STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLASH FOODS, INC., )

)

Petitioner, )

vs. ) CASE NO. 88-1391

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before Diane Cleavinger, duly designated Hearing Officer, on March 8, 1989 in Jacksonville, Florida. The appearances were as follows:

APPEARANCES

FOR PETITIONER: James C. Jones, III, Esquire

Post Office Box 2149 Waycross, Georgia 31502

FOR RESPONDENT: D. Gary Early, Esquire

State of Florida

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

This cause arose upon the Department of Environmental Regulation's proposed denial of eligibility for participation in the Early Detection Incentive (EDI) program to Petitioner, Flash Foods, Inc. The EDI Program was established in the State Underground Petroleum Environmental Response (SUPER) Act of 1986 and is codified in Section 376.3071, Florida Statutes. The EDI Program provides for state sponsored cleanup of sites contaminated as a result of a discharge from a petroleum storage system.

PRELIMINARY STATEMENT

Petitioner timely requested formal proceedings pursuant to Section 120.57, Florida Statutes contesting its denial of eligibility. The matter was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner presented the following witness:

1. Joseph Anthony Rentz, Director of Real Estate and Engineering for Flash Foods.

At the hearing the Department presented the following witnesses:

1. Timothy J. D. Haney, Environmental Specialist II with the tanks section of the Department;

   
   

2. John Paul Svec, a professional engineer with the Department's Bureau of Waste Planning and Regulation, Stationary Tank Regulation Section. Mr. Svec was accepted as an expert in storage tank management and regulation; and

   
   

3. Craig Ash, Environmental Supervisor II with the Department's Bureau of Waste Cleanup.

The Petitioner and Respondent filed their proposed recommended orders on April 6, 1989 and May 19, 1989, respectively. The parties proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, and codified primarily in Section 376.3071, Florida Statutes. It provides for the expeditious cleanup of property contaminated as the result of storage of petroleum or petroleum product.

   
   

2. The EDI Program, Section 376.3071(9), Florida Statutes, was created as part of the SUPER Act. The EDI Program provides for state cleanup of sites contaminated as a result of discharge from a petroleum storage system.

   
   

3. The legislature provided that some contamination sites would not be eligible for the EDI Program. In Section 376.3071(9)(b)3., Florida Statutes, the Legislature provided that:

   
   

   Upon discovery by the Department that the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system

   ...the site at which such system is located shall be ineligible for participation in the incentive program and the owner shall be liable for all costs due to discharges from petroleum storage systems at that site, any other provisions of Chapter 86-159, Laws of Florida, to the contrary notwithstanding.

   For the purposes of this paragraph, willful failure to maintain inventory and reconciliation records, willful failure to make monthly monitoring system checks where such systems are in place and failure to meet monitoring and retrofitting requirements within the Florida Administrative Code, or violation of similar rules adopted by the Department of Natural Resources under this

   Chapter, shall be construed to be gross negligence in the maintenance of a

   petroleum storage system. (emphasis applied)

   
   

4. In late 1984 Flash Foods bought property located at 10143 Beach Boulevard, Jacksonville, Florida. Petitioner operated its Flash Foods Store #112 at that location. Store #112 sold motor fuels to the general public. The fuel was stored in underground storage tanks.

   
   

5. Specifically, the store site consisted of a building containing the fast food store and eight storage underground tanks located in two tank excavations.

   
   

6. Six tanks are located to the west of the building in a single excavation. Two tanks are located to the east of the building in a single excavation.

   
   

7. The six tanks to the west of the building were of unknown age. Tanks for which an installation date is unknown are treated as tanks installed before 1970, and were required to be retrofitted with monitoring wells by December 31, 1986.

   
   

8. The two tanks to the east of the building were installed in 1974. The tanks installed in 1974 were required to be retrofitted with monitoring wells by December 31, 1987.

   
   

9. At some time prior to December 31, 1986, inventory records revealed that two of the tanks in the site's western excavation were leaking. Those tanks were taken out of service at that time. The remaining six tanks were kept in service.

   
   

10. At about the same time, Flash Foods decided to take all the remaining tanks out of service and replace them as soon as possible. The company felt that the six tanks which had been kept in service were likely to develop leaks. Additionally, Petitioner decided not to install monitoring wells and retrofit the six storage tanks. The decision was based on the fact that the tanks would be taken out of service as soon as possible and it made no fiscal sense to install very expensive wells and complete very expensive retrofitting.

    
    

11. The four tanks in the western excavation and the two tanks in the eastern excavation which had been kept in service were removed in May, 1988.

    
    

12. In 1987, Flash Foods installed two piezometers or test wells at the site. These piezometers are not monitoring wells as that term is used in Chapter 17-61, Florida Administrative Code. They are temporary in nature, and do not comply with what is recognized as a permanent monitoring well.

