STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEBBS WOOD PRODUCTS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-6376

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Jesse W. Rigby, Esquire

CLARK, PARTINGTON, HART, LARRY, BOND, STACKHOUSE & STONE

One Pensacola Plaza

125 West Romana Street, Suite 800 Post Office Box 13010

Pensacola, Florida 32591-3010

For Respondent: Jefferson M. Braswell, Esquire

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner, Webbs Wood Products, Inc., is eligible for participation and reimbursement in and from the Abandoned Tank Restoration Program (ATRP) as provided for in Section 376.305(7), Florida Statutes, concerning its facility located in Gonzalez, Florida.

PRELIMINARY STATEMENT

This cause arose upon the filing of an application for eligibility for the ATRP with the Respondent, Department of Environmental Protection (Department), with regard to contamination at the Petitioner's facility caused by abandoned underground storage tanks (UST's). The application was filed on June 30, 1992, and a letter of denial was issued by the Department on or about October 2, 1992. On October 19, 1992, a petition was filed by the above-named Petitioner seeking an administrative proceeding to contest the denial of eligibility for the ATRP.

The Petitioner claims that it is eligible for admission into the ATRP under criteria set forth in Section 376.305(7), Florida Statutes, because the two UST's taken out of service prior to March 1, 1990 were, in reality, a separate facility from the aboveground storage tanks (AST's) which were installed immediately after the UST's were taken out of service and which remained in service past March 1, 1990, and at least up until August 1992.

The petition was in due course referred to the Division of Administrative Hearings and the undersigned Hearing Officer. The cause came on for final hearing as noticed at which the Petitioner presented the testimony of Douglas Webb, Sr., the owner and president of Webbs Wood Products, Inc., and Eric Ericson, the storage tank program administrator for the Department's Northwest District Office. The Department presented the testimony of William Truman, the administrator of the Department's petroleum insurance program. The exhibits enumerated in the joint prehearing statement were introduced into evidence at the hearing and the record was preserved on audiotapes operated by the Department at the hearing.

The parties elected to submit proposed findings of fact and conclusions of law in the form of proposed recommended orders. Those proposed findings of fact are addressed in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

The parties stipulated to certain facts which are found next below:

1. The Petitioner, at times pertinent hereto, was the manufacturer of wood shipping pallets at its facility in Gonzalez, Florida. The Petitioner made a practice of storing petroleum fuel on its premises in order to fuel its forklifts, trucks, and other equipment. It stored this fuel until approximately September 1989 in UST's.

   
   

2. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the ATRP provided for in Chapter 376, Florida Statutes, and regulating entry by private businesses and individuals into that program, by reviewing their qualifications.

   
   

3. The UST's at issue were removed from the ground when contamination related to them was discovered in September 1989. It is undisputed that the UST's were causing contamination into the soil in the area immediately under and around the UST's. The UST's were properly closed according to Department- administered law and regulation by November 1989. Two AST's were installed to provide fuel for the Petitioner's business around September 1989 at approximately the same time that the UST's were removed from service and removed from the ground at the site. The AST's were installed inside a fenced compound, separated from the former location of the UST's by approximately 40 feet. There is no evidence, nor is it contended, that any contamination at the site has resulted from the AST's which were installed to replace the UST system.

   
   

4. On June 30, 1992, the Petitioner filed an ATRP application pursuant to Section 376.305(7), Florida Statutes. This application related to contamination which had leaked at the facility from the UST's which had been installed there until approximately September 1989. On June 30, 1992, the Petitioner also filed a storage tank registration revision for its facility numbered 178520358, deleting the two AST's which had been included with the two UST's registered

   under that same facility number. The Petitioner also filed for a new storage tank registration in his own name as lessee/operator for the AST.

   
   

5. The AST's were issued a new registration numbered 179202812 on or about October 7, 1992. On October 2, 1992, the Department issued an order denying eligibility for the ATRP concerning the contamination related to the UST's.

   
   

6. The AST's were designed as replacement tanks for the UST's and were used to serve the same business purpose as had the UST's. Both the UST's and the AST's were used to fuel the same vehicles and type of vehicles used in the conduct of the Petitioner's business. The fueling facility and the business were conducted on the same contiguous parcel of property (the site) and the two tank systems were not used at the same time. That is, when the UST's were abandoned and removed, only then did the AST's get installed and continue the previous operation of fueling the Petitioner's vehicles. The UST's and AST's clearly were used for the same business purpose, and the AST's clearly replaced the UST's in performing that identical purpose.

