and reasonable interpretation of that law.

For the foregoing reasons, the final order under review is AFFIRMED.

ALLEN and KAHN, JJ., CONCUR.

ENDNOTE

1/ 376.305(7), Fla. Stat. (Supp. 1992); Fla. Admin. Code R. 17-769.800.

(1993). Although an issue was raised by Suddath below regarding whether the 1991 version of the relevant statute and rule applied instead of the 1992 and 1993 amended versions, it urged in its exceptions to the recommended order the applicability of the amended versions. In its initial brief, Suddath again refers to the amended versions of the statute and rule, and notes that the 1993 amendments to the rule did not result in any substantive changes. Accordingly, reference in this opinion will be to the 1992 and 1993 versions of the statute

and rule, respectively. (In March 1995, the applicable rules were transferred to Title 62 of the Florida Administrative Code. Thus, for example, rule 17- 769.800 now appears as rule 62-769.800.)

Docket for Case No: 93-002604

Orders for Case No: 93-002604