STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PUCKETT OIL COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2161
)
DEPARTMENT OF ENVIRONMENTAL )
REGULATION, )
)
Respondent. )
) INTERNATIONAL PETROLEUM )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2465
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer, in Tallahassee, Florida. The appearances were as follows:
APPEARANCES
For Petitioner, Robert D. Fingar, Esquire
Puckett: HUEY, GUILDAY, KUERSTEINER & TUCKER
First Florida Bank Building, Suite 510 Post Office Box 1794
Tallahassee, Florida 32302
For Petitioner, R. L. Caleen, Jr., Esquire International: OERTEL & HOFFMAN
2400 Blair Stone Road Tallahassee, Florida 32301
For Respondent, E. Gary Early, Esquire
DER: Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
PROCEDURAL HISTORY
This cause arose upon notification to the Petitioners that the State of Florida, Department of Environmental Regulation (DER), proposed to deny their applications for eligibility for reimbursement of their costs of cleaning up certain petroleum or petroleum product contaminations on their respective properties. Such cleanup of a contamination site and potentially, reimbursement of the costs thereof, is authorized under Section 376.3071(12), Florida Statutes (Supp. 1986), which is part of the so-called State Underground Petroleum Environmental Response Act of 1986 ("Super Act").
The Petitioner, Puckett Oil Company (Puckett), filed an Early Detection Incentive Program Notification Application (EDI application) on July 1, 1986. Subsequent to the submission of that application, but prior to the Department's action thereon, Puckett elected to conduct its own clean-up of the site. It therefore modified its request to one for reimbursement of cleanup expenses, pursuant to Section 376.3071(12), Florida Statutes (Supp. 1986).
Upon receipt of the EDI application and the later request for reimbursement of cleanup expenses, the Department determined, after investigation, that the substance which had been discharged at the Puckett site was used automotive crank case oil. Based upon that initial determination, the Department informed Puckett that its site was not eligible for participation in the EDI program, or the reimbursement program, because of the Department's position that used oil is not "petroleum," nor a "petroleum product," as that term is defined in Section
376.301 (9) and (10), Florida Statutes (Supp. 1986). Accordingly, on April 16, 1987, the Department issued its denial of reimbursement eligibility to Puckett.
The Petitioner, International Petroleum Corporation (International), filed its request for reimbursement of cleanup expenses with the Department on March 30, 1987. Upon receipt of that reimbursement request, the Department, after investigation, took the position that the International site was predominately contaminated with used oils of various kinds, along with lesser amounts of unused oils. Thus, the Department reached the initial decision that the site was not eligible for reimbursement for the same reason it found that Puckett's site was ineligible. On May 1, 1987, the Department issued its proposed denial of eligibility for reimbursement to International.
Both Petitioners timely requested formal proceedings pursuant to Section 120.57, Florida Statutes, to contest their respective denials of eligibility for reimbursement for cleanup of their contamination sites. The matters were ultimately forwarded to the Division of Administrative Hearings and the undersigned Hearing Officer. On August 10, 1987, the parties filed a Joint Motion for Consolidation, for Extension of Time and for Relocation of Final Hearing. The motion was granted and the cases were consolidated. On August 31, 1987, the Department filed a Motion to Continue the hearing for a 60-day period, which motion was denied.
The cause came on for hearing as noticed on the general issue concerning whether Puckett and International should be denied reimbursement eligibility for purposes of Section 376.3071(12), Florida Statutes (Supp. 1986), based upon the Department's contention that used or non-virgin oil was not "petroleum" or "petroleum product" within the meaning of the above-cited statutory provisions, respectively. The parties filed a Joint Prehearing Stipulation which, in addition to identifying witnesses and listing exhibits, provided as follows:
"As to eligibility for participation in the
early detection incentive program under Section 376.3071(9), Florida Statutes, or for reimbursement of cleanup expenses under Section 376.3071(12), Florida Statutes, the burden of proof is with the Petitioner;
2. As to exceptions to eligibility set forth in Sections 376.3071(9)(b)1. through 3., 376.3071(9)(d) or 376.3071(12)(b)1. through
, Florida Statutes, the burden of proof is with the Respondent.
As to the Respondent's development of policy, the burden of proof shall be with the Respondent.
As to issues related to a party being estopped from taking any action, the burden of proof is with the party asserting the estoppel."
Puckett presented the testimony of Lloyd Winters and Frederick Litt, Ph.D. Dr. Litt was qualified as an expert in organic chemistry, with emphasis on lubricating oils, used oils and the EPA regulations as they relate to chemical issues concerning used oils, lubricants and lubricant additives. Puckett's Exhibits 1-9 were admitted into evidence.
International Petroleum presented the testimony of Gary Allen, Anthony Mallitino and, by deposition, Ray S. Tarrar, Ph.D. Mr. Allen was qualified as an expert in the operation of an oil reclamation facility. Mr. Mallitino was qualified as an expert in organic and inorganic chemistry regarding petroleum, used oil and the clean up of petroleum contamination. Dr. Tarrar was qualified as an expert in chemical engineering, with an emphasis on petroleum, petroleum products and used oil. International Petroleum moved Exhibits 1-12, 16, 18 and 20-28 into evidence.
The Department (DER) presented the testimony of David H. Kelly, John Gentry and John M. Ruddell. Mr. Kelley was qualified as an expert in used oil management. Mr. Gentry was qualified as an expert in the field of hydrology.
DER moved its Exhibits 1-4, 6, 7, 9, 11, 16, 18 and 20 into evidence. Objections to the admission of Exhibits 5, 10 and 12 were sustained, and the Department was permitted to proffer those exhibits. Both Puckett and International adopted each other's exhibits. The parties additionally introduced Joint Exhibits 1-7 into evidence.
The parties agreed to allow DER to submit written objections, post-hearing, to the testimony of Dr. Ray Tarrar. Upon the filing of those objections, a hearing thereon was convened by conference phone call and a written order was entered, on December 1, 1987, overruling the objections. By agreement of the parties, the entry of that order constituted the conclusion of the hearing in this cause.
Subsequent to the hearing, the parties availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law and requested a transcript of the proceedings. After one extension, the Proposed Findings of Fact and Conclusions of Law were timely filed. The parties waived the time constraints of Rule 28-5.402, Florida Administrative Code.
