STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
REALADYNE, INC., a Florida )
Corporation, )
)
Petitioner, )
)
vs. ) CASE NOS. 92-6066
) 92-6067
STATE OF FLORIDA, DEPARTMENT OF ) 92-6068
ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on May 13, 1994, in Tampa, Florida.
APPEARANCES
For Petitioner: Russell S. Thomas, Esquire
Williams, Reed, Weinstein, Schifino & Mangione, P.A.
One Tampa City Center, Suite 2600 Post Office Box 380
Tampa, Florida 33601
For Respondent: W. Douglas Beason, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
Whether Petitioner is eligible for Florida Petroleum Liability Insurance and Restoration Program (FPLIRP) coverage for petroleum discharges on March 10, 1992 and June 22, 1992.
PRELIMINARY STATEMENT
On September 3, 1992, Respondent, Department of Environmental Protection (Respondent or the Department) advised Petitioner that its application for eligibility for restoration coverage under the FPLIRP was denied because the restoration program applied only to discharges discovered by the owner or operator after the date of coverage under the insurance policy or, alternatively, after the Department's receipt of documentation required under Section 17-769.500, Florida Administrative Code.
Petitioner was also advised of its right to contest that order of ineligibility by requesting a formal hearing which was done.
On or about October 12, 1992, the matter was transferred to the Division and on December 11, 1992, the matter was initially set for hearing for January 25, 1993, but was continued at Respondent's request. The matter was continued on five occasions due to scheduling conflicts. On April 8, 1994, the matter was reset for hearing for May 13, 1994, and was heard as scheduled.
At the commencement of the final hearing, the parties filed an amended joint prehearing stipulation which contained, inter alia, a statement of stipulated facts. The parties also stipulated to the entry of thirty exhibits which were received in evidence at the hearing. The parties stipulated that Petitioner is not entitled to restoration coverage for the July 30, 1990 petroleum discharge. As a result, that discharge is not at issue in this proceeding.
At the hearing, Petitioner presented the testimony of Mary J. Martin, the president of Realadyne; Farid Moghadam and John Stout, engineers with the Department's Bureau of Waste Cleanup; Mary McAulliffe, who was received as an expert in the field of underground storage tank regulations and underground storage tank compliance matters; and Ernest Roggelin, an inspector with the Pinellas County Public Health Unit. The Department also recalled Farid Moghadam as a witness in its case.
On June 20, 1994, the parties filed a joint stipulation to extend time to submit proposed recommended orders until Friday, June 24, 1994. The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix. Respondent's proposed findings of fact are substantially adopted.
Based on my observation of the witnesses, their demeanor while testifying and the entire record compiled herein including the parties stipulations, I hereby make the following relevant:
FINDINGS OF FACT
Realadyne is a Florida corporation.
The current president of Realadyne is Mary J. Martin.
Realadyne was the owner and operator of a facility located at 4846 4th Street North, St. Petersburg, Florida (Save-A-Step Food Store #7) (the "Facility").
The Facility was registered with the Department and was assigned DER Facility No. 52-8624627.
The underground petroleum storage system located at the Facility included five underground petroleum storage tanks - four 4,000 gallon tanks and one 10,000 gallon tank.
The date(s) that the tanks were installed at the Facility is unknown.
At all times material, the Department has delegated to Pinellas County the authority to perform certain types of inspections with regard to underground petroleum storage systems. These inspections are performed by the Pinellas County Public Health Unit ("PCPHU").
Realadyne filed three (3) individual applications for eligibility for restoration coverage under FPLIRP for the Facility for petroleum discharges reported July 30, 1990, March 10, 1992, and June 22, 1992. The applications were all denied by the Department, for reasons articulated by the Department in individual responses to each application all dated September 3, 1993.
Realadyne applied for FPLIRP coverage on or about July 25, 1991. Realadyne obtained FPLIRP coverage for the Facility for the period of October 7, 1991 to October 7, 1992.
The July 30, 1990 discharge is not eligible for restoration coverage since it occurred outside the FPLIRP coverage period (prior to October 7, 1991).
The parties have reviewed the grounds for FPLIRP restoration coverage ineligibility. The parties stipulate and agree that the sole remaining basis for a determination of ineligibility is the following:
Failure to upgrade petroleum storage system in accordance to the schedule required by Section 17-761.510(6), F.A.C.
The parties also stipulate and agree that if either discharge from the Facility shall be determined eligible for FPLIRP restoration coverage, then the Facility shall be eligible for reimbursement under the restoration program.
Under the aforementioned regulations, the petroleum storage system at the Facility was required to be retrofitted on or before December 31, 1989.
On July 13, 1990, a PCPHU Inspector (Arthur Caden) performed a compliance inspection at the Facility. A Pollutant Storage Tank System Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin.
On July 19, 1990, Ms. Martin had a phone conversation with Moghadam regarding the Facility. As noted, Moghadam's job duties included review of alternative procedure requests under Rule 17-761.850, Florida Administrative Code.
As a result of the phone conversation, Martin sent correspondence to John Svec, an employee with the Department's Bureau of Waste Cleanup.
The referenced letter requested the Department to grant an "alternate technical proceedings to be able to apply for FDER/FPLIRP" (the "Proceeding").
The July 19, 1990 letter signed by Martin provided in part:
The above facility has not been in compliance for over a year, due to company not being able to afford or support a loan for the removal of and replacement of the tanks.
By correspondence dated July 25, 1990, the PCPHU directed Petitioner to file a Discharge Notification Form (DNF) concerning a potential discharge of petroleum product.
On August 1, 1990, Ms. Martin met with the PCPHU inspector concerning the results of the compliance inspection conducted on July 13, 1990. At that time, PCPHU informed Ms. Martin that "she had to . . . line/replace the old tanks which are unknown as to date of installation."
On August 1, 1990, Petitioner filed a DNF with the PCHPU concerning a potential discharge of petroleum product.
On or about September 12, 1990, the PCHPU sent Petitioner a Warning Letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks.
On September 25, 1990, Petitioner provided PCPHU with a copy of a contract proposal for removal and replacement of the underground storage tanks. The contract proposal was from Adams Tank and Lift dated September 4, 1990.
Attached to the proposal was a "SNAP-A-GRAM" signed by Ms. Martin which provides in part:
Regarding the above facility please be advised that I should be able to give you a date as to when the work will be started the first week of October.
I am enclosing a copy of a proposal from Adams Tank and Lift of work to be done at this location.
The work contemplated under the proposal from Adams Tank was never performed.
On June 5, 1991, a PCPHU Inspector (Joyce Welch) performed a compliance inspection at the facility. A Pollutant Storage Tank Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin.
On or about July 8, 1991, the PCPHU sent Petitioner a Warning Notice concerning the DNF that Petitioner filed on July 30, 1990.
On July 8, 1991, PCPHU sent Petitioner another warning letter concerning the DNF which Petitioner filed on August 1, 1990.
The warning letter provided in part:
On August 1, 1990, this agency received a discharge notification form with a discovery date of June 1990. The discovery was based upon the manual sampling of a monitor well. A routine compliance inspection on July 13, 1990 verified the presence of free product in well number 3.
Said free products present in the groundwater confirms your site has excessively contaminated as defined in . . . Chapter 17-770. You are instructed to initiate a contamination assessment report (CAR) in accordance with . . . Chapter
17-770 within thirty days of receipt of this letter to determine the extent of contamination.
On or about July 19, 1991, Ms. Martin had a phone conversation with Mr. Moghadam.
