STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD R. PARR and GEORGE H. HOMER, SR., ) (DEP Facility No. 588631316), )

)

Petitioner, )

)

vs. ) CASE NO. 93-6555

)

STATE OF FLORIDA DEPARTMENT )

OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, conducted a formal hearing in the above-captioned matter on March 16, 1994, in Sarasota, Florida.

APPEARANCES

For Petitioners: Harold R. Parr, pro se

913 East Shanon Court Venice, Florida 34293

George H. Homer, Sr., pro se 3674 Roslyn Road

Venice, Florida 34293

For Respondent: W. Douglas Beason, Esquire

Florida Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether the Petitioners are eligible for restoration coverage under the Abandoned Tank Restoration Program (ATRP) with regard to the remediation of petroleum contamination at DEP Facility No. 588631316, located in Venice, Florida.

PRELIMINARY STATEMENT

On September 1, 1993, the Respondent, State of Florida Department of Environmental Protection (Department) issued an Amended Order of Ineligibility with regard to Petitioners' ATRP Application For Restoration Coverage. The Amended Order of Ineligibility advised the Petitioners that they were ineligible for participation in the ATRP because eligibility was "restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March, 1990." By letter dated October 18, 1993,

the Petitioners filed a petition for administrative hearing on the Department's determination of ineligibility. The Department referred this matter to the Division of Administrative Hearings for the assignment of a hearing officer and the conduct of a formal hearing.

At the hearing, the Petitioners testified on their own behalf but presented no other witnesses and offered no documentary evidence. The Department presented the testimony of James Goerdt. The Department's exhibits 1, 2 and 3 were received as evidence in this case.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The Department timely filed its Proposed Recommended Order. The Petitioners timely filed what they referred to as a "Plea For Leniency" but did not present any "Findings of Fact". A ruling on each proposed finding of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Petitioners are the operators of Gulf Car Care (DEP Facility No. 588631316) located at 207 South Tamiami Trail, Venice, Florida.

   
   

2. The Department is the agency charged with the responsibility of administering the Abandoned Tank Restoration Program.

   
   

3. The Petitioners' ATRP Application was dated May 17, 1992 and received by the Department on June 17, 1992.

   
   

4. The Petitioners' ATRP Application indicates that two 2,000-gallon underground storage tanks (UST's) were located at the facility and that one of those tanks was utilized for the storage of diesel fuel while the other tank was utilized for the storage of gasoline.

   
   

5. Petitioners' ATRP Application indicates that two 4,000-gallon UST's and two 6,000-gallon UST's were also located at the facility and were utilized for the storage of gasoline.

   
   

6. At least some, if not all, of the UST's identified in Petitioners' ATRP Application continued to store petroleum products for consumption, use or sale after March 1, 1990, and in fact, continued to store petroleum products for consumption, use or sale until some time in April, 1990.

   
   

7. Petitioner Parr was operated on for colon cancer in late 1989 and Petitioner Homer suffered a heart attack on March 3, 1990. Petitioners contend that because of Petitioner Parr's illness the Petitioners were unable to make a decision to remove the petroleum storage system from service until after March 1, 1990.

   
   

8. The petroleum storage system at the facility has been closed in accordance with Department's applicable rules.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Petitioners, as the person seeking eligibility for restoration coverage under the Abandoned Tank Restoration Program, have the burden of establishing by a preponderance of the evidence that the facts support their entitlement to eligibility for restoration. Florida Department of Transportation v. J. W. C. Co., Inc., (1 DCA Fla. 1981). The Petitioners have failed to sustain their burden in this regard.

    
    

11. Section 376.305(7), Florida Statutes, defines "abandoned petroleum storage system" to mean "any petroleum storage system that has not stored petroleum products for consumption, use or sale since March 1, 1990".

    
    

12. To be eligible for the Abandoned Tank Restoration Program, Section 376.305(7)(a), Florida Statutes, requires, among other things, that an application 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.

    
    

13. In implementing the Abandoned Tank Restoration Program, the Department adopted Chapter 17-769.800, Florida Administrative Code. Rule 17-769.800 (3), Florida Administrative Code, provides the criteria for eligibility for the Abandoned Tank Restoration Program, and among those eligibility criteria is the requirement that the owner or operator of a property which contains an abandoned storage system not have stored petroleum products for consumption, sale or use at that facility after March 1, 1990.

    
    

14. The Petitioners concede that the facility did not meet the requirement that the facility not store petroleum products for consumption, use or sale after March 1, 1990. However, the Petitioners contend that their health problems interfered with Petitioners' decision to take the facility out of service by March 1, 1990, and that the Department should waive or extend the statutory deadline of March 1, 1990.

    
    

15. While Petitioners' contention is understandable, there does not appear to be an authority, statutory or otherwise, that would allow the Department to waive or extend the statutory deadline of March 1, 1990.

    
    

16. The Department has interpreted the March 1, 1990, deadline set forth in Section 376.305(7)(a), Florida Statutes, as a mandatory requirement for eligibility for restoration coverage under the Abandoned Tank Restoration Program which cannot be waived or extended under any circumstances. While this may be a harsh interpretation under circumstances such as Petitioners', it is a reasonable interpretation and is clearly not an erroneous interpretation. Although there may be other permissible interpretations or reasonable alternatives, the Department's interpretation of Section 376.305(7)(a), Florida Statutes, must stand since it is both reasonable and within the scope of permissible interpretations. Motel 6, Operating L. P., d/b/a Motel 6 v. Department of Business Regulation, 560 So.2d 1322, 1323 (1 DCA Fla. 1990).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioners' application for eligibility or restoration coverage under the Abandoned Tank Restoration Program.

RECOMMENDED this day 21st of April, 1994, at Tallahassee, Florida.

WILLIAM R. CAVE

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 21st day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6555

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioners, Harold R, Parr and George H, Homer, Sr.

Petitioners did not submit any proposed findings of fact per se. However, based on the record, including the testimony of the Petitioners, it does not appear that the Petitioners would disagree with any of the Findings of Fact presented in this Recommended Order.

Respondent, Department's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(3); 3-4(4); 5-6(5); 7- 9(6); 10-11(7) and 12(8).

COPIES FURNISHED:

Harold R. Parr

913 E. Shanon Court Venice, Florida 34293

George H. Homer, Sr.

3674 Roslyn Road

Venice, Florida 34293

W. Douglas Beason, Esquire Department of Environmental

Protection

Twin Towers Office Building 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 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.

Docket for Case No: 93-006555

Orders for Case No: 93-006555