The primary issue to be resolved herein concerns whether the material commonly known as "used oil" meets the definition of petroleum or petroleum
product for, purposes of the above-cited statutory authority. If used oil is within the scope of the definitions of "petroleum" or "petroleum product," then monies from the "Inland Protection Trust Fund" will be available to reimburse the Petitioners' costs of cleaning up their property. If used oil shall be determined not to be within the scope of those definitions, then the Petitioners will be responsible for cleaning up contamination on their respective properties. Additionally, two other issues have been raised concerning, first, whether Petitioner, Puckett Oil Company, has been grossly negligent so as to justify denying its eligibility pursuant to Section 376.3071(9)(b)3, Florida Statutes (Supp. 1986), and contained within that issue, whether the Department timely raised the alleged gross negligence of Puckett, consisting of its alleged failure to cease the knowing deposition of used oil in an inoperative floor drain, such that for an extended period of time, the used oil contaminated the soil at Puckett's used oil disposal site. The second peripheral issue concerns whether the Department is estopped from denying eligibility to the sites contaminated with used oil, as a result of the term "used oil" being listed on the EDI application form.
On September 4, 1987, Puckett filed a Motion in Limine to prevent the Department from raising the issue of gross negligence at final hearing. A hearing was held on the motion on September 9, 1987, and the Motion in Limine was granted. Findings of Fact and Conclusions of Law related to the issue of gross negligence, are set forth below.
FINDINGS OF FACT
Puckett Oil Company, at times pertinent hereto, operated a full-service gasoline and auto service station at 7251 Pensacola Boulevard, Pensacola, Florida. The station at that site performed a complete range of automotive repairs, including lubrication and oil changes. These services are typical of such full-service service stations. On or about June 27, 1986, the operator of that station which was owned by Puckett, Mr. Winters, discovered a discharge of used oil at the site. The discharge occurred because the operator believed that used oil had been drained into an underground storage tank on a routine basis at the facility, as the oil was changed in customer vehicles. In fact, it developed that, unbeknownst to Mr. Winters, the tank had been removed by the prior land owner. This resulted in repetitive contamination of soil and groundwater at the facility, since the oil poured into the floor drain at the station, after being removed from the crank cases of customer vehicles, was in reality draining into the ground, instead of into a storage tank.
After becoming aware of this problem, Puckett filed an Early Detection Incentive (EDI) Program Notification Application, reporting the discharge of used oil to the Department, pursuant to Section 376.3071, Florida Statutes (Supp. 1986). That EDI notification application form lists used oil as a "product." Puckett notified the Department of its intent to proceed with voluntary cleanup at the Puckett site pursuant to Section 376.3071(11) and (12), Florida Statutes (Supp. 1986), and to seek reimbursement for the cost of that contamination cleanup pursuant to Section 376.3071(12), Florida Statutes (Supp. 1986).
The Department, in view of the request, conducted a site inspection on December 19, 1986. The Department's inspection personnel prepared an EDI Program Compliance Notification Checklist on the Puckett site. This report noted the circumstances of the discharge, to the effect that the used oil tank had been removed while used oil was still being disposed of through the drain at the service station. Thereafter, by its Order of April 16, 1987, the Department
advised Puckett that its site was not eligible for "Super Act" reimbursement. The denial of eligibility was based on the DER's position that used oil was not "petroleum" or a "petroleum product" for purposes of Section 376.301(9) or (10), Florida Statutes (Supp. 1986).
On May 8, 1987, Puckett filed a Petition for Formal Proceedings, alleging, among other things, that used oil is "petroleum" or "petroleum product" within the meaning of the "Super Act" and that the Department is estopped from denying "Super Act" reimbursement eligibility for voluntarily reported discharges of used oil.
Inasmuch as the DER conducted inspections of the site in question, recording its findings, the Department was aware of the circumstances of the discharge; that the used oil tank had been removed and that oil had continued thereafter to be placed in the drain facility, thus contaminating the soil where the used oil disposal tank had formerly been placed. The Department did not raise the eligibility exception involving gross negligence in the Order of April 16, 1987, however, nor by any other vehicle until the filing of its Motion for Continuance with the Hearing Officer on August 31, 1987. Additionally, in response to a Request for Admissions served by Puckett, the Department admitted that the sole basis for denial of the reimbursement eligibility for the Puckett site was the fact that the substance discharged was "used oil," which the Department contends is not petroleum or petroleum product and thus is not a proper subject for reimbursement of related clean up and decontamination expenses.
Uncontroverted evidence establishes that in August 1984, eleven oil changes at the Puckett site generated 3.5 quarts or about 9 1/2 gallons of used oil. Using this figure as an average, until the time the discharge was discovered 22 months later, the Puckett site generated approximately 210 gallons of used oil. Mr. Winters testified that he believed he had a 500 or 1,000 gallon used oil tank. Puckett's used oil was disposed of by inserting the drain bucket on the floor drain. The floor drain is a receptacle with an adapter on it for the oil drain bucket. Although the floor drain system appeared to be a working system, the underground used oil storage tank at the Puckett site had been removed, unbeknownst to Mr. Winters. It was apparently removed by Exxon Corporation, the previous site operator. It was Exxon's practice to remove fuel tanks from non-operational stations, such as the Puckett site was at the time it was sold to Puckett. It was not their normal practice, however, to remove used oil storage tanks. Mr. Winters, in his sixteen years of operating service stations, has never experienced a floor drain with such an adapter that was not connected to an underground storage tank. Further, he had previously leased a service station that had been purchased from Exxon after being closed for seven years and the used oil tank was still in place at the time he took possession of the station. He asked the person responsible for closing the Exxon station (the Puckett site) where the used oil tank was located. That person responded by pointing to an area of landscape shrubbery where a galvanized pipe could be seen protruding from the ground.
A used oil collection company attempted to pump the contents of the tank using that pipe. Three large holly bushes were growing undisturbed over the area where Mr. Winters had been told the tank was located. It thus appeared to Mr. Winters that the tank could not have been removed. There was no evidence that Mr. Winters attempted to conceal the discharge of the oil or that he continued to dispose of the used oil in the floor drain after discovering that the tank had been removed. If the floor drain had not become stopped up, Mr. Winters likely never would have begun looking for the presence of the tank.
A used oil collection company never was able to pump any used oil from the pipe supposedly connected to the tank. It was Mr. Winters' belief that used oil collection companies normally came to service stations after closing hours to pump the used oil storage tanks, so they can avoid paying for the used oil. It was for this reason, he believed, that he rarely had seen a used oil collection company trying to pump oil from such a storage tank. He was thus not concerned when the company reported that it could pump no used oil from the tank because he believed that another used oil collector had previously drained it.