The July 19 letter, which was received by the Department on or around July 22, 1991, requested that the Department grant "alternate technical proceedings to be able to apply for FDER/FPLIRP." (the "Proceeding")
Petitioner requested the Proceeding in an effort to bring the Facility into compliance with applicable underground storage tank regulations.
After filing the Proceeding, Petitioner applied for FPLIRP coverage on July 25, 1991.
The Department never responded, in writing, to the request for the "Proceeding".
On February 11, 1992, PCPHU performed another compliance inspection at the facility. On February 17, 1992, PCPHU sent Petitioner a Final Non- Compliance letter concerning the results of the inspection conducted on February 11, 1992.
The above-referenced PCPHU noncompliance letter provides in part: Storage tanks do not meet storage tank standards.
Please upgrade tanks to meet applicable storage tank standards.
On March 10, 1992, Petitioner filed a second DNF for the Facility, based upon evidence of a discharge discovered while inspecting and repairing a portion of the storage tank system.
On June 22, 1992, Petitioner began closure activities with regard to removal of the underground petroleum system. On that date, Petitioner filed a third DNF based on evidence of a discharge discovered during its closure activities.
On June 23, 1992, Petitioner concluded closure activities with regard to removal of the underground petroleum storage system.
Petitioner was not required to obtain the Department's approval of an alternate procedure as a condition precedent to the removal of the underground storage tanks. Removal of the tanks would have brought Petitioner into compliance with the requirements of Rule 17-761, Florida Administrative Code.
On or about September 12, 1992, after the tanks were removed, PCPHU sent Petitioner a warning letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks.
The warning letter provided in part:
. . . Chapter 17-61.061(1)(b)2, requires all tanks to be lined or replaced before certain dates. In the case of your facility, since the installation date is unknown, you are required to have the tanks relined or replaced by December 31, 1989. You were previously advised of this violation during an inspection by one of our staff, Arthur L. Caden, on July 13, 1990, and by letter dated July 25, 1990.
You requested and obtained a meeting with our staff on August 1, 1990 at which time you were directed to submit a discharge notification form (DNF), and to advise this office whether you would reline or replace the tanks. The DNF had been filed, but staff has not been formally advised of your decision regarding the tanks.
Therefore, since you have not responded formally to this office, we have no alternative than to
advise you that we will proceed with an appropriate enforcement action if you ignore this letter of warning.
Please be advised that the subject tanks shall be relined or replaced no later than November 30, 1992.
Petitioner's request for the "proceeding" seeks an after-the-fact "exception" to the retrofit requirements of Rule 17-761.510, Florida Administrative Code. The basis for Petitioner's request for an exception is "financial inability".
When Petitioner's request for a "proceeding" was filed, the Department had a policy of not proceeding with the review of any request for an alternative technical procedure if the facility submitting the request was then out of compliance with the retrofitting requirements of Chapter 17-761, Florida Administrative Code.
The request for a "proceeding" was not a viable procedure to extend the December 31, 1989 retrofitting deadline even assuming the request otherwise complied with Rule 17-761.850, Florida Administrative Code. Likewise, the Department lacked authority to extend the December 1989 retrofitting deadline.
The Department received Petitioner's application for FLIRP coverage on July 29, 1991, approximately three days after the Department received Petitioner's request for the "Proceeding". 1/
On July 26, 1991, Ms. Martin executed a FLIRP affidavit on behalf of Petitioner as part of its application for coverage under FLIRP.
The introductory portion of the FLIRP affidavit provides in part:
In order to be eligible for the. . . restoration program, a facility owner or operator must sign this affidavit to affirm that the facility is in compliance with the Department's storage tank
rules. . . and Chapter 376, Florida Statutes, and that he/she has read and is familiar with these rules and statutes.
The attestation portion of Petitioner's FLIRP affidavit, as executed by Ms. Martin, provides in part:
The petroleum storage systems, as defined under Chapter 376.301, Florida Statutes, located at the facilities listed on the application, are now in compliance and shall maintain compliance
with the applicable provisions of Chapter 376.303, Florida Statutes, and Florida Administrative Code Rule 17-761. . . including, but not limited to, those provisions:
* * *
(b) The installation, maintenance and repair of
new and existing underground petroleum storage system;
* * *
(e) Notification of sale, abandonment, replacement or upgrading of petroleum storage systems.
The attestation portion of Petitioner's FLIRP affidavit, as executed by Martin, also provides in part:
I, Realadyne, Inc. have read Chapter 376, Florida Statutes, and Florida Administrative Rule 17-761
and the facility or facilities listed on the attached application meet the requirements for the participa- tion in the Florida Petroleum liability insurance
and restoration program as described in Chapter 376.3072, Florida Statutes.
In executing the affidavit, Ms. Martin knew, or should have known, that the facility was not in compliance with the Department's applicable storage tank regulations.
On December 4, 1991, Petitioner contacted the Department, via telecommunique, concerning its request for the "proceeding" to apply for FDER/FPLIPA.
At that time, the Department informed Petitioner that the Department would not proceed with the review of the request of an alternate technical proceeding because the facility was already out of compliance with applicable retrofitting requirements. On that day, Petitioner informed the Department that it could not afford to have the underground storage tanks removed. At that time, the Department requested that Petitioner take the tank out of service, pending a decision by it as to whether the tanks would be removed and/or replaced. Also, the Department requested that Petitioner provide it with an updated storage tanks registration form reflecting that the tanks had been taken from service. Petitioner informed the Department that the underground storage tanks would be taken out of service, pending its decision whether it would remove or replace the tanks. Petitioner also agreed, at that time, to provide the Department with an updated storage tank registration form reflecting that the tanks had, in fact, been removed or taken out of service. The Department requested that the tanks be taken out of service to minimize the potential for a discharge of a petroleum product. If Petitioner had taken the underground tanks
out of service as requested (and as agreed), the facility would have been in compliance with the requirements of Rule 17-761.510, Florida Administrative Code.
On September 11, 1991, PCPHU sent Petitioner another warning letter concerning its failure to comply with the retrofitting requirement.
The above-referenced warning notice provides in part:
On July 13, 1990, agency personnel inspected your storage tank facility for compliance with Florida's tank regulations and violations were noted. Then on July 25, 1990, this office sent you a letter requesting that you provide the Division with a written explanation of your failure to comply with F.A.C. Chapter 17-61, and to proceed with certain steps. This agency has received no response from your company.
On September 25, 1991, the Department contacted Petitioner, by phone, concerning the request for an alternate technical proceeding.
During the course of the conversation, Petitioner indicated that it had scheduled a meeting with PCPHU concerning the removal and/or replacement of the tanks.
On September 25, 1991, the Department requested that Petitioner provide it with an updated registration form reflecting that the tanks had been taken out of service. On that date, Petitioner agreed to provide the registration form reflecting that the tanks had been taken out of service.
On September 30, 1991, the Department again contacted Petitioner concerning its request for an alternate proceeding. At that time, the Department again requested the updated registration form reflecting the tanks had been taken out of service. On that date, Petitioner telecopied the Department a letter and a copy of a contract proposal from UST Engineering for the relining of the underground storage tanks. The contract was dated June 28, 1991, and was signed by Martin on behalf of Petitioner. Petitioner's letter dated September 30, 1991, to the Department was also signed by Martin.
The above-referenced letter provides in part:
"UST has assured me they will be able to complete the work before the first of the year."
The document submitted by Petitioner to the Department on September 30, 1991, included a copy of a check issued by Petitioner made payable to UST Corrosion Engineering. The work contemplated under the UST contract proposal was never performed.
Petitioner did not inform the Department of its decision not to have the work performed.
A release of petroleum product occurred prior to removal of the petroleum storage system.