   
   

7. When the UST's were removed from the Petitioner's site, the Petitioner still intended to stay in business because it spent $18,000.00 on the purchase and installation of the AST's and immediately began using them for the same purpose, that is, fueling its vehicles. The Petitioner did store petroleum products for its own consumption in the AST's after March 1, 1990. The Petitioner did not attempt to obtain separate registration numbers, which might conceivably be deemed indicative of separate "facilities" until June 30, 1992. The Petitioner sought the new facility identification number, as shown by Mr. Webb's own testimony, in order to render the AST's to be considered a separate facility from the UST's which had been removed, so that eligibility in the ATRP could be obtained for cleaning up the contamination related to the UST's. It is ordinary practice for the Department to give both AST's and UST's the same facility identification number (and to consider them the same "facility") when the UST's and AST's are located in close proximity to each other, are on the same contiguous single parcel of land, and are used as replacement tanks for the other.

   
   

8. Separate numbers for each petroleum storage system on a site creates an inspection problem for the Department and may triple the number of registered facilities in the State creating administrative problems and confusion for Department inspectors. The Petitioner did not establish evidence that the Department has as a policy of issuing or, in any given instance has issued, two separate facility identification numbers for any other two petroleum storage systems where the storage systems have the same owner, on the same relatively small parcel of land, in close proximity to the other tanks and where the tanks involved served the identical general business purpose of the owner. The mere issuance of a separate facility identification number for the AST's in 1992 does not indicate that the AST's were a separate "facility" for the purpose of eligibility under the ATRP as that eligibility is described in the authority cited below.

   
   

9. The facts proven by the preponderant evidence of record establish that the Petitioner's UST petroleum system and the AST petroleum storage system were just that, separate storage systems at the same facility, owned by the same owner on a small contiguous parcel of property in close proximity to each other, serving the same business purpose, and doing it serially, with one tank system being a replacement for the other. Quite simply, the facts show that the Petitioner had one facility with two storage tank systems, one of which replaced the other, performing the same purpose.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

11. The issue to be resolved in this proceeding concerns whether the Petitioner is eligible for participation in the abandoned tank restoration program. In that regard, Section 376.205(7), Florida Statutes (Supp. 1992), provides, in pertinent part, as follows:

    
    

    (7) The legislature created the abandoned tank restoration program in response to the need to provide financial assistance for cleanup of sites that have abandoned petroleum storage systems. For purposes of this subsection, the term "abandoned petroleum storage system" shall mean any petroleum storage system that has not stored petroleum products for consumption, use, or sale since March 1, 1990. The Department shall establish the abandoned tank restoration program to facilitate the restoration of sites contaminated by abandoned petroleum systems.

    (a) To be included in the program:

    1. An application must be submitted to the department by June 30, 1992, certifying that the system has not stored petroleum products for consumption, use, or sale at the facility since March 1, 1990.

    2. The owner or operator of the petroleum storage system when it was in service decided not to continue in business for consumption, use, or sale of petroleum products at that facility. (emphasis supplied)

    
    

12. The Petitioner maintains that the UST's and AST's are separate "facilities" because the AST's were issued a separate facility identification number on October 7, 1992. The Petitioner applied for the separate facility identification number for the AST's for the purpose of circumventing a statutory requirement that the facility be out of business in order to gain eligibility for the ATRP. No evidence was offered to show that the new facility number was sought for a necessary business purpose. In fact, the UST's at the facility had been out of service for over a year when the Petitioner applied to the Department to have a separate facility number issued for the AST's. The AST's had entirely replaced the UST's for that period of time before the Petitioner applied for the separate facility number for them.

    
    

13. Mr. Ericson testified on behalf of the Petitioner to the effect that he knew of no circumstances similar to that offered by the Petitioner, where the owner of two separate tank systems serving the same business purpose located on the same parcel of land was allowed to have two separate facility numbers. Separate facility identification numbers for each tank system on the same parcel would cause confusion for Department inspection staff. The Department initiated the program of tank registration for the purpose of identifying and locating

    petroleum storage systems throughout the State. If petroleum storage facilities were allowed to split their facility identification numbers between in-service tanks and abandoned tanks and then claim that the abandoned systems are eligible for the financial assistance program because they are separate "facilities", this would circumvent the intent of the legislation creating the financial assistance program.