The used oil discharged at the Puckett site consists of used engine crank case oil with an estimated two percent of used transmission oil. Used oil at the Puckett site is not mixed with solvents or other hazardous wastes. Puckett does not accept neighborhood collections of used oil.
An assessment of the contamination at the Puckett site was conducted by Delta Environmental Consultants. Delta had an analysis of soil samples prepared by Pioneer Laboratories and an analysis of ground water samples by Savannah Laboratories. Dr. Litt, the Petitioner Puckett's expert witness, opined, based on the contamination assessment, that the contamination was due to used oil or "used oil fuel" instead of "hazardous waste fuel" or hazardous waste. Dr. Litt relied on the testimony of Mr. Winters to the effect that solvents or other hazardous wastes were not mixed with the used oil at the Puckett site in the service station's operations. Based on the soil and ground water analyses supplied him, Dr. Litt found an absence of halogenated solvents which would commonly be mixed with used oil, thus corroborating Mr. Winters' testimony that the used oil at the Puckett facility was not known to have been mixed with any hazardous wastes.
The soil analysis indicates a level of organic halogens of 1,090 parts per million. This level might raise a presumption, under relevant EPA regulations, that the oil had been mixed somewhat with hazardous wastes, but Dr. Litt established that indeed no mixing had occurred based upon Mr. Winters' testimony, as well as the fact that the testing method used is accurate to only a plus or minus 700 parts per million in a total range of 1,000 to 2,000 parts per million. Indeed, some halogen levels may be attributed to natural soil conditions. Thus, the finding of 1,090 parts per million organic halogens could be as much as 700 parts per million in error, and some of this quantity can be due to natural backgrounds. Additionally, the level of individual chlorinated solvents sampled indicated no mixing of used oil with typical hazardous wastes.
International Petroleum Corporation
International Petroleum Corporation (International) has operated an oil storage plant and used oil reclamation facility at 105 South Alexander Street, Plant City, Florida, since May 1980. That site contains approximately
10 acres. There are two on-site tank farms containing 17 above-ground stationary tanks and two underground tanks. One underground tank holds 10,000 gallons and is used to store diesel fuel. The other tank holds 5,000 gallons and stores virgin gasoline. The above-ground tanks range in size from 8,000 to 212,000 gallons and are used to store oil, both used oil and new oil. All the tanks have been registered with the DER in accordance with its rules and are a part of the DER's "stationary tank system." The plant site also contains an office building and a testing laboratory which provides an array of testing services. The lab contains an atomic absorption unit, kinematic viscosity baths, API gravity hydrometers, distillation equipment and a gas chromatography.
International uses this equipment, operated by a trained chemist, to test incoming loads of oil for such things as viscosity, flash point, API gravity, heavy metals, halides, etc.
Since 1980, International has received, processed and sold more than 5,000,000 gallons of oil from this facility. The oil processed through the facility includes virgin kerosene, diesel, jet fuel and oils of various grades ranging from ASTM grade numbers 1-4 (the distillates) and ASTM grade numbers 5,
6 and "bunker C" (the residuals). The residual oils are those oils left after the lighter distillates are removed through the vacuum distillation process. The amount of residual oils processed since 1980 is relatively low, less than fifteen percent of the total amount of oils processed at International's facility. Out of 7,000,000 gallons processed in an average year, the plant may receive two or three carloads of grade numbers 5, 6 or bunker C.
From 1980 to 1985, approximately 7,000,000 to 12,000,000 gallons of virgin oils were processed at the facility. In each of those years, from 4,000,000 to 7,000,000 gallons of used oil were also processed. Over that five- year period approximately 20,000,000 gallons of used oil were processed and sold through the International facility.
International blends virgin oils received at the plant with used oils to meet particular specifications of a customer. It uses its own trucks to collect oil from service stations, automobile dealerships and other industrial accounts. Oil is then delivered to the plant and tested for basic constituents before being placed in an appropriate storage tank. International tests all incoming used oil to see if it meets the criteria for so-called "on spec" used oil or "off spec" used oil. These specifications were established by the EPA in 1985 and adopted by the DER. Used oil meeting these criteria may be burned as fuel in industrial and non-industrial boilers without limitations. The criteria are as follows:
Constituent/Property Allowable Level Arsenic 5 ppm maximum
Cadmium 2 ppm maximum
Chromium 10 ppm maximum
Lead 100 ppm maximum Total Halogens 4,000 ppm maximum
Flashpoint 100 degrees Fahrenheit minimum
International has followed a practice of rejecting incoming used oil which fails to meet the criteria of 1,000 parts per million or less of total halogens, which is the rebuttable threshold presumption of "hazardous waste" oil. International makes an effort to ensure that used oil it receives and processes is thus "on spec." It regularly sends samples to independent laboratories to cross-check its own laboratory testing results. It is selective in its sources of used oil and typically obtains used oil from large companies such as the Mack truck shops, car dealerships and other large volume producers of used oil. These are sources unlikely to be contaminated with any hazardous materials. The "on-spec" used oil accepted by International is placed in separate storage tanks, segregated according to water content and API gravity, viscosity and lead content. It is then blended with virgin oils to meet the specification of various customers. Heat is sometimes supplied in order to drive off water. The used oil undergoes no further treatment or alteration, being merely tested and blended to meet the customer's requirements. Often
blending is unnecessary. When a truckload is received, tested and found to meet specifications, it is sometimes directly delivered to a customer.
International sometimes obtains used oil without payment from its suppliers and has often purchased it from the generators of used oil. It always sells it to its customers, however. It has a definitely defined industrial market as a fuel commodity and is recognized as having value when sold for such purposes. It may sell for as little as 30 cents per gallon and has sold for much more than that, depending on the market conditions prevailing at the time of sale. It is used both as a burner fuel for industrial and non-industrial boilers, as well as a key constituent in the phosphate beneficiation process. International sells approximately 40 percent of its used oil production to asphalt plants where it is used to fire burners and to rock drying mills, also as a burner fuel.
It sells approximately 60 percent of its production of used oil to the phosphate companies for the beneficiation process. In that process, oil is used with other reagents and fatty acids to "float" phosphate out of the rock or ore in which it is contained, allowing it to be skimmed and separated. Although the oil is not burned as a fuel in this process, its use by the phosphate plants substitutes for virgin oils of ATM grade numbers 4 and 5 (heating oil) or in some cases kerosene or number 2 diesel.