Petitioner failed to comply with the retrofitting requirements set forth under Rule 17-761.510, Florida Administrative Code.
Petitioner continued to sell petroleum products until mid June, 1992.
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 parties were duly noticed pursuant to Chapter 120, Florida Statutes.
The authority of the Respondent is derived from Chapter 376, Florida Statutes and pertinent rules and regulations promulgated thereunder.
Petitioner is not eligible for restoration coverage with regard to the June 1, 1990 discharge because the discharge occurred outside the FPLIRP coverage period.
The sole remaining basis for the Department's determination of ineligibility is the following:
Failure to upgrade petroleum storage systems in accordance to the schedule required by
Section 17-761.510, Florida Administrative Code.
The petroleum storage system at the facility was required to be retrofitted on or before December 31, 1989. Rule 17-61.560, Florida Administrative Code, provides in part:
Performance Standards for Existing Vehicular Fuel Petroleum Storage Tank Systems.
No later than December 31 of the appropriate year shown in Table I below, all existing vehicular fuel petroleum storage tank systems. . . which are not constructed with secondary containment and of materials approved for new storage system
construction shall be replaced with a storage tank system . . meeting the requirements for new storage tank systems under Rule 17-761.500, Florida Administrative Code, or permanently closed in accordance with Rule 17-761.800, Florida Admini- strative Code.
Table I required storage tanks installed before 1970 to be retrofitted for corrosion protection on or before December 31, 1989. The installation date for Petitioner's storage tanks is unknown. Under Rule 17-61.060(2)(c)5, Florida Administrative Code, if the installation date is unknown, then retrofitting is to be accomplished by the earliest date shown in Table I. The applicable closure date is December 31, 1989.
On December 10, 1990, the provisions of Chapter 17-761, Florida Administrative Code, superseded the provisions of Chapter 17-761, Florida Administrative Code. See Rule 17-761.300(3), Florida Administrative Code.
However, Rule 17-61.060(2)(c)2, Florida Administrative Code, reflects the same retrofitting requirements that are set forth in Rule 17-761.510, Florida Administrative Code.
On or before December 31, 1989, Petitioner was required to have complied with the performance standards for corrosion protection set forth in Rule 17-761.510, Florida Administrative Code. There existed several means by which Petitioner could have complied with the requirements. Petitioner could have retrofitted the existing tanks by either lining the tanks, or installing cathodic protection, or it could have removed the tanks out of service, pending a decision on a definitive course of action.
Subsection 376.3072(3), Florida Statutes (1991), is applicable to Petitioner's claim for restoration coverage. That statute provides in pertinent part:
376.3072 Florida Petroleum Liability Insurance and Restoration Program.
* * * (3)(a) ELIGIBILITY FOR PARTICIPATION.
. . .In order to participate in the insurance and restoration program, an owner or operator
must file an affidavit with the Department, which affidavit states that the owner or operator has read and is familiar with this chapter and the rules relating to petroleum storage systems . . .
adopted pursuant to s. 376.303 and that the facility is in compliance with this chapter and applicable rules adopted to s. 376.303.
(b) The failure of any owner or operator of a storage system containing petroleum products to maintain compliance with this chapter and rules relating to stationary tanks adopted pursuant to
s. 376.303 at any location will result in the cancellation of . . . eligibility for the restor- ation program for that location.
As a condition precedent for eligibility to participate in the restoration program, an owner/operator, as Petitioner, is required to execute an affidavit demonstrating that (a) the owner has read and is familiar with the Department's rules relating to petroleum storage systems, and (b) the facility is in compliance with the Department's applicable rules. Not only must an owner/operator comply with the rules, she (Petitioner) must know the rules and cannot rely upon others. See, Hughes Supply, Inc. v. Department of Environmental Regulation, 622 So.2nd 1056, 1060 (Fla. 5th DCA 1993).
Petitioner made a business decision in electing not to properly retrofit the storage tanks. Although Petitioner could have achieved compliance by taking the tanks "out of service" as defined in Rule 17-761.200(26), Florida Administrative Code, Petitioner continued to dispense petroleum products. Petitioner thereby violated applicable retrofit requirements and failed to maintain compliance as required by Section 376.3072, Florida Statutes, and Rule 17-769.700(14), Florida Administrative Code.
Petitioner's claim that as of March 10, 1992, its facility was brought into compliance when it filed it's application for the proceeding is rejected because the PCPHU had directed Petitioner to initiate a contamination assessment
report based upon evidence of ground water contamination. Also, Petitioner's request for a proceeding was filed approximately 19 months after the December 1989 deadline set forth in Rule 17-761.510, Florida Administrative Code.
Petitioner's effort to obtain an after the fact extension could not be approved under the circumstances here since it did not maintain the performance standards under Chapter 17-761, Florida Administrative Code. While a facility owner, as Petitioner, can propose an alternative procedure, there are no provisions under that rule which allow a facility to obtain an after the fact extension of the retrofit deadline. Likewise, the Department does not interpret Rule 17-761.850, Florida Administrative Code, as authorizing it to grant after the fact exemptions to a retrofit deadline. Moreover, an alternate procedure can only be proposed while the facility is in compliance with Chapter 17-761, Florida Administrative Code. Since the facility was not in compliance with the retrofit requirements, Respondent's next step was to take the tanks out of service pending disposition of the alternate procedure request. Petitioner did not follow this procedure.
Petitioner's request for the proceeding is not a request for an approval for an alternate procedure as set forth in Rule 17-761.850(2), Florida Administrative Code. The procedure provides in pertinent part:
Approval of Alternate Procedures.
The request shall set forth, at a minimum, the following information:
The facility for which an exception is sought;
The specific provision of Rule 17-761, Florida Administrative Code, for which an exception is sought;
The basis for the exception;
The alternate procedure or requirement for which approval is sought and a demonstration that the alternate procedure or requirement provides a substantially equivalent degree of protection for the lands, surface waters, or ground waters of the state as the established requirement; and
A demonstration that the alternate procedure or requirement is at least as effective as the established procedure or requirement.
Petitioner's request for a proceeding did not comply with the above- referenced rule criteria. Although Petitioner attempted to rely upon its request to remove the storage system from service as a demonstration of "substantially equivalent degree of protection", it could have removed the tanks from service without Respondent's approval. By so doing, it would have brought the facility into compliance with Chapter 17-761, Florida Administrative Code. Petitioner was not required to obtain the Department's approval of the alternate procedure request as a condition precedent to the removal of the storage tanks. Likewise, Petitioner was not required to obtain the Department's approval of an alternate procedure request for the installation of replacement tanks. Petitioner's claim for entitlement to a default approval of its request for a proceeding cannot be granted under the circumstances herein since the work proposed in the request was never performed.
The two discharges at issue in this proceeding involve DNF's filed by Petitioner on March 10 and June 22, 1992. The provisions of Subsection 376.3072(2)(b)3, Florida Statutes (Supp. 1992) are not applicable because those amendments did not become effective until July 1, 1992. See Chapter 92-30 Section 28 at 231, Laws of Florida.
Petitioner's facility was not eligible for restoration insurance coverage since it was out of compliance when the application was filed and Petitioner was notified of its failure to comply as evidenced by the PCPHU's September 12, 1990 warning letter concerning Petitioner's failure to properly retrofit the storage tanks. Petitioner did not take corrective action as required. Moreover, Petitioner continued to operate out of compliance for approximately 2 1/2 years although its president, Martin, filed an affidavit under oath stating that the facility was in compliance. Petitioner knew, or should have known, that it was, in fact, out of compliance. For all these reasons, Petitioner failed to retrofit its facility as was required in compliance with the Department's applicable rules and is therefore ineligible for FPLIRP coverage for the March 10 and June 22, 1992 discharges.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
The Department of Environmental Protection enter a final order denying Petitioner's application for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program.
