STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAMILTON COUNTY BOARD OF )

COUNTY COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2682

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on November 9, 1992. The Division of Administrative Hearings received the hearing transcript on December 3, 1992. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: John H. McCormick, Esquire

Post Office Drawer O Jasper, Florida 32052

For Respondent: Brigette A. Ffolkes, Esquire

2600 Blair Stone Road Tallahassee, Florida 32399-2400

ISSUE

Whether respondent should grant petitioner's application for eligibility for restoration coverage under the abandoned tank restoration program?

PRELIMINARY STATEMENT

By form application dated October 28, 1991, petitioner sought eligibility for restoration coverage for Facility No. 248518525 under the abandoned tank restoration program administered by the Department of Environmental Regulation (DER).

By letter dated March 31, 1992, DER gave notice of its intent to deny petitioner's application on grounds that

[e]ligibility in the Abandoned Tank Restoration Program is restricted to those sites that are no longer in business for storing petroleum products for consumption, use or sale and have not done so since March

1, 1990 pursuant to Section 17-769.800(3)(a), Florida Administrative Code.

Petitioner filed a petition for administrative hearing, which DER referred to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3, Florida Statutes (1992 Supp.)

FINDINGS OF FACT

1. For decades the Hamilton County Road Department has stored refined petroleum products (gasoline and diesel fuel) in underground tanks at its maintenance yard off Highway 249. Testimony of Cox; Petitioner's Exhibit No. 8. On September 25, 1991, the three oldest storage tanks were dug up and removed from the yard.

   
   

2. Remaining nearby were the four 5,000-plus-gallon underground tanks the County installed in the early 1980s, see Petitioner's Exhibit No. 7, which are still in use (or were at the time of the hearing.) After the newer tanks were put in service, Hamilton County never refilled any of the three older tanks.

   
   

3. "Approximately three to four feet" (T.22) separate the pit which yielded the three older tanks from the "remaining [newer underground storage tank] area," id., to the northwest. In dealings with DER, Hamilton County has used the same "facility number" for both sets of tanks.

   
   

4. Immediately after they removed the last of the old tanks, Chris Brockmeier took soil samples. Every sample he took southerly of the tanks left in the ground he found (with the use of a flame ionized detector) to contain in excess of a thousand parts of volatile hydrocarbons per million, undoubtedly a remnant of gasoline or diesel fuel.

   
   

5. The soil samples he took from the area on the other side of the remaining tanks contained from 460 to 700 parts of volatile hydrocarbons per million. The contamination may well have come from the old, not the new, storage tanks, but the evidence did not reliably establish its source, Mr. Brockmeier's opinion notwithstanding.

   
   

   CONCLUSIONS OF LAW

   
   

6. Since DER referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

7. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,

   347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). An applicant for a grant of financial assistance has a similar burden. Joshua Water Control District v. Department of Natural Resources, 15 Fla. Supp. 2d 152 (DOAH 1985).

8. DER contends that Hamilton County does not qualify for financial assistance because the County still maintains storage tanks at the same "site" from which it removed the tanks it no longer used, citing Rule 17-769.800(3), Florida Administrative Code, which provides:

   
   

   1. Eligibility for the Abandoned Tank Restoration Program.

      1. To be eligible for the Abandoned Tank Restoration Program, the current owner or operator of a property which contains or contained an abandoned storage system must:

         . . .

         3. Have not stored petroleum products for consumption, use or sale at that site after March 1, 1990;

         
         

         Rule 17-769.800(3), Florida Administrative Code. The County concedes that it has stored petroleum products for use at the same "facility" since March 1, 1990, but argues that its facility had two distinct "sites," the one now in use and another three or four feet away that it has abandoned. The statute does not define site, but does define facility:

         
         

         (5) "Facility" means a nonresidential location containing any underground stationary tank or tanks which contain hazardous substances or pollutants and have individual storage capacities greater than 110 gallons, or any aboveground stationary tank or tanks which contain pollutants which are liquids at standard ambient temperature and pressure and have individual storage capacities greater than 550 gallons.

         
         

         Section 376.301, Florida Statutes (1991). Also of possible significance is Rule 17-769.800(2), Florida Administrative Code, which provides:

         
         

         1. Definitions. The following words and phrases as used in this section shall have the following meanings:

            1. "Abandoned Petroleum Storage System" means any petroleum storage system that no longer stores petroleum products for consumption, use or sale, and that is not intended to be returned to service.

         
         

         Whether any of the piping and pumps used in connection with the new tanks were ever used with the older tanks was not clear from the evidence.

         
         

9. In any case, nothing in the statutes or rules suggests any intention to differentiate between the terms "facility," "location" and "site." All three terms are used interchangeably. DER's abandoned tank restoration program limits the availability of financial assistance to owners of property contaminated by leakage from underground tanks (or related spillage) to situations where ongoing activities do not pose the threat that clean up efforts will prove premature. Even on the unproven assumption that the contamination all leaked from the older tanks on or before March 1, 1990, the County has not shown eligibility.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That DER deny petitioner's application for restoration coverage for Facility No. 248518525 under the abandoned tank restoration program.

DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 14th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2682

Petitioner's proposed findings of fact Nos. 1-5 and 7-15 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 6, the proof did not eliminate the possibility that leakage or spillage since the old tanks' removal also contributed.

Petitioner's proposed findings of fact Nos. 16 and 17 are treated in the section on conclusions of law.

Respondent's proposed findings of fact Nos. 2, 3, 4 and 6-13 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 1, the route number was different.

With respect to respondent's proposed finding of fact No. 5, Petitioner's Exhibit No. 7 and Cox's testimony suggest they were last used between 1981 and 1986.

COPIES FURNISHED:

John H. McCormick, Esquire Post Office Drawer O Jasper, Florida 32052

Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. 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 agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-002682

Orders for Case No: 92-002682