In 1985, International produced 4,295,101 gallons of used oil which were burned as a fuel by its customers and in 1986 produced 2,221,652 gallons of used oil which were burned as a fuel. The used oil which it sells for the beneficiation process meets DER and EPA standards for "on spec" used oil fuel, except for the lead content, which fact is immaterial to its use for the beneficiation of phosphate. The used oil sold for phosphate purposes does meet pertinent regulatory standards for "off spec" used oil, in any event, so that it could be burned as industrial furnace fuel under EPA and DER rules.
The sale of used oil for final use as a burner fuel is very common. Many oil recyclers pick up used oil and take it directly to asphalt plants for burning as fuel without any blending or other treatment. International's sale of 60 percent of its used oil for phosphate processing is unique in the used oil industry, but is attributable to its close proximity to the central Florida phosphate plants. Most oil recycling facilities sell a larger percentage of their product for burner fuel than does International. The used oil which International sells as burner fuel is comparable to heating oil, ASTM grade numbers 2 or 4 and has a similar viscosity, specific gravity and flash point.
It can be poured and handled without preheating. Residual oil, however, such as grade numbers 5 and 6 (bunker C) are very viscous and require preheating in industrial boilers or burner furnaces before it can be burned as fuel. The used oil sold by International Petroleum is more similar to ASTM grades 2 and 4 (the distillates) than it is to grades 5 and 6 (the residuals).
Petroleum hydrocarbon contamination of the soil and groundwater at the International site was discovered in December 1983 by DER personnel. International retained a consultant to assess the site and determine the nature and extent of any contamination. It has already expended more than $50,000 in an effort to investigate and clean up petroleum contamination at its site.
DER conducted a soil and groundwater site investigation in 1985, which showed that hydrocarbons were in the soil and that volatile organics were also present in the groundwater at the site. International has provided all
background information requested by DER on site conditions existing prior to cleanup. This was for purposes of showing its entitlement to reimbursement eligibility.
The contamination at the site consisted mostly of small leaks, drips and spills associated with loading and unloading railway tank cars, as well as stationary tanks, over at least a five year period. The storage tanks include integral piping systems, and some leakage occurred at hose or pipe connections.
The petroleum products placed in the various tanks in the tank farm vary, so that the contamination existing at the site cannot be differentiated or attributed separately to used oils or virgin oils, to distillates (ASTM grades
1-4) or the heavier residuals. All are made up of hydrocarbons and their breakdown products in the ground are essentially indistinguishable. The record does not establish that any major or significant oil spills have occurred at the plant site and does not show that the operators have been particularly negligent or have failed to conform to industry standards. International has already taken remedial action by building high retaining walls and by removing contaminated dirt where repeated drippages occurred near the railroad tracks.
Employees have received training to avoid leaks from hoses and pipes and have been instructed to clean up even small spills immediately. Valve equipment has also been upgraded. As a result of these efforts, subsequent testing of the monitoring wells at the site has shown that the groundwater condition has markedly improved and it may be possible that the cleanup action already taken will be sufficient to accord with regulatory standards for groundwater.
Used Oil as "Petroleum" or "Petroleum Product"
Used oil is derived from crude oil and consists primarily of engine lubricating oil which is a form of hydrocarbon and a special fraction of the original crude oil. The lubricating oil consists of vacuum distilled base oil and atmospheric distillate portions of crude oil produced at a refinery and further refined by processes involving wax removal and solvent extraction. The remaining portion of lubricating oil consists of additives added to the base oil to improve certain physical properties such as rust inhibition and to improve viscosity. Many of these additives, in turn, are substantially comprised of base oil themselves.
Used oil also typically contains gasoline which condenses in the crank case, water, gasoline additives, lead sulfates, carbonates or oxides and other partial combustion products of gasoline motor fuel. Lead contained in used engine oil is produced by engines running on tetraethyl lead gasoline. This lead accumulates in the form of lead sulfate, lead carbonate or lead oxide, rather than tetraethyl lead in its original form. The sulfates, carbonates and oxides are insoluble and are not likely to be leached out by groundwater, in contrast to tetraethyl lead. Use of the oil does not change its basic chemical structure. The oil may be contaminated by various impurities resulting from partial combustion of gasoline, from rust, from condensed water and so forth, but these are essentially mechanical mixtures, rather than alterations of the chemical structure of the oil itself.
Aside from water, when oil is pumped from the ground at the well, two substances are produced at the well head: crude petroleum oil and natural gas, including casing head gas. Used oil is similar in nature to the petroleum products specifically listed in Section 376.301(10), Florida Statutes (Supp. 1986). The predominant use of used oil is as a fuel, similar to diesel, kerosene and gasoline. A fuel is a material burned as a source of heat, rather
than for disposal purposes. It can be either for propulsion purposes or for stationary equipment such as industrial boilers, asphalt plants and the like. Kerosene and diesel fuel are similar in terms of viscosity and BTU value to ASTM grade number 2 fuel oil. Used oil is thicker and more viscous than ASTM grades 2, 3 or 4, but not so viscous as grades 5 or 6. Neither does it have as high a BTU content as grade number 5 fuel oil. ASTM grade number 5 residual oil must be preheated before burning as a fuel. Viscosity is too high for the material to atomize properly at normal temperature. In fact, used oil can be used as a blending agent to blend down or reduce viscosity of grade number 5 oil and reduce the temperature to which number 5 oil must be preheated before burning.
With some variance from one sample to another, used oil typically is similar in viscosity and BTU value to ASTM grade number 3 or 4 fuel oil.
Gasoline, kerosene, diesel and used oil are all hydrocarbons which burn readily. These materials are mixtures of hydrocarbons, with additives which do not materially affect the properties of the hydrocarbon fuel, or its use as a fuel. Gasoline, in fact, is not classified by ASTM grade. Parenthetically, it thus appears that the Legislature did not intend to limit the scope of "petroleum product" by such considerations as only viscosity and BTU value.
"Petroleum products" are commonly used as fuels and are typically stored at service stations or storage tank facilities which can pose a danger of causing inland soil or water contamination, if improperly discharged. Gasoline, kerosene, diesel and used oil are commonly stored in tanks at facilities throughout the state.
Used oil does not have any meaningful similarity to the substances specifically excluded from the definition of petroleum or petroleum product by Section 376.301(10), Florida Statutes (Supp. 1986). Used oil, for instance, bears little similarity to liquefied petroleum gas or to petrochemical feed stocks, which latter products are used to supply the raw materials for chemical plants manufacturing petrochemicals of many types. Used oil only is similar to these substances to the extent that it is within the broad family of hydrocarbons derived from crude oil or gases, derived in turn from petroleum wells.