RECOMMENDED in Tallahassee, Leon County, Florida, this 7th day of December, 1994.
JAMES E. BRADWELL
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 December, 1994.
ENDNOTE
1/ Paragraphs 48 through 62 relate to Petitioner's actions subsequent to the "Proceeding" request and in some instances restate earlier findings.
APPENDIX
Rulings on Petitioner's Proposed Findings of Fact
Paragraphs 32-35 rejected, contrary to the greater weight of evidence, paragraph 50 recommended order.
Paragraph 36 rejected, irrelevant.
Paragraph 39, adopted as modified, paragraph 34 recommended order.
Paragraphs 40 and 41 rejected, unnecessary.
Paragraph 47 rejected, unnecessary.
Paragraphs 48-53 rejected, contrary to the greater weight of evidence, paragraph 45 recommended order.
Paragraph 57 rejected, not probative.
Paragraph 58 rejected, contrary to the greater weight of evidence.
COPIES FURNISHED:
W. Douglas Beason, Esquire Department of Environmental
Protection
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Russell S. Thomas, Esquire Williams, Reed, Weinstein, Schifino & Mangione, P.A.
One Tampa City Center, Suite 2600 Post Office Box 380
Tampa, Florida 33601
Kenneth Plante General Counsel
Department of Environmental Protection
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental
Protection
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
REALADYNE, INC.,
Petitioner,
vs. | OGC | CASE | NO. | 92-1783 |
92-1784 | ||||
DEPARTMENT OF ENVIRONMENTAL | 92-1785 | |||
PROTECTION, | DOAH | CASE | NO. | 92-6066 |
92-6067 | ||||
Respondent. | 92-6068 |
/
FINAL ORDER
On December 7, 1994, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH") submitted his Recommended Order to the Department of Environmental Protection, formerly known as Department of Environmental Regulation (hereafter "Department"), and served a copy upon the Petitioner, Realadyne, Inc., (hereafter "Realadyne"). A copy of the Recommended Order is attached as Exhibit A.
On December 21, 1994, Realadyne filed a Motion for Extension of Time to File Exceptions to Recommended Order. In this motion, Realadyne requested an extension until January 11, 1995, to file its exceptions. Realadyne stipulated in the motion to waive the statutory deadline for the entry of final orders and agreed that the Secretary of the Department would have until March 3, 1995, to enter a Final Order in this proceeding. No objection to the requested extension was filed on behalf of the Department. An order was entered on December 29, 1994, granting Realadyne's requested extension and establishing March 3, 1995, as the deadline for the entry of a Final Order. On January 11, 1995, Realadyne filed its exceptions to the Recommended Order. The Department filed its responses to Realadyne's exceptions on January 27, 1995. The matter is now before me as Secretary of the Department for final agency action.
BACKGROUND
The following factual and procedural matters are undisputed in this case. Realadyne is a Florida Corporation which owned and operated a petroleum storage facility located at 4846 4th Street North, St. Petersburg, Florida (hereafter "facility"). The facility, consisting of four 4,000 gallon underground petroleum tanks and one 10,000 gallon above ground petroleum tank, was registered with the Department and assigned facility number 52-8624627.
On July 13, 1990, an inspector from the Pinellas County Public Health Unit 1/ ("PCPHU") performed a compliance inspection at the facility and provided a copy of his report indicating a petroleum discharge at the site to Realadyne's President, Mary Martin. Pursuant to directions from PCPHU, Realadyne filed a
Discharge Notification Form ("DNF") in August of 1990. On or about September 12, 1990, PCPHU sent a warning letter to Realadyne again advising it of the inspector's finding of a violation at the facility of the retrofitting requirements of former Chapter 17-61, Florida Administrative Code. 2/ This letter directed that the petroleum storage tanks be lined or replaced by November 30, 1990, and advised that appropriate enforcement action would taken if Realadyne ignored the warning letter. On September 25, 1990, Realadyne provided PCPHU with a copy of a contract proposal from Adams Tank and Lift for removal and replacement of the underground storage tanks at the facility. The work contemplated under this contract proposal was never performed.
On June 5, 1991, another PCPHU compliance inspection was performed at the facility and a copy of the inspection report was provided to Ms. Martin. On or about July 8, 1991, PCPHU sent Realadyne another warning letter concerning the DNF filed by Realadyne in August of 1990. This second warning letter reiterated the inspector's finding of "free [petroleum] products present in the groundwater" at the facility and advised that this "confirms your site has excessively contaminated." Realadyne was instructed in the letter to initiate a contamination assessment report within 30 days to determine the extent of the contamination. On February 11, 1992, PCPHU conducted another compliance inspection of the facility and sent Realadyne a "Final Non-Compliance" letter concerning the results of this inspection. This letter dated February 17, 1992, advised Realadyne that its storage tanks "do not meet storage tank standards" and requested that the tanks be upgraded "to meet applicable storage tank standards." Realadyne subsequently filed a second DNF with PCPHU as the result of a discharge discovered on March 10, 1992.
Meanwhile, Realadyne had also contacted the Department concerning the situation at the facility. On or about July 19, 1991, Mary Martin had a telephone conversation with Farid Moghadam, an engineer with the Department's Division of Waste Management. At that time, Mr. Moghadam's duties included the review of alternate procedure requests under Rule 17-761.850, Florida Administrative Code. /3 As a result of this telephone conversation, Realadyne sent a letter to the Department the same day requesting that the Department grant "alternate technical proceedings to be able to apply for FDER/FPLIPA" [sic] ("alternate proceedings"). The Department received this letter on or about July 22, 1991, but did not respond in writing to Realadyne's request for alternate proceedings.
Realadyne also applied to the Department for coverage for the facility under the Florida Petroleum Liability Insurance and Restoration Program (hereafter "FPLIRP"). FPLIRP is administered by the Department pursuant to the provisions of Section 376.3072, Florida Statutes, and the rules implementing these statutory provisions. On July 26, 1991, Mary Martin signed a FPLIRP application affidavit on behalf of Realadyne. In the affidavit, Ms. Martin attested to the fact that the facility was then in compliance with the applicable statutes and rules, including those relating to the maintenance, repair, replacement or upgrading of petroleum storage systems. Realadyne obtained FPLIRP coverage for the facility for the period from October 7, 1991, to October 7, 1992.
On September 25, 1991, the Department contacted Realadyne by phone concerning the request for alternate proceedings and was informed that Realadyne had scheduled a meeting with PCPHU to discuss the removal and/or replacement of the petroleum tanks at the facility. At that time, Realadyne agreed to provide the Department with an updated registration form reflecting that the tanks had been taken out of service. On September 30, 1991, the Department again
contacted Realadyne concerning the request for alternate proceedings and inquired about the tanks being taken out of service. On that date, Realadyne telecopied to the Department a copy of a contract proposal from UST Corrosion Engineering to reline the underground storage tanks and represented that the work would be completed "before the first of the year." The work contemplated under this contract proposal was ultimately never performed. Realadyne, however, never informed the Department of its decision not to have the underground storage tanks relined as represented.
Notwithstanding the above, Realadyne continued to sell petroleum products at the facility until mid-June of 1992. On June 23, 1992, closure activities were concluded with regard to removal of the underground petroleum storage systems at the facility. Realadyne filed a third DNF as the result of evidence of another petroleum discharge discovered during the closure activities.
