STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MERIT ELECTRIC COMPANY, INC., )

DEP Facility No. 528624457, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2196

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

SUMMARY RECOMMENDED ORDER

This matter came before the undersigned on Respondent's Motion For Summary Recommended Order based on the representation that there are no controverted issues of fact for resolution at a formal hearing on the merits. Respondent's motion was forwarded to Petitioner's counsel by US Mail on July 7, 1994.

Consistent with the provisions of Rule 22I-6.002, the Petitioner's response to the motion, either in agreement therewith or in opposition thereto, was due to be filed no later than July 19, 1994. No response of any character was forthcoming from Petitioner.

In its Petition for Administrative Hearing, protesting the Department's rejection of its request to participate in the state's Abandoned Tanks Restoration Program (ATRP), Petitioner alleged that it had installed two separate underground petroleum storage systems on its property in question. The first was installed in or about June, 1978, and the second in or about August, 1982. It further alleged the first was abandoned prior to March 1, 1990, and the second in or about May, 1991. These matters are not in dispute and it is so found.

Section 376.305(7), Florida Statutes, limits eligibility for participation in the ATRP to those systems which have not stored petroleum since March 1, 1990, and requires an applicant to certify in its application that its system proposed for inclusion in the program,

has not stored petroleum products for consumption use or sale at the facility since March 1, 1990.

There is no issue regarding the fact that Petitioner stored petroleum products in the newer of the two systems at its facility after March 1, 1990. Petitioner alleges that the older system, taken out of use prior to March 1, 1990, is eligible, however. On the other hand, the Department contends that because the newer system was in use for petroleum product storage after that date, and that system was located at the same facility as the older, abandoned system, the older system is not eligible for participation. In support of its position, it cites two DOAH cases: Jones Management Corporation v. Department of Environmental Protection, DOAH Case No. 93-2821RX, Final Order Dated February 1,

1994; and Webbs Wood Products, Inc. v. Department of Environmental Protection, DOAH Case No. 92-6367, Final Order dated February 21, 1994.

The former case, Jones, held that Rule 17-769.800(3), F.A.C., implementing the statute cited previously, applied the March 1, 1990 deadline to the "site" of an abandoned petroleum storage system as opposed to a specific storage system. The latter case, Webbs, determined there was no real difference between the term "site" as used in the former version of the instant rule, and the term "facility" as used in the latter version of the rule.

The courts have repeatedly held that an agency's interpretation of its own rules and statutes should be given great deference, and its interpretation thereof must be upheld unless clearly erroneous. Maclean Rehabilitation Center

v. DHRS, 588 So.2d 13 (Fla. 1DCA 1991); Motel 6 v. Department of Business Regulation, 560 So.2d 1322, 1323 (Fla. 1DCA 1990).

Here, Respondent has clearly established in its pleading the nature of the matter under consideration and has demonstrated that its position with regard to this matter is legally sustainable. Petitioner has failed to file any matters in opposition to or contravention of either the Department's recitation of the facts or its statement of the pertinent law. It is, therefore:

RECOMMENDED that a Final Order be entered in this matter denying Petitioner, Merit Electric Company, Inc.'s application for participation in the ATRP as to both systems identified.

RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 28th day of July, 1994.

COPIES FURNISHED:

Robert C. Dickinson, III, Esquire 33920 U.S. Highway 19 North, Suite 200 Palm Harbor, Florida 34684

W. Douglas Beason, Esquire Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell Secretary

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante General Counsel

Department of Environmental Protection

2600 Blair Stone Rod 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. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-002196

Orders for Case No: 94-002196