Likewise, the ASTM Grades 5 and 6 residual oils are based on the residuum or the heave viscous material left after the distillation process is applied to crude oil. This residuum is the material left that is too heavy to further distill. On the other hand, crank case lubricating oils and transmission oils, which are typically involved in the category "used oil" or "used oil fuel," are derived by the process of vacuum distillation such that they are distillation products, as opposed to residual products. "Bunker C" oils, and marine bunkering oils generally, are residual fuel products and, together with asphalt oil, are not used as fuel, at least not at inland locations. These materials likewise are typically not stored at inland service stations or bulk storage or reclamation facilities and locations.
Both the Federal Environmental Protection Agency (EPA) and the Florida DER, in their regulatory scheme concerning used oil, encourage its collection and recycling. Used oil is typically recycled as a fuel and as a lubricant, by being separated from its contaminants by a re-refining process. Indeed, the oil constituent of used oil is not altered by use as lubricating or transmission oil, but rather is rendered in a "used oil" state by being subjected to various contaminants. It is not presently economically viable, given low virgin oil prices, to recycle used oil for lubricating oil. Thus, the two alternatives for
disposition of used oil are to deposit it in landfills, a practice now generally prohibited by the DER and other regulatory authorities, or to use it as a fuel. Indeed, the use of used oil as a fuel is about the only practical way to dispose of it safely and legally in view of former uses, such as road oiling for dust control and weed abatement, now being prohibited in potable water aquifer areas. Section 403.75(2), Florida Statutes (1985). Thus, it is not only common and general practice to burn used oil as a boiler fuel and as a fuel in various industrial and utility plants, at the present time-that is almost the only manner in which it can be legally and safely disposed of.
The Department itself has a policy encouraging the collection and recycling of used oil, as lubricating oil, fuel or as a feed stock in the manufacturing of other petroleum products. (See IP Exhibits 17, 18 and Joint Exhibit 5 in evidence.)
Under EPA regulations which have been adopted by DER, used oil is not regulated as a hazardous waste. Under these regulations, the EPA has adopted a "rebuttable presumption of mixing" in order to distinguish between used oils which have been contaminated through mere use and used oils which have been mixed with hazardous wastes and therefore must be regulated as hazardous wastes or "hazardous waste fuel."
Certain hazardous, halogenated constituents, such as chlorinated solvents, are the hazardous wastes typically found mixed with used oil. The "presumption of mixing" provides that any used oil containing greater than 1,000 parts per million of total halogens (such as chlorine, fluorine, bromine, iodine and similar substances) is presumed to have been mixed with a hazardous waste and will be regulated as "hazardous waste fuel" under 40 CFR Part 266, Subpart D, rather than as "used oil fuel" under 40 CFR Part 266, Subpart E. Hazardous waste fuel is essentially a hazardous waste with a BTU value of at least 5,000 BTUs per gallon. Hazardous waste fuel burning is tightly regulated by the EPA and DER.
The presumption of mixing can be rebutted through a demonstration that the used oil in question has not been mixed with any hazardous waste. If mixing of used oil with hazardous wastes is known to have occurred, however, the oil is regulated as a hazardous waste when it is burned for energy recovery.
Once it has been determined that a particular used oil is a used oil fuel and not a hazardous waste, the used oil falls into one of two categories: "Specification used oil fuel" or "off-specification used oil fuel." Specification used oil contains essentially the same toxic constituents as virgin oil fuels. Off-specification used oil fuel contains elevated levels of toxic components. Most used oil is off-specification, particularly if it is made up of mixtures of several types of used oil. If oil comes from a service station which was used in an engine burning leaded gasoline it would likely result in the used oil from that engine being off-specification due to the toxic lead compounds which would be present in the oil. If the oil was used in an engine which burned unleaded fuel, it is likely that it would be within specification limits for "on-specification used oil." Neither type of used oil is regulated as hazardous waste when burned as fuel, however.
For purposes of determining whether an oil fuel is off-specification on on-specification, the EPA has developed a list [at 40 CFR Section 266.40(e): of contaminants, with the allowable levels for each contaminant, below which oil will be determined to be "on specification." Those contaminants are arsenic (5 ppm), cadmium (2 ppm), chromium (10 ppm), lead (100 ppm), with total halogens
not exceeding 4,000 ppm in order for used oil to be within specification for nonindustrial burning. Specification used oils may be burned as fuel in nonindustrial boilers, including schools, hospitals, and apartment buildings. Off-specification used oil fuel may be burned in industrial furnaces, industrial boilers, utility boilers and some space heaters meeting certain federal safety requirements. Moreover, EPA regulations allow the blending of off-specification and specification used oil so that the resultant used oil, when burned, meets the specifications for nonindustrial burning.
The Department's policy makers who were responsible for the initial decision that used oil is not petroleum or a petroleum product did not consult with certain key personnel in the Department's own used oil section concerning whether oil should be considered as a petroleum or petroleum product. In fact, Mr. Gentry, who is involved in policy making regarding the subject matter of the "Super Act," was not aware that the Department has a program to encourage the burning of used oil as a fuel nor the fact that used oil is extensively burned as a fuel in Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The 1986 Florida Legislature enacted Section 376.3071, Florida Statutes (Supp. 1986), also known as the "Super Act," as amended. The Legislature created in this section the so-called "Inland Protection Trust Fund" (IPTF) in order to address a problem perceived by the Legislature as consisting of significant quantities of petroleum and petroleum products being stored in underground storage systems which are prone to spills, leaks and other discharges, with resultant possible contamination of ground or surface water. It was the legislative desire to effect remedial measures and to provide adequate financial resources to rapidly effect clean-up of petroleum or petroleum product spills and contamination so as to protect potable water supplies. In order to address this problem, the IPTF was created to carry out the purposes enunciated in Section 376.3071(2) , Florida Statutes (Supp. 1986) , as follows:
"(2) Intent and Purpose. -- It is the intent of the Legislature to establish the Inland Protection Trust Fund to serve as a repository for funds which will enable the Department to respond without delay to incidents of inland contamination related to the storage of petroleum and petroleum products in order to protect the public health, safety and welfare and to minimize environmental damage."