Realadyne ultimately filed three separate applications for reimbursement under FPLIRP for restoration costs of the petroleum discharges at the facility reported on July 30, 1990, March 10, 1992, and June 22, 1992. The applications were all denied by the Department for reasons articulated in individual written responses dated September 3, 1993. (Exs. 26 and 27) Realadyne then filed a timely petition challenging the Department's determinations of reimbursement ineligibility under FPLIRP and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.
The matter was subsequently transferred to DOAH for formal administrative proceedings. A final hearing was held in Tampa, Florida, on May 13, 1994, before DOAH Hearing Officer James E. Bradwell (hereafter "Hearing Officer"). At the commencement of the final hearing, the parties filed an Amended Joint Pre- hearing Stipulation ("Stipulation"). The Stipulation contained an agreement that the July 30, 1990, petroleum discharge at the facility was not eligible for reimbursement under FPLIRP, since the discharge occurred prior to the commencement of the October 7, 1991, FPLIRP coverage period. The parties further stipulated that the sole basis for a determination of ineligibility under FPLIRP for restoration costs of the remaining two petroleum discharges was Realadyne's alleged "failure to upgrade petroleum storage system in accordance to the schedule required by Section 17-761.510(6), F.A.C." Paragraph 12 of the Stipulation also provided that "under the aforementioned regulations, the petroleum storage system at the facility was required to be retrofitted on or before December 31, 1989."
After the conclusion of the final hearing, proposed recommended orders were submitted by both parties. The Hearing Officer subsequently entered his Recommended Order ("RO") wherein he found that Realadyne failed to comply with the retrofitting requirements of Rule 17-761.510, Florida Administrative Code. (RO para. 62) The Hearing Officer concluded that Realadyne was ineligible for reimbursement for restoration costs of the two remaining reported discharges. (RO para. 81) The stated basis for this critical conclusion was that "the facility was out of compliance [with FPLIRP requirements] when the application was filed" and Realadyne "did not take any corrective action as required." (RO para. 81) The Hearing Officer ultimately recommended that the Department enter a Final Order denying Realadyne's applications for restoration coverage under FPLIRP.
RULINGS ON REALADYNE'S EXCEPTIONS
Preface
Realadyne filed 17 exceptions disputing portions of the Hearing Officer's findings of fact and conclusions of law. As a preface to the rulings on the various exceptions, it is appropriate to comment on the standard of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.
Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. However, these statutory provisions mandate that an agency may not reject or modify findings of fact made by the hearing officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See Freeze v. Debt. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d. 1122 (Fla. 1st DCA 1987).
The agency reviewing a recommended order may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, the reviewing agency is bound by such finding. Florida Department of Business Regulation v. Bradley, supra at 1123. At the review level, however, the agency head is free to exercise his or her judgment and reject the hearing officer's conclusions of law. See, e.g., MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
Exceptions 1 and 2
In these two exceptions, Realadyne asserts that the date of the telephone conversation between Ms. Martin and Mr. Moghadam and Ms. Martin's subsequent letter to the Department was July 19, 1991, rather than the date of July 19, 1990, as set forth in paragraphs 14 and 17 4/ of the Recommended Order. The Department's responses concur with these assertions of Realadyne. These two exceptions are granted to the extent of correcting the date, but are deemed to be clerical errors constituting harmless error.
Exceptions 3 and 4
In exceptions 3 and 4, Realadyne takes issue with the Hearing Officer's findings of fact in paragraphs 29 and 30 of the Recommended Order. These two findings of fact pertain to the same telephone conversation and letter referred to in the previous ruling. The factual finding in paragraph 29 is consistent with the finding set forth in paragraph 14 as corrected above. In addition, the Department's response correctly notes that the Hearing Officer's findings in paragraph 30 are identical to the material facts stipulated to by Realadyne in paragraph 22 of the Stipulation filed with DOAH. The Department's response also correctly points out that Realadyne's reliance on the deposition testimony of
Mr. Moghadam is improper, since the record does not reflect that Moghadam's deposition was admitted into evidence in the DOAH proceeding.
Realadyne's exceptions relate more to factual matters purportedly rejected and alluded to by the Hearing Officer than to the findings expressly contained in paragraphs 29 and 30. As noted in the Preface above, Florida law imposes severe limitations on the authority of a reviewing agency to reject or modify the findings of fact of a hearing officer. The Secretary is not free to modify the findings of fact in the Recommended Order to fit a conclusion desired by Realadyne by interpreting the evidence or drawing inferences therefrom inconsistent with the rulings of the Hearing Officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985).
In any event, these findings of fact reflect the weight and credibility given by the Hearing Officer to the testimony of Ms. Martin and Mr. Moghadam at the DOAH final hearing. A reviewing agency may not reweigh or resolve alleged conflicts in the evidence, nor may the agency attempt to judge the credibility of the witnesses testifying at a formal hearing conducted by DOAH. Heifetz v. Dept. of Business Regulation, supra at 1281. These evidentiary matters are functions within the primary province of the Hearing Officer. Consequently, Realadyne's numbered exceptions 3 and 4 relating to the Hearing Officer's findings of fact numbers 29 and 30 are denied.
Exception No. 5
This exception takes issue with the finding of fact in paragraph 40 of the Recommended Order wherein the Hearing Officer refers to a warning letter to Realadyne from PCPHU dated September 12, 1992. Realadyne contends that the letter is irrelevant because the underground storage tanks had already been removed from the facility. Issues of relevance and materiality of evidence at a DOAH formal hearing are ordinary factual matters not within the expertise of the reviewing agency, but are matters within the sound discretion of the Hearing Officer as the primary finder of facts. Heifetz v. Dept. of Business Regulation, supra at 1282.
In the prior contacts between PCPHU and Realadyne, one of the stated issues was whether or not Realadyne intended to reline or replace the petroleum storage tanks at the facility. Thus, the record on review does not support a conclusion that the Hearing Officer's factual finding pertaining to the subject warning letter from PCPHU is totally irrelevant to the issue of whether Realadyne is entitled to reimbursement under FPLIRP for restoration costs of the petroleum discharges at the facility. In view of the above and the discussion set forth in the prior ruling, Realadyne's exception number 5 pertaining to the Hearing Officer's finding of fact number 40 is denied.
Exceptions 6, 7 and 8
These exceptions pertain to the Hearing Officer's findings in paragraph 42,
43 and 44 of the Recommended Order relating to Realadyne's written request that the Department grant alternate proceedings. Realadyne argues in exceptions 6 and 8 that the Hearing Officer erred by designating its rulings in paragraphs 42 and 44 as "findings of fact" rather than "conclusions of law." These rulings, however, seem to involve mixed questions of law and fact where the Hearing Officer construes the respective provisions of Rules 17-761.510 and 17-761.850, Florida Administrative Code, in light of the particular facts of this case.
In paragraph 42, the Hearing Officer characterizes Realadyne's request for proceedings as a request for an after-the-fact exception to the retrofit requirements of Rule 17-761.510, Florida Administrative Code. In paragraph 44, the Hearing Officer concludes that Realadyne's belated request for a proceeding "was not a viable procedure to extend the December 31, 1989 retrofitting deadline, even assuming the request otherwise complied with Rule 17-761.850, Florida Administrative Code." To the extent that the Hearing Officer may have erred by designating paragraphs 42 and 44 of the Recommended Order as pure findings of fact, such technical error is harmless. The substantive rulings of the Hearing Officer in these two paragraphs appear to be reasonable constructions of the governing law supported by competent substantial evidence of record, regardless of whether they are deemed to be findings of fact, conclusions of law or combinations of both.