    
    

13. One piezometer was placed near each excavation. In order to meet the monitoring and retrofitting requirements of Chapter 17-61, Florida Administrative Code, a series of four monitoring wells was required for each excavation. The monitoring wells were required to be placed either at the corners or the midpoint of the excavation. Clearly Petitioner did not meet the Department's requirements for the number of monitoring wells or the placement of those wells.

    
    

14. After taking water samples the presence of contamination at the site was conf confirmed. The two test wells did not show any further ground

    contamination. The piezometers were then covered over with soil and no further test samples were taken from the wells.

    
    

15. From December 31, 1986, the date retrofitting of the tanks in the western excavation was to have occurred, until 17 months later when the tanks were removed, Flash Foods continued to measure the tanks' inventory.

    
    

16. From December 31 1987, the date retrofitting of the tanks in the eastern excavation was to have occurred, until 5 months later when the tanks were removed, Flash Foods continued to measure the tanks' inventory. The inventories did not reveal any further leakage from the remaining tanks.

    
    

17. Inventory is measured by placing a stick into the tank and measuring the inches of product in the tank.

    
    

18. In most cases, accuracy to a quarter of an inch is the best that can be achieved through stick measurement. A quarter of an inch translates to a differential of from 25 to 40 gallons.

    
    

19. Inventory record keeping can detect catastrophic leaks from tanks, but is ineffective for small leaks.

    
    

20. For that reason, inventory record keeping by itself is not an allowable method of leak detection pursuant to Chapter 17-61, Florida Administrative Code. Monitoring wells are also required so that small leaks can be detected. Inventory record keeping, therefore, does not excuse the failure of a site to install monitoring wells in accordance with Chapter 17-61, Florida Administrative Code.

    
    

21. Monitoring wells are required at sites which have experienced discharge in order to detect subsequent discharges at the site. Rapid detection of discharges is necessary to allow contamination to be restricted to the site, to determine whether the contents of a tank need to be removed and to determine the cleanup measures which may be required at the site.

    
    

22. If monitoring wells are sampled monthly and the results recorded so that thicknesses are provided, information regarding the existence of a subsequent discharge would be available.

    
    

23. Due to the lack of a monitoring system for leak detection, it is not possible to know if subsequent discharges occurred at this site from the tanks at the site.

    
    

24. Failure to detect a leaking tank will result in greater contamination concentrations, larger plume size and greater costs of cleanup.

    
    

25. Under the Early Detection Incentive Program, greater costs of cleanup will be passed along to the state.

    
    

26. The Department has consistently, as a matter of agency practice, denied eligibility to sites at which monitoring retrofit requirements have not been met.

    CONCLUSIONS OF LAW

    
    

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

    
    

28. The primary issue involved in this litigation is whether the Department acted within its delegated legislative authority in excluding Flash Foods' site from the Early Detection Incentive Program on the ground that the owner or operator of the site failed to meet the monitoring and retrofitting requirements within the schedules established under Chapter 17-6, Florida Administrative Code.

    
    

29. The Department has the responsibility and statutory authority to implement and administer the provisions of Chapter 376, Florida Statutes.

    
    

30. The standard of review in this case is whether the Department's interpretation of the statute, which it has been charged with the duty to administer, is within the range of possible interpretations. If it is, the Department's interpretation must be upheld. Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984); Nelson, supra at 858.

    
    

31. As the parties asserting the affirmative, Petitioner has the burden of proof to demonstrate entitlement to participate in the EDI Program, Section 376.3071(9), Florida Statutes. Irvine v. Duval County Planning Commission, 466 So. 2d 357 (Fla. 1st DCA 1985), quashed 495 So. 2d 167 (Fla. 1986), on remand

    504 So. 2d 1265 (Fla. 1st DCA 1986). University Medical Center, Inc. v. Department of Health and Rehabilitative Services, 483 So. 2d 712 (Fla. 1st DCA 1985); Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

32. The Department has the burden of proof to demonstrate whether any exclusions to eligibility apply to a site.

33. Section 17-61.060(2)(c)2., F. A. C., provides that: In achieving the above compliance,

    retrofitting shall be completed by December

    31 of the appropriate year shown in the table below. If the age of the tank cannot be determined, retrofitting shall be completed by the earliest date shown.

    Year Retrofitting Required Year Tank 1986 1987 1988 1989 1992 1995 1998

    Installed

    
    

    Prior to 1970 MO LR

    
    

    1970-1975		MO			LR
    1976-1980			MO			LR
    1981- Sept. 1,	1984			MO			LR

    MO = Installation of Monitoring System and Devices and Overfill Protection.

    
    

    LR = Lining or Replacement of Non-Approved Type Tanks.