The funds placed in this repository may be used to investigate and assess conditions at contamination sites; restore or replace potable water supplies and remediate and rehabilitate contamination sites through clean-up of contaminated soil, groundwater and inland surface water; to maintain and monitor contamination sites and to inspect and supervise clean-up operations. See Section 376.3071(4), Florida Statutes (Supp. 1986)
To implement this legislation, the Legislature created the EDI Program, Section 376.3071(9), Florida Statutes (Supp. 1986), and the Reimbursement Program at Section 376.3071(12), Florida Statutes (Supp. 1986). Under the EPI Program, contamination sites reported to the DER during a grace period extending from July 1, 1986 through October 1, 1988 are 4 "qualified sites." These sites must be prioritized according to criteria contained in Section 376.3071(5)(a), Florida Statutes (Supp. 1986). After being prioritized, the Department must clean up the site, without recourse for recovery against the responsible party, subject to the exclusions in Section 376.3071(9), Florida Statutes (Supp. 1986).
The purpose of the reimbursement program is to encourage volunteer rehabilitation of contamination sites "in order to provide for rehabilitation of as many contamination sites as possible, as soon as possible." Section 376.3071(12)(a), Florida Statutes (Supp. 1986). Sites reported to the DER on or before September 30, 1988, may be entitled to reimbursement for reasonable costs of clean-up which have been incurred on or after January 1, 1985, without recourse by the State against the discharger. Persons intending to file for reimbursement must notify DER within 30 days of initiating their site rehabilitation, providing documentation of the site conditions prior to clean- up. See Section 376.3071(12)(b) and (c), Florida Statutes (Supp. 1986). Contaminators are ineligible for reimbursement regarding sites to which the DER was denied access, with regard to which the owner or operator was grossly negligent in maintaining the petroleum storage system, as well as sites owned or operated by the federal government or which were under enforcement action before initial remedial action was commenced. DER then must determine whether the site is eligible for reimbursement within the purview of Section 376.3071(12)(c)and (e), Florida Statutes (Supp. 1986), within a period of 60 days after receipt of the Notice of Intent to Seek Reimbursement.
The Legislature created, in Section 376.3071(13), Florida Statutes (Supp. 1986), the Financial and Technical Advisory Committee to review IPTF site rehabilitation projects which are reasonably anticipated to obligate that trust fund in excess of $500,000. The Legislature also specifically provided that the provisions of the "Super Act" shall be liberally construed to effect the purposes of the trust fund, including prompt response to incidents of inland contamination related to storage of petroleum and petroleum products, in order to protect the environment and the public health, safety and welfare. Section 376.315, Florida Statutes (Supp. 1986).
The term "petroleum" is defined in Section 376.301(9), Florida Statutes (Supp. 1986), as follows:
"(9) `Petroleum' includes:
Oil, including crude petroleum oil and other hydrocarbons, regardless of
gravity, which are produced at the well in liquid form by ordinary methods and which are not the result of condensation of gas after it leaves the reservoir; and
All natural gas, including casing head gas, and all other hydrocarbons not defined as oil in paragraph (a).
The term "petroleum product" is defined in Section 376.301(10), Florida Statutes (Supp. 1986), as follows:
"(10) `Petroleum product' means any liquid fuel commodity made from petroleum, including, but not limited to, all
forms of fuel known or sold as diesel fuel, kerosene, all forms of fuel known or sold as gasoline, and fuels containing a mixture of gasoline and other products, excluding liquefied petroleum gas and American Society for Testing and Materials (ASTM) Grades number 5 and number 6 residual oils, bunker C residual oils, intermediate fuel oils (IFO) used for marine bunkering with a viscosity of 30 and higher, asphalt oils, and petro chemical feed stocks" (emphasis supplied).
The quintessential issue in this proceeding is thus whether used oil is "petroleum" or a "petroleum product" within the meaning of the above statutory authority. In this context, great weight is ordinarily ascribed by the courts to an agency's construction of its organic statute and the terms contained therein. Department of Insurance vs. Southeastern Volusia Hospital District, 438 So.2d 815 (Fla. 1983). That construction or interpretation must accord with the plain and ordinary meaning of the words involved, however. Southeastern Fisheries Assn., Inc. vs. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984). Agencies are not free to disregard established rules of statutory construction nor to, under the guise of putative agency expertise and policy-making, effectively modify a statute and thus pose additional criteria or strictures which the Legislature did not envision. Palm Harbor Special Fire Control District vs. Kelly, 500 So.2d 1382, 1387 (Fla. 2nd DCA 1987); Roberts vs. Department of Professional Regulation, 12 FLW 1634 (Fla. 1st DCA 1987); Department of Health and Rehabilitative Services vs. McTigue, 387 So.2d 457 (Fla. 1st DCA 1980).
The Department takes the position that the term "petroleum" should be restricted in its meaning to include only substances in the form in which they are produced at the well head. The definition of "petroleum" specifically enumerates crude petroleum oil and natural gas, including casing head gas.
Based upon the testimony in this case, those were the only two known substances "produced at the well." If the Department's construction of Section 376.301(9), Florida Statutes (Supp. 1986), was accepted, the words "and other hydrocarbons" included in Subsection (a) and "and all other hydrocarbons not defined as oil in Paragraph (a)" would be rendered superfluous. The plain reading of this statute indicates that the Legislature did not intend to narrow the definition of "petroleum" to include only substances in the form in which they are originally produced at the well head. Instead, it obviously intended to include not only hydrocarbons "produced at the well" but "all other hydrocarbons," even in other forms in which they might occur after refinement processes are applied or after various market uses. A statute must be construed so as to give meaning to all words and phrases within that statute and statutory language must not be assumed to be superfluous. Terrioni vs. Westward Ho!, 418 So.2d 1143, 1146 (Fla. 1st DCA 1982). In fact, when the language of a statute is plain in its meaning, unambiguous and conveys a clear and definite meaning, there is no occasion to interpret it, but rather all that need be done is to carry out the legislative intent on the face of the statute. See VanPelt vs. Hilliard, 78 So. 693 (Fla. 1918)
Technical words are those "belonging or peculiar to an act or profession." See City of Tampa vs. Thatcher Glass Cor., 445 So.2d 578 (Fla. 1984). The word "hydrocarbon," according to the testimony in this case, has a meaning both in the field of chemistry generally and peculiarly within the petroleum industry. Because the Super Act is addressed essentially to the petroleum industry, the word "hydrocarbon" must be given the meaning prevailing in that industry. Hydrocarbons, for purposes of this case, are thus petroleum- based compounds predominately made up of carbon and hydrogen atoms, but which may include other additives or impurities. Used oil is clearly a hydrocarbon, as witness Gentry, for DER, himself admits. Accordingly, in light of the foregoing discussion, used oil clearly must be concluded to be "petroleum" within the meaning of Section 376.301(9), Florida Statutes (Supp. 1986).