Realadyne's argument in exception 7 that the Hearing Officer's finding of fact number 43 "is inconsistent with the greater weight of evidence" is misplaced. The standard on agency review, as discussed in the Preface above, is not whether a hearing officer's finding of fact is consistent with the greater weight of evidence, but whether it is supported by any competent substantial evidence of record. Finding of fact number 43 does appear to be supported by competent substantial evidence of record. Paragraph 20 of the pre-hearing Stipulation contains a stipulation by Realadyne that Farid Moghadam's job duties during 1991 included review of alternate procedure requests under Rule 17- 761.850, Florida Administrative Code. Moghadam's testimony at the DOAH final hearing was that he had been an engineer with the Department for approximately eight years and was familiar and had working experience with the rule relating to requests for alternate procedures. (T 69, 188-190) Mr. Moghadam further testified that the Department had a policy of not proceeding with a request for alternate procedures under its rules if the facility was at that time out of compliance with the retrofitting requirements of Chapter 17-761, Florida Administrative Code. 5/ (T 192)
In view of the above, Realadyne's exceptions to the Hearing Officer's findings and conclusions in paragraphs 42, 43 and 44 of the Recommended Order are denied.
Exception 9
This exception pertains to the Hearing Officer's finding of fact number 50 that Realadyne's President, Mary Martin, knew or should have known at the time of filing the FPLIRP affidavit that the facility was not in compliance with the Department's applicable storage tank regulations. Realadyne does not dispute the fact that Ms. Martin admitted in her letter dated July 19, 1991, to John Svec of the Department's Bureau of Waste Cleanup that the "facility has not been in compliance for over a year." (Ex. 10) This admission was made only a week prior to the time Ms. Martin executed the FPLIRP application affidavit wherein she attested to the fact that the facility complied with all applicable Department storage tank regulations.
Realadyne suggests in this exception that Ms. Martin was expressly directed by Farid Moghadam to make the sworn statement in the FPLIRP affidavit concerning the facility's compliance with applicable Department rules. This claim was refuted by Moghadam's hearing testimony that he was "a hundred percent certain" that Ms. Martin never informed him during their initial telephone conversation in July of 1991 whether or not the facility was in compliance with the retrofit requirements of Rule 17-761.510, Florida Administrative Code. (T 190) Mr.
Moghadam testified that he thought the storage tanks at the facility were out-
of-service at that time. (T 70, 189) Moghadam also stated that he did not learn until the Department received subsequent documentation from Ms. Martin that the facility was "seriously out of compliance" with the Department's rules. (T 73) The Hearing Officer obviously gave considerable weight and credence to the hearing testimony of Farid Moghadam. The Department, on agency review, is not free to overrule the Hearing Officer on such evidentiary matters. This exception to the Hearing Officer's finding of fact number 50 is denied.
Exception 10
This exception takes issue with portions of the Hearing Officer's findings of facts 51 and 52. Realadyne's only objection to finding of fact 51 is the designated date of December 4, 1991. The Department's response notes that the contact referred to by the Hearing Officer here actually occurred on September 4, 1991. (T 196) Realadyne also takes exception to the Hearing Officer's finding in the first sentence of paragraph 52 that Realadyne was informed by the Department that it would not process the request for alternate proceedings because the facility was already out of compliance with applicable retrofitting requirements. Realadyne asserts that there is no testimony in the transcript or any other evidence to support this finding. The Department's response failed to directly rebut this assertion and did not cite any testimony or documentary evidence of record arguably supporting this finding of the Hearing Officer.
A review of the complete record does not reflect that the challenged finding of fact was based on competent substantial evidence. Consequently, Realadyne's exception 10 is granted to the extent of inserting the word "September" in lieu of "December" in finding of fact 51 and by deleting the first sentence from finding of fact 52.
Exceptions 11 and 12
These two exceptions relate to the Hearing Officer's finding of fact 63 and conclusion of law 73. Exception 11 consists of a naked conclusory assertion by Realadyne that it did comply with the retrofitting requirements of Rule 17- 761.510, Florida Administrative Code, by its action of removing the petroleum storage systems from service and conducting closure activities on June 23, 1992. Exception 12 consists of a similar unsupported conclusory statement that the Hearing Officer's conclusion of law 73 concerning Realadyne's failure to comply with Rule 17-761.510 disregards Realadyne's later action of requesting approval from the Department of alternate procedures under Rule 17-761.850, Florida Administrative Code.
The Department's response, however, correctly observes that the critical deadline for complying with the retrofitting requirements [as stipulated to by Realadyne] was December 31, 1989. Also, Realadyne was advised in July of 1990 of evidence of a discharge at the facility as the result of PCPHU's compliance inspection. Section 376.305(1), Florida Statutes, requires that any person "discharging a pollutant as prohibited by ss. 376.30-376.319 shall immediately undertake to contain and abate the discharge to the satisfaction of the Department." The provisions of Rule 17-769.600(13)(a), Florida Administrative Code, require that if any petroleum storage system is known to be leaking, the owner or operator "shall within three days [of a discharge] remove the system from service until it has been tested and either replaced or repaired." (emphasis supplied The permanent closure of the noncomplying facility over 30 months after the retrofitting deadline and almost two years after being notified of evidence of a discharge can hardly be characterized as immediate compliance with Rule 17-761.510 or with Section 376.305(1) and Rule 17-769.600(1).
There is no language either in Rule 17-761.510 or Rule 17-761.850, Florida Administrative Code, providing that the filing of an after-the-fact request for alternate procedures operates to revive and extend the time for a retrofitting deadline which has already expired. In addition, the uncontradicted testimony of Farid Moghadam was that the Department had a policy of not proceeding with a review and determination of a request for alternate procedures under the rule where the facility is already out of compliance with retrofitting requirements. (T 192) Consequently, Realadyne's exceptions to finding of fact 63 and conclusion of law 73 are denied.
Exceptions 13 and 16
These two exceptions relate to the Hearing Officer's conclusions of law 74 and 80 holding that Realadyne's two claims for entitlement to restoration coverage under FPLIRP are governed by the statutory provisions of Section 376.3072(3), Florida Statutes (1991), which read in pertinent part as follows:
(3)(a) ELIGIBILITY FOR PARTICIPATION.--
In order to participate in the insurance and restoration program, an owner or operator must file an affidavit with the department, which affidavit states that the owner or operator has read and is familiar with this chapter and the rules relating to petroleum storage systems or petroleum contamination site cleanup adopted pursuant to s. 376.303 and that the facility is in compliance with this chapter and applicable rules adopted pursuant to s. 376.303.
(b) The failure of any owner or operator of a storage system containing petroleum products to maintain compliance with this
chapter and rules relating to stationary tanks adopted pursuant to s. 376.303 at any location will result in the cancellation of liability insurance provided through this program and eligibility for the restoration program for that location.
Realadyne contends that later amended language language of Section 376.3072(2)(b)3, Florida Statutes (Supp. 1992), controls with respect to its two claims for FPLIRP restoration coverage. These 1992 statutory provisions read as follows:
To be eligible, the facility shall be in compliance with the Department rules as demonstrated at the most recent inspection conducted by the Department or the insured demonstrates that any necessary corrective action identified at the most recent inspection have been corrected as ordered by the Department. (emphasis added).
The Hearing Officer's conclusions and the Department's response note that the two petroleum discharges at issue here were reported in Discharge
Notification Forms filed by Realadyne on March 10 and June 22, 1992. 6/ However, the 1992 amendments to Section 376.3072 did not become effective until July 1, 1992. See Chapter 92-30, s. 28, Laws of Florida. Realadyne argues that the 1992 amendments to Section 376.3072 were remedial in nature and should be given retroactive application. Realadyne's exceptions cite various appellate decisions of Florida purportedly supporting its legal position. None of the cases cited by Realadyne, however, involved FPLIRP statutory or rule provisions.