    
    

34. The evidence submitted at this hearing is uncontroverted that the tanks in the western excavation were of unknown age, and were therefore required by Chapter 17-61, F.A.C. to be retrofitted with monitoring wells by no later than December 31, 1986; and that the tanks in the eastern excavation were installed in 1974, and were therefore required by Chapter 17-61, F.A.C. to be retrofitted by no later than December 31, 1987. Flash Foods failed to meet the monitoring and retrofitting requirements for its tanks by the specified dates.

    
    

35. Section 376.3071(9)(b)3., Florida Statutes specifically provides that failure to meet the monitoring well requirements within the time frames of Chapter 17-61, F.A.C. constitutes gross negligence. The operation of a petroleum storage system in a grossly negligent manner operates as a statutory bar to the site's eligibility.

    
    

36. Section 376.3071(9)(b)3., Florida Statutes lists a number of factors which are considered to be gross negligence for purposes of the statutory exclusions. Most of these factors require that there be some "willful" act before the exclusion applies. However, for purposes of the monitoring and retrofit requirements, the legislature provided that the "failure" to accomplish those requirements would be construed as gross negligence. Flash Foods clearly failed to meet those requirements. Additionally, the evidence showed that Petitioner made an informed decision not to install monitoring wells and retrofit the storage tanks at store # 112 since it planned to completely remove those tanks. In that sense Petitioner willfully did not comply with Departmental requirements.

    
    

37. The exclusions to eligibility under Section 376.3071(9), Florida Statutes, do not require that the excluding act be the cause of a discharge or resulting contamination. Therefore, the question of whether Flash Foods' failure to meet the monitoring and retrofit requirements of Chapter 17-61,

    F.A.C. contributed to the contamination, or whether the exclusion is appropriate is not at issue in this case. The Supreme Court of Florida has consistently held that "[t]he legislature has broad discretion in determining necessary measures for the protection of the public health, safety and welfare, and we may not substitute our judgment for that of the legislature as to the wisdom or policy of a legislative act." State v. Yu, 400 So. 2d 762, 764 (Fla. 1981).

    
    

38. Given the statutory language which excludes sites from the Early Detection Incentive Program for failure to meet the monitoring and retrofit requirements of Chapter 17-61, Florida Administrative Code, and the importance of having an adequate monitoring system to detect leaks, even at a site which is already contaminated, it was reasonable for the Department to deny eligibility to Flash Foods based on Flash Foods failure to install a monitoring system within the schedule in Chapter 17-61, Florida Administrative Code.

    
    

39. The facts in this case support the Department's construction of Chapter 376, Florida Statutes so as to exclude Flash Foods' site from the Early Detection Incentive Program. If the Department's construction of the statute is within the permissible range of interpretation, then that construction must be upheld, even if a different construction is permissible or even preferable. In

Department of Environmental Regulation v. Goldring, 477 So. 2d 532, 534, (Fla. 1985), the Florida Supreme Court stated that "[c]ourts should accord great deference to administrative interpretations of statutes which the administrative agency is required to enforce." More recently, the Florida Supreme Court held that:

Administrative agencies are necessarily called upon to interpret statutes in order to determine the reach of their jurisdiction.

Moreover, the construction of a statute by the agency charged with its administration is entitled to great weight and will not be overturned unless clearly erroneous.

Laborers' International Union of North America, Local 478 v. Burroughs,

So. 2d , 14 FLW 181, 182 (Fla. April 6, 1989). See also Natelson v. Department of Insurance, 454 So. 2d 31, 32 (Fla. 1st DCA 1984); see also Department of Insurance v. Southeast Volusia Hospital District, 438 So. 2d 815 (Fla. 1983); Pan American World Airways v. Florida Public Service Commission, 427 So. 2d 716 (Fla. 1983); In the Matter of Gary L. Waldron,

So.2d 14 FLW 792 (Fla. 1st DCA, March 29, 1989). The Department established that Petitioner was excluded from participation in the EDI Program because it failed to meet one of the statutory requirements of section 376.3071, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Petitioner, Flash Foods, Inc. be determined to be ineligible for the Early Detection Incentive Program pursuant to Section 376.3071(9), Florida Statutes.

DONE and ENTERED this 7th day of June, 1989 in Tallahassee, Florida.

DIANNE CLEAVINGER

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 7th day of June, 1989.

APPENDIX

The facts contained in paragraphs 1, 2, 5,B and 6 of Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraphs 3, 4, and 7 of Proposed Findings of Fact are subordinate.

The facts contained in paragraphs 1-27 of Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraph 28 are cumulative and subordinate.

COPIES FURNISHED:

James C. Jones, III, Esquire Post Office Box 2149 Waycross, Georgia 31502

D. Gary Early, Esquire State of Florida

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 88-001391

Orders for Case No: 88-001391