The record establishes that used oil is clearly a "liquid fuel commodity made from petroleum." Obviously, it is in liquid form and it is a commodity since it is something useful, valuable or an economic "good" such as ". . . an article of commerce." See Webster's New Collegiate Dictionary, (1981). Used oil is clearly an article of commerce in Florida and has use, advantage or value for purposes of this definition. That use, advantage or value is as fuel, as demonstrated in the above Findings of Fact. It obviously is made from petroleum as well. Thus, used oil clearly falls within the definition of "petroleum product" contained in Section 376.301(10), Florida Statutes (Supp. 1986). That statute provides a nonexclusive list of specific fuels such as diesel, kerosene and gasoline and specifically excludes certain products such as liquefied petroleum gas, ASTM Grades number 5 and 6 residual oils, and bunker c residual oil. The evidence of record and the Findings of Fact above do not show that used oil falls within any of these specifically listed excluded substances, and the list of specific fuels is clearly a nonexclusive list, not encompassing the entire universe of fuel commodities which can be "petroleum products."
The Department's interpretation of Section 376.301(0), Florida Statutes (Supp. 1986), imposes an additional, inconsistent criteria for determining what types of substances are included within the meaning of "petroleum product," which criteria is not found in the statute. It is true that before crank case oil and transmission oil, and the other elements of used oil become used oil, that they are sold and used as lubricants and not as fuels. That is, as originally produced at the refinery, they are intended to be used as lubricants. This, however, does not alter or detract from the fact that after they are so used they enter a different stream of commerce as found (and spilled) at the Petitioner's location. That commercial use is as a liquid fuel, meeting the above definition of "commodity" and "liquid fuel commodity." The Department's contention that the liquid fuel commodity test be applied only at the time of original production or initial sale of the product is clearly not one expressed or reasonably implied on the face of the statute in question and is rejected.
This interpretation urged by the Department is not based on "demonstrated agency expertise." That being the case, the rule of law requiring courts to afford "great deference" to an agency's interpretation of a statute is largely rendered inapplicable. Schoettle vs. State of Florida, Department of Administration, 513 So.2d 1299 (Fla. 1st DCA 1987). The terms used to describe the class of materials falling within the definition of "petroleum product" for purposes of the above statute are not highly technical or specialized terms, but are clearly susceptible to a plain meaning interpretation. See Department of
Professional Regulation, Board of Professional Engineers vs. Florida Society of Professional Land Surveyors, 475 So.2d 939 (Fla. 1st DCA 1985).
To the extent that DER's restrictive interpretation of the terms "petroleum" and "petroleum product," which it espouses here, constitutes an attempt to enunciate agency policy in that regard, that policy has not been adequately explicated in this record. When an agency relies on policies not incorporated in its rules, it must defend and explicate its reasons for such discretionary action. Department of Administration vs. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977). The stated purpose of the reimbursement provision of the Super Act is to provide for rehabilitation of as many contaminated sites as possible, as soon as possible, and to encourage voluntary rehabilitation of sites such as service stations, bulk plants and other such sites where inland contamination is likely to occur. Section 376.3071(12), Florida Statutes (Supp. 1986). By interpreting "petroleum product" in the restrictive manner it attempts to use herein, DER is not furthering the legislative intent of encouraging speedy clean-up of contaminated petroleum sites, since clean-up funds from the IPTF would thus be placed out of reach. The Department's interpretation disregards the language of the Super Act which requires it to give such liberal construction to the statute "as will accomplish the purposes set forth in this subsection."
The Super Act's main purpose is to foster clean-up of discharges of pollutants occurring during storage at gasoline stations, tank farms, bulk plants and other facilities which service inland gasoline service stations. These discharges create a threat to the inland surface and ground water. Most used oil in Florida is stored at such facilities and in fact the Department encourages these facilities to collect and store used oil for recycling. Accordingly, the putative policy of the Department, if carried to fruition, would frustrate the clear legislative impetus behind passage of the Super Act, which is to encourage prompt, thorough clean-up of discharges of such petroleum- based pollutants. Such a policy and course of action by the Department would be illogical.
Finally, the Department has been precluded from raising the issue of Puckett Oil Company's alleged "gross negligence" at hearing by the granting of the Petitioner's Motion in Limine. The Department relies on DeCarion vs. Department of Environmental Regulation, 445 So.2d 619 (Fla. 1st DCA 1984), which it contends allows it to raise the "new issue" of gross negligence at hearing. The DeCarion case actually involved new issues which were really contained within the reasons stated in the proposed agency action pertaining to that case, wherein the Department claimed that proposed dredge and fill activities would violate Class III Surface Water Standards. At the hearing in that case, the Department argued that the dredge and fill activities would also violate Outstanding Florida Water criteria which are more stringent than the Class III Standards. Moreover, in the DeCarion situation, the applicant had three months' notice, prior to hearing, that those new issues would be raised. In the instant situation, the Puckett Oil Company had less than two weeks' notice that the gross negligence theory would be pursued and it would have been unduly prejudiced by the late assertion of that new theory, especially since the Department had known of the circumstances concerning its discharge of oil for nearly a year. Further, the Department, by an admission pursuant to Rule 1.370, Florida Rules of Civil Procedure, had already established that gross negligence would not be an issue in the proceedings.
Notwithstanding the foregoing, Mr. Winters' conduct at the Puckett site does not really rise to the level of "gross negligence." "Gross
negligence" is a "grossly careless disregard of the safety and welfare of the public, or that reckless indifference of the rights of others which is equivalent to an intentional violation of them." See Urling vs. Helms Exterminators, Inc., 468 So.2d 451 (Fla. 1st DCA 1985). In the case at bar, Mr. Winters had been advised that a used oil tank was located at the Puckett site.
It was the previous station owner's practice to leave used oil tanks in the ground upon closing a station, and Mr. Winters knew this. The used oil management system at the Puckett site had all the outward, visible appearances of a working system. Because, in Mr. Winters' experience, used oil was typically removed unannounced, after business hours, by used oil collectors, Mr. Winters had no real basis for believing that anything was amiss at the Puckett site when he was discharging used oil into the used oil drain. It thus cannot be concluded that he and Puckett Oil Company exhibited a "grossly careless disregard of the safety and welfare of the public or reckless indifference to the rights of others" with regard to the Puckett Oil Company contamination occurrence. It has not been shown that Mr. Winters, the operator of the site, failed to act to prevent the contamination after he had reason to believe that it was occurring. While it was occurring, it was not shown that he had any belief that anything was amiss with the oil drainage and storage system.