The Department's response relies on the recent appellate case of Hughes Supply, Inc. v. Department of Environmental Regulation, 622 So.2d 1056 (Fla. 5th DCA 1993). The Hughes Supply case involved a judicial construction of the identical statutory provisions involved in this case and resulted in a holding affirming a similar Department Final Order denying restoration coverage under FPLIRP. In the Hughes Supply opinion, the court expressly rejected a similar claim that the 1992 amendments to Section 376.3072 should be applied retroactively. Id. at 1061. In view of the Hughes Supply decision seemingly directly on point, Realadyne's "retroactively" argument must be rejected.
The court also ruled in Hughes Supply that, even if the 1992 statutory provisions were applicable, the applicant would still not be entitled to restoration coverage because it failed to take immediate action to make the corrections ordered by the Department. The court concluded in the Hughes Supply opinion that the corrective action must be accompanied within the time period required by the Department through the statute and rules. Id. at 1061. As discussed in the prior ruling on exceptions 11 and 12, immediate action within three days of discovery of a discharge to contain and abate it and to remove the system from service until either repaired or repaired is required by Section 376.305(1), Florida Statutes, and by Rule 17-769.600(13)(a), Florida Administrative Code. The record in this case is replete with instances where Realadyne has failed to take immediate action to make corrections ordered by the Department or by its delegated agent PCPHU.
In light of the above, Realadyne's exceptions to the Hearing Officer's conclusions of law 74 and 80 are denied.
Exception 14
Exception 14 is limited to the first sentence of conclusion of law 77 wherein the Hearing Officer concludes that Realadyne's failure to initiate a contamination assessment report ordered by PCPHU constitutes an additional basis of noncompliance with applicable regulations. Realadyne's exception correctly notes that paragraph 11 of the Recommended Order contains an undisputed finding of fact incorporating the parties' pre-hearing stipulation that the sole remaining basis for a determination of ineligibility for FPLIRP coverage is the failure to "upgrade petroleum storage system in accordance to the schedule required by Section 17-761.510(6), F.A.C."
The prior ruling on Exception 5 discusses the prevailing law that relevance of evidence is a matter within the sound discretion of the Hearing Officer as the trier of the facts. The Hearing Officer was apparently of the view that the contamination assessment report requested by PCPHU was relevant to the issue of upgrading the petroleum storage system at Realadyne's facility. I am unable to determine that this conclusion constitutes a clear abuse of the Hearing Officer's discretion. Consequently, Exception 14 is denied.
Exception 15
Exception 15 takes issue with conclusion of law 78 dealing with the issue of the legal effect of Realadyne's request for approval of "alternate proceedings" received by the Department on or about July 22, 1991. The core of Realadyne's legal position in this case seems to be that the Department's failure to provide a written response to Realadyne's belated request for alternate proceedings has the legal effect of waiving or excusing Realadyne's admitted failure to comply with the December 31, 1989, deadline for upgrading the petroleum storage tanks at its facility. This legal argument was essentially rejected in the prior ruling denying Realadyne's exceptions 11 and 12.
Realadyne is correct in its assertion that the provisions of Rule 17- 761.850(3), Florida Administrative Code, require that each request for alternate procedures shall be approved or denied by the Department and that written notice of such action shall be provided. There is no language in Rule 17-761.850, however, providing that the Department's failure to provide written notice of its action thereunder entitles the requesting party to a "default" approval of a request for alternate procedures or a "default" determination of eligibility for restoration coverage under FPLIRP.
Realadyne's reliance of the case of Fonte v. State Dept. of Environmental Regulation, 634 So.2d 663 (Fla. 2d DCA 1994), is misplaced. The Fonte decision involved an interpretation of the provisions of Section 403.0876, Florida Statutes, dealing with procedures for reviewing permits filed under the Florida Air and Water Pollution Control Act. The provisions of Section 403.0876(1) expressly require the Department to review applications filed under Chapter 403 and to request any additional information needed from the applicant within 30 days from receipt of the application. In addition, the related provisions of Section 403.0876(2) establish a mandatory 90-day statutory deadline for approval or denial of such permits.
This case arose under the Pollution Spill Prevention and Control Act provisions embodied in Chapter 376, Florida Statutes, and the Department's implementing rules. There are no provisions in Section 376.3072 or in Rule 17- 761.850 (similar to those in Section 403.0876) establishing specific deadlines for review and ultimate approval or denial of applications for reimbursement under FPLIRP for petroleum discharge restoration costs or requests for alternate procedures pertaining to underground storage systems. Thus, Realadyne's legal conclusion that it is entitled to a "default permit" due to the Department's failure to provide written notice of its action under Rule 17-761.850 is without merit.
Realadyne's argument that it was "materially and adversely prejudiced" by the Department's failure to respond in writing to the 1991 request for alternate proceedings is not compelling for several reasons. First, the only alternate proceedings proposed in Realadyne's written request was "for removal of and replacement of the tanks." (Ex. 10) The Recommended Order and the Department's response both correctly observe that there are no statutory or rule requirements imposing upon an owner or operator of a facility the duty to obtain prior Department approval as a condition of removing or replacing petroleum storage tanks. Thus, no material prejudice can be legally attributed to the Department's failure to provide Realadyne written notice of approval or denial of proposed procedures not requiring prior approval.
The Recommended Order and Department response also correctly conclude that there are no statutory or rule provisions or Department policy authorizing the Department to grant an after-the-fact exemption from or extension of the December 31, 1989, deadline for upgrading the petroleum storage systems at the facility. Realadyne was "materially and adversely prejudiced" by its failure to timely comply with the retrofitting deadline and by its repeated failures to immediately take the corrective actions requested by the Department and PCPHU.
Exception 16 is denied for the reasons set forth above.
Exception 17
Exception 17 relates to the Hearing Officer's unnumbered recommendation on page 20 of the Recommended Order that the Department enter a Final Order denying Realadyne's applications for reimbursement under FPLIRP for restoration costs of the two reported discharges at issue here. Realadyne's argument merely incorporates the matters raised in its preceding 16 exceptions. This exception is denied based on the prior rulings in this Final Order which are incorporated herein by reference.
CONCLUSION
The Hearing Officer's critical finding that the petroleum storage systems at Realadyne's facility were not upgraded or retrofitted by December 31, 1989, as required by Rule 17-761.510, Florida Administrative Code, is supported by competent substantial evidence of record. In fact, the record is devoid of any evidence that Realadyne initiated any action prior to this mandatory deadline to upgrade, remove or replace the petroleum storage systems at the facility. The Hearing Officer's related finding that Realadyne's facility was still in noncompliance with the retrofitting requirements of Rule 17-761.510 on July 26, 1991, when Realadyne's president signed a FPLIRP application affidavit to the contrary is also amply supported by the evidence of record. Realadyne's request for alternate proceedings seeking approval for removal and replacement of the petroleum storage tanks at the facility was made over 18 months after the mandatory retrofitting deadline and a year after being notified by PCPHU of evidence of a discharge at the facility. This unnecessary and belated request and the Department's failure to respond in writing thereto are not valid legal bases for a determination of "default" eligibility for restoration coverage under FPLIRP. It is therefore ORDERED:
Paragraphs 14 and 17 of the Recommended Order are modified by substituting the year "1991" in lieu of the designated year "1990" on the first line of each paragraph.