    
    

14. It should be noted that when the AST's were installed at the Petitioner's facility, they were installed as replacement tanks for the UST's. Consequently, when the AST's were initially inspected and registered, they were properly given the same identification number as the UST's they replaced. The Department's inspectors routinely correct incorrect registration information, including numbers upon inspection of such facilities. It is noteworthy that the number for the Petitioner was never changed as a result of such inspections. It is equally noteworthy that the same registration number for both the UST's and AST's is correct because the Petitioner never sought to have a separate facility identification number issued until the deadline for applications for ATRP approached. The Petitioner thus appears to have only attempted to get a separate facility identification number so as to circumvent the intent of the ATRP legislation and gain eligibility through a technicality by attempting to have the storage tank systems considered as separate facilities, when, in reality, they were merely separate systems with one replacing the other performing the identical business purpose.

    
    

15. In any event, the issue of facility identification numbers is not the pivotal, material consideration in resolving this dispute. Such numbers are not the primary method of determining whether a separate facility exists for purposes of the ATRP. The number issued to the Petitioner is simply a means of registering the system and is issued by the Department's registration section merely upon request. The number is not a definitive statement as whether different or multiple facilities exist. The definition of "facility" contained in Section 376.301(7), Florida Statutes, contains no reference to facility identification numbers as a means of determining the existence of a separate facility. The term "facility" is defined for the purpose of the ATRP under Section 376.301, Florida Statutes (Supp. 1992), as follows:

    
    

    (7) 'Facility' means a nonresidential location containing, or which contained, 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. This subsection shall not apply to facilities covered by Chapter 377, or containers storing solid or gaseous pollutants, and agricultural tanks having storage capacities of less than 550 gallons. (emphasis supplied)

    
    

16. Because the Petitioner's business meets the criteria of containing underground tanks and aboveground tanks, the relevant term at issue is "nonresidential location". The Petitioner has argued that the statute defines a facility as a "location" and that "location" is not defined in the statute or by

    Department rule. Therefore, the Petitioner contends that the definition of "location" in the Random House College Dictionary should be employed. This argument should be rejected because the proper term at issue is that of "nonresidential location". A reasonable interpretation of "nonresidential location" would be a place of conducting a business with all the fixtures on a single parcel of property. A clear reading of the definition of "facility" indicates that it's description as a "nonresidential location" contemplates an area sufficient to conduct a business and does not, as Petitioner argues, contemplate a specific area on a "nonresidential location", such as a tank pit, within a business operation's parcel of property. Clearly, the Petitioner's business location and property is a type of nonresidential location which the legislature contemplated in defining "facility". The entire parcel of land where the Petitioner conducted the business of making wooden pallets must be deemed to be a single facility, which contained two systems at different periods of time, a UST system and an AST system. In light of the definitional language in the above statutory quote, it is clear that the term "facility" does not contemplate only a specific pit area within an overall parcel of property upon which one integrated business operation is conducted. Rather, "facility" means a nonresidential location at which there may be underground tanks or aboveground tanks or both, used for storing pollutants. It is not reasonable to interpret the above statutory definition of "facility" to mean only the specific spot where a particular tank system is located on a parcel of property owned by the same business owner who owns an aboveground tank system located on the same property which is used for the exact same business purpose. This is especially true where the aboveground system was a replacement system used for the exact same business purpose after the UST's were abandoned and removed. The entire parcel of property owned and operated at relevant times by the Petitioner is deemed to be a single facility which had, at various times, two storage tank systems performing the same function.

    
    

17. The Department has previously considered the issue of what constitutes a separate "site" for the purpose of eligibility for the ATRP. Hamilton County Board of County Commissioners v. Department of Environmental Regulation, DOAH Case No. 92-2682, Order entered February 24, 1993. The facts in the Hamilton County case are similar to those at bar. Like the Petitioner, the Department found Hamilton County ineligible for the ATRP because the county maintains storage tanks at the same "site" from which it removed the tanks it no longer used. The county had removed three old underground tanks and continued to use four remaining underground tanks, approximately three or four feet away.

    
    

18. In Hamilton County, the terms "facility", "location", and "site" were found to be interchangeable in the context of the ATRP eligibility question. The terms are found to have the same meaning and the Hearing Officer stated:

    
    

    [N]othing 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 cleanup efforts will prove premature.