Accordingly, in view of the evidence of record and the above Findings of Fact, it is concluded that the applications for eligibility for reimbursement filed by the Petitioners should be granted. The criteria for eligibility contained in Section 375.3071(12), Florida Statutes (Supp. 1986), have been met. The applications for eligibility for reimbursement of clean-up costs related to used oil and the petroleum products not on the excluded list in the above- mentioned statutory sections, should be granted as to those eligible materials.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that the applications of Puckett Oil 4 Company and International Petroleum Corporation for eligibility for reimbursement pursuant to Section 376.3071(12), Florida Statutes (Supp. 1986), be granted.
DONE and ENTERED this 7th of June, 1988, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 7th day of June, 1988.
APPENDIX TO RECOMMENDED ORDER CASE NOS. 87-2161 & 87-2465
Petitioners' Proposed Findings of Fact: 1-23. Accepted.
24. Rejected as subordinate to the Hearing Officer's findings on this subject matter.
25-38. Accepted.
39-40. Rejected as subordinate to the Hearing Officer's findings and as not directly material.
41-45. Accepted.
46-48. Rejected as not material and relevant. 49-54. Accepted.
55. Rejected as subordinate to Hearing Officer's findings on this subject matter.
56-58. Accepted.
59. Rejected as subordinate to Hearing Officer's findings on this subject matter.
60-63. Accepted.
64. Rejected as subordinate to the Hearing Officer's findings on this subject and as unnecessary to the resolution of material issues.
65-70. Accepted.
71. Rejected as irrelevant.
72-77. Rejected as subordinate to the Hearing Officer's findings on this subject.
Accepted, but not directly relevant and material.
Accepted.
Respondent's Proposed Findings of Fact: 1-5. Accepted.
6. Rejected as subordinate to the Hearing Officer's findings on this subject matter.
7-8. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as immaterial, in part, because the Hearing Officer, in determining whether the material at the subject sites meets the statutory definitions at issue is not, by the "pleading" confronted with the issue of whether any and all types of "used oil" meet these definitions, rather merely those types comprising the contamination at Petitioner's facility. The Hearing Officer cannot, in this proceeding, issue declaratory statements or advisory opinions.
Accepted.
Accepted, except for the next to last sentence. 11-12. Accepted.
Accepted as to its historic accuracy, but not as a resolution of the essential issue presented.
Rejected as immaterial in the absence of a Motion to Compel further, more detailed answers.
Accepted as to its historical accuracy, but, for reasons similar to the ruling next above, not as probative of the appropriate, timely raising of the issue of gross negligence.
16-24. Accepted.
25-26. Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Accepted.
Accepted as to its historical import.
29-38. Accepted.
39. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant evidence of record.
40-43. Accepted.
44-45. Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Rejected as not constituting a finding of fact, but, rather, a conclusion of law and statement of policy.
Rejected as contrary to the preponderant evidence, as subordinate to the Hearing Officer's findings and as largely immaterial.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter; as being partially immaterial and as a discussion of policy and not a pertinent finding of fact.
51-53. Rejected as constituting legal argument and not a finding of fact. 54-55. Rejected as constituting legal argument.
56. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence.
57-58. Rejected as - subordinate to the Hearing Officer's findings on this subject matter.
Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
61-63. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence.
Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence and as constituting, in part, legal argument instead of fact finding.
Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence.
Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence.
Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence.
Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter, as contrary to the preponderant weight of the evidence and, standing alone, of scant materiality in proving whether used oil is a "petroleum product" or a "fuel commodity."
Rejected as contrary to the preponderant weight of the evidence.
78-80. Accepted in part, but not as to its material import and subordinate to the Hearing Officer's findings on this subject matter.
81-84. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant credible evidence.
85. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant credible evidence and as largely immaterial.
86-87. Rejected as immaterial to the ultimate factual and legal issues. 88-89. Accepted.
Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant credible evidence.
Accepted.
92-93. Rejected as subordinate to the Hearing Officer's findings on this subject matter.
94-95. Rejected as subordinate to the Hearing Officer's findings on this subject matter and not in itself material.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Rejected as not comporting with the preponderant weight of the evidence and as immaterial.
Rejected as immaterial and irrelevant.
Rejected as subordinate to the Hearing Officer's findings and as not directly material and relevant.
Rejected as not in accordance with the preponderant weight of the evidence.
Rejected as subordinate to the Hearing Officer's 4 findings on this subject matter.
102-103. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as to its purported material import.
104. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as to its purported material import and further as not being in accord with the preponderant weight of the evidence.
105-106. Rejected as constituting legal argument and discussion.
107-109. Rejected as constituting legal argument and discussion and as contrary to the preponderant weight of the evidence.
110-111. Rejected as constituting legal argument and discussion.
112-113. Rejected as constituting legal argument and discussion and as contrary to the preponderant weight of the evidence.
Rejected as constituting legal argument and discussion.
Accepted but subordinate to the Hearing Officer's findings and not, in itself, material to the legal issue sub judice.
Rejected as contrary to the preponderant weight of credible evidence.
Rejected as not in itself material and as contrary to the preponderant weight of the credible evidence.
Rejected as not in itself material and as contrary to the preponderant weight of the credible evidence and as constituting legal argument and discussion.
119-120. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as to its purported material import and further as not being in accord with the preponderant weight of the evidence.
COPIES FURNISHED:
Robert D. Fingar, Esquire HUEY, GUILDAY, KUERSTEINER
& TUCKER Regulation Suite 510
First Florida Bank Building Post Office Box 1794 Tallahassee, Florida 32302
Dale Twachtmann, Secretary Department of Environmental Blair 2600 Stone Road Tallahassee, Florida 32399.
L. Caleen, Jr., Esquire OERTEL & HOFFMAN
2400 Blair Stone Road Tallahassee, Florida 32301
E. Gary Early, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 08, 1988 | Recommended Order | Agency determination otherwise does not involve expertise and costs no deference. |
UNION 76 (NO. 138503963) vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-002161 (1987)
PETROLEUM PRODUCTS CORP. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-002161 (1987)
RED TOP SEDAN, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-002161 (1987)
MARR EXXON SERVICE CENTER vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-002161 (1987)
CHEVRON U.S.A., INC. (138505169) vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-002161 (1987)