Paragraph 51 of the Recommended Order is modified by substituting the month "September" in lieu of the designated month "December" on the first line of the paragraph.
Paragraph 52 of the Recommended Order is modified by deleting therefrom from the first sentence.
The recommendation of the Hearing Officer on pages 19-20 of the Recommended Order is adopted.
The Recommended Order, as modified in paragraphs A through C above, is adopted and incorporated herein by reference.
The applications of Realadyne, Inc., for reimbursement from the Florida Petroleum Liability Insurance and Restoration Program of restoration costs of the two reported petroleum discharges at issue in this case are DENIED.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 2nd day of March, 1995, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
ENDNOTES
1/ At all times material to this case, the Department had delegated to Pinellas County the authority to perform certain types of inspections with regard to underground petroleum storage systems. These inspections are performed by PCPHU.
2/ The provisions of Chapter 17-761, Florida Administrative Code, superceded the provisions of former Chapter 17-61, Florida Administrative Code, effective December 10, 1990. However, there were no changes in the retrofitting requirements and deadlines relating to the petroleum storage systems at Realadyne's facility.
3/ The provisions of Title 17, Florida Administrative Code, were transferred intact to a newly created Title 62, Florida Administrative Code, effective August 10, 1994. These rule provisions will continue to be referred to throughout this Final Order with their former Title 17, Florida Administrative Code, designation in the interest of consistency with the Recommended Order.
4/ Realadyne's exceptions erroneously refer to the Hearing Officer's finding of fact number 17, as "Finding of Fact No. 72."
5/ Realadyne also asserts in exception number 7 that Mr. Moghadam testified that it was Department policy to reject or deny every alternate procedure request in writing. The Department conceded in its responses that it did not respond in writing to Realadyne's request for an alternate proceedings, but correctly observed that the Hearing Officer's finding of fact number 43 deals solely with the Department's policy of not proceeding with a request for alternate procedures if the facility was not in compliance with retrofitting requirements. Thus, the admitted failure of the Department to reject or deny
Realadyne's request for alternate proceedings in writing does not affect the validity of the finding of fact in paragraph 43 of the Recommended Order.
6/ Eligibility for restoration coverage under FPLIRP is based on an incident- by-incident basis of reported petroleum discharges. See Rule 17-769.600(4)(15), Florida Administrative Code.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by
U.S. Mail to:
Russell S. Thomas, Esquire Williams, Reed, Weinstein,
Schifino & Mangione, P.A. One Tampa City Ctr Ste 2600 P O Box 380
Tampa Florida 33601
and by hand delivery to:
James E. Bradwell Ann Cole, Clerk
Hearing Officer Division of Administrative Division of Administrative Hearings
Hearings The DeSoto Bldg
The DeSoto Bldg 1230 Apalachee Pkwy
1230 Apalachee Pkwy Tallahassee Florida 32399-1550
Tallahassee Florida 32399-1550
W. Douglas Beason, Esquire
Department of Environmental Protection 2600 Blair Stone Rd
Tallahassee Florida 32399-2400 this 2nd day of March, 1995.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Telephone: 904/488-9314
| Issue Date | Proceedings |
|---|---|
| Mar. 03, 1995 | Final Order filed. |
| Jan. 13, 1995 | (Petitioner) Notice of Filing; Exceptions to Recommended Order Tagged filed. |
| Dec. 30, 1994 | (Respondent) Order Granting Request for Extension of Time to File Exceptions filed. |
| Dec. 07, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 5-13-94. |
| Jun. 27, 1994 | (Petitioner) Notice of Filing w/Proposed Recommended Order (unsigned)filed. |
| Jun. 24, 1994 | Department of Environmental Protection`s Proposed Recommended Order filed. |
| Jun. 20, 1994 | Joint Stipulation to Extend Time to Submit (proposed recommended order) filed. |
| Jun. 02, 1994 | Transcript filed. |
| May 13, 1994 | CASE STATUS: Hearing Held. |
| May 10, 1994 | Joint Pre-Hearing Stipulation filed. |
| May 09, 1994 | CC Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum filed. |
| Apr. 08, 1994 | Amended Notice of Hearing (as to Location only) sent out. (hearing set for 5/13/94; 9:30am; Tampa) |
| Feb. 07, 1994 | Order Granting Continuance sent out. (hearing set for 5/13/94; 9:30am; Tampa) |
| Feb. 07, 1994 | Order Establishing Prehearing Procedure sent out. |
| Feb. 07, 1994 | Notice of Hearing sent out. (hearing set for 5/13/94; 9:30am; Tampa) |
| Feb. 03, 1994 | Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum filed. |
| Feb. 01, 1994 | Department of Environmental Protection`s Notice of Taking Deposition filed. |
| Jan. 18, 1994 | Order Granting Continuance sent out. (hearing rescheduled for 2/10/94; 9:30am; Tampa) |
| Oct. 15, 1993 | Order Granting Continuance sent out. (hearing rescheduled for 2/1/94; 10:30am; Tampa) |
| Oct. 12, 1993 | Department of Environmental Protection`s Motion for Continuance filed. |
| Oct. 05, 1993 | Department of Environmental Protection`s Notice of Taking Deposition filed. |
| Oct. 05, 1993 | (Petitioner) Notice of Taking Deposition Duces Tecum (2); Amended Notice of Taking Deposition Duces Tecum filed. |
| Sep. 24, 1993 | Notice of Taking Deposition Duces Tecuum filed. |
| Sep. 20, 1993 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 06, 1993 | Realadyne`s Notice of Serving First Set of Interrogatories; Realadyne`s Notice of Serving Second Set of Interrogatories Request for Production of Documents filed. |
| Aug. 06, 1993 | Realadyne`s Notice of Serving First Set of Interrogatories; Realadyne`s Notice of Serving Second Set of Interrogatories; Request for Production of Documents filed. |
| Aug. 06, 1993 | (Petitioner) Request for Production of Documents filed. |
| Jul. 13, 1993 | Order Granting Continuance sent out. (hearing rescheduled for 10/15/93; 9:00am; Tampa) |
| Jul. 09, 1993 | (Petitioner) Motion for Continuance; Notice of Appearance filed. |
| Apr. 22, 1993 | Order Granting Continuance sent out. (hearing rescheduled for 7-6-93; 10:30am; Tampa) |
| Apr. 16, 1993 | Department of Environmental Regulation`s Notice of Substitution of Counsel filed. |
| Feb. 19, 1993 | Order Granting Continuance and Changing Location of Hearing sent out. (hearing rescheduled for 4-23-93; 9:30am; Tampa) |
| Feb. 18, 1993 | Petitioner`s Motion for Continuance and Change of Venue & Cover Letter to AHP from M. McAuliffe filed. |
| Jan. 06, 1993 | Order Granting Continuance sent out. (hearing rescheduled for 2-22-93; 9:30am; Tallahassee) |
| Jan. 05, 1993 | Respondent`s Motion for Continuance filed. |
| Dec. 11, 1992 | Notice of Hearing sent out. (hearing set for 1-25-93; 9:30am; Tallahassee) |
| Oct. 07, 1992 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Notice of Appearance and Request for Formal Administrative Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 02, 1995 | Agency Final Order | |
| Dec. 07, 1994 | Recommended Order | Petitioner is not eligible for restoration coverage. |
EAU GALLIE YACHT CLUB, INC. vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 92-006066 (1992)
HUGHES SUPPLY, INC. vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 92-006066 (1992)
FLAV-O-RICH, INC. vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 92-006066 (1992)
JONES MANAGEMENT CORPORATION vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 92-006066 (1992)