    The clear indication from this quoted statement is that the three terms contemplate an area larger than a single tank pit. The term "site" within the context of the Hamilton County case is at a minimum two tank systems separated by approximately three or four feet that had the same owner and stored the same products. An additional fact indicating that the Petitioner's underground and aboveground tanks should be considered a single facility is that it is on a single parcel of land. The Department appears to have interpreted this statutory definition of "facility", according to the testimony of Mr. Truman, in those instances where the statutory language does not speak specifically and directly to a given factual issue so as to find a single facility where there is a single owner of all petroleum storage systems on a given single parcel of land and where the systems service a single business concern. The Petitioner is similar to the typical gas-station-type facility where the storage tanks are all located on the same contiguous parcel of property and which service a single business concern. The location of the tanks at Webbs was separated by 40 feet, had the same owner, were on a single parcel of land, serviced the same vehicles, and contained the same kind of fuel. For purposes of the ATRP and the above statutory definition of "facility", these considerations reasonably indicate that the Petitioner was a single facility having two systems at different times, the UST system and the AST system.

    
    

19. The Department contends that the Petitioner does not qualify for financial assistance under the ATRP because it "stored petroleum products for consumption, use, or sale at the facility after March 1, 1990." Section 376.305(7)(a)1., Florida Statutes (1992). Section 376.305(7)(a)2., Florida Statutes, states in relevant part:

    
    

    2. The owner or operator of petroleum storage system when it was in service decided not to continue in business for consumption, use, or sale of petroleum products at that facility.

    
    

20. Douglas Webb stated in his testimony that when he removed the UST's, he did not intend to go out of business for consumption, use, or sale of petroleum products because he had just spent $18,000.00 purchasing and installing the aboveground system. The Petitioner's decision to install the AST's and stay in the business of storing and consuming petroleum on the site with the use of the AST's was made while the UST's were still in service. Section 367.305(7)(a)2., Florida Statutes, clearly prohibits the Petitioner's eligibility into the ATRP under this circumstance.

    
    

21. The Petitioner was a single facility which stored and used fuel for its trucks and forklifts and utilized two separate "petroleum storage systems" to conduct its business. "Petroleum storage system" is defined under Section 376.305, as follows:

(17) 'Petroleum storage system' means a stationary tank not covered under provisions of Chapter 377, together with any onsite integral piping or dispensing system associated therewith, which is used, or intended to be used, for the storage or supply of any petroleum product. (emphasis supplied)

This definition contemplates the individual underground and aboveground systems owned by the Petitioner. The legislature contemplated that individual tanks with piping would be a "petroleum storage system" and not a "facility" as the Petitioner contends. A "facility" is a "nonresidential location" which can have more than one storage system. It is not simply a single "petroleum storage system." For purposes of the ATRP, it is clear that a single facility can have multiple petroleum storage systems. The Petitioner was a single facility with multiple "petroleum storage systems." The fact that the legislature defined these two terms differently to give the term "facility" a broader definition that contemplates the possibility of multiple storage systems supports the Department's position. The UST's and the AST's which the Petitioner argues are separate "facilities" clearly fit the definition of two separate "petroleum storage systems" on the same nonresidential location or site. The Petitioner is not eligible for the ATRP because it stored petroleum products for consumption, use, or sale at its same facility in the AST's after March 1, 1990 and it did not decide "not to continue in business for consumption, use, or sale of petroleum products at that facility..." at the time the UST's were removed from service. Rather, the Petitioner made a conscious decision to remain in that business when it removed the UST's and installed the AST's. Consequently, the application for eligibility should be denied.

RECOMMENDATION

In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Department denying the application of the Petitioner for eligibility for the abandoned tank restoration program.

DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 12th day of January, 1994.

APPENDIX

Petitioner's Proposed Findings of Fact

1-30. Accepted, with the exception of the last sentence of proposed finding of fact number 30. However, the proposed facts, while true, are not necessarily accepted for their purported material import in deciding the issues in this case.

Respondent's Proposed Findings of Fact

The Respondent's proposed findings of fact 1-21 are accepted, although not all of them are relevant and necessary to a decision on the factual and legal issues in this case and are subordinate to the Hearing Officer's findings of fact on the subject matter as are the Petitioner's proposed findings of fact.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Rod

Tallahassee, FL 32399-2400

Kenneth Plante, Esq.

General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Jesse W. Rigby, Esq.

CLARK, PARTINGTON, HART, LARRY, BOND, STACKHOUSE & STONE

One Pensacola Plaza

125 West Romana Street, Suite 800 Post Office Box 13010

Pensacola, FL 32591-3010

Jefferson M. Braswell, Esq.

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact 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: 92-006376

Orders for Case No: 92-006376