STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONES MANAGEMENT CORPORATION, )

a Florida Corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2821RX

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, Robert T. Benton, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above- styled case on September 14, 1993, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Melissa Fletcher Allaman

Attorney at Law

Post Office Drawer 1170 Tallahassee, Florida 32302

For Respondent: Jefferson M. Braswell

Lisa M. Duchene

W. Douglas Beason Assistants General Counsel

State of Florida, Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issue for determination is whether Rule 17

Administrative Code (1991), constitutes an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By application dated July 1, 1991, Jones Management Company (Petitioner) sought participation in the Abandoned Tanks Restoration Program (ATRP) managed by the Department of Environmental Protection (Respondent).

More than eighteen months later, on February 26, 1993, Respondent issued a letter documenting its decision to deny Petitioner's eligibility for the ATRP. On March 25, 1993, Petitioner sought an administrative hearing in accordance with Section 120.57(1), Florida Statutes, regarding Respondent's denial.

Petitioner also filed with the Division of Administrative Hearings a Petition For Determination of The Invalidity of Rule, pursuant to Section 120.56, Florida Statutes, challenging the validity of Respondent's Rule 17- 769.800(3)(a), F.A.C. (1991). Subsequently, on September 8, 1993, Petitioner filed with DOAH an Amendment to Petition For Determination of The Invalidity of Rule, pursuant to Section 120.56, Florida Statutes, amending the original petition to include a challenge to the validity of Rule 17-769.800(3)(a), F.A.C. (1993).

The challenged rules address the eligibility requirements for ATRP. The pending rule challenge case was consolidated with DOAH Case No. 93-2658, involving Respondent's denial of Petitioner's ATRP eligibility, for the purpose of conducting a final hearing. A separate recommended order addresses the issues raised in DOAH Case No. 93-2658.

At the final hearing, Petitioner presented the testimony of seven witnesses and one exhibit. Respondent presented testimony of three witnesses and one exhibit. The parties jointly presented 11 exhibits. A transcript of the final hearing was filed on September 22, 1993.

The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.

By order of the Director of the Division of Administrative Hearings dated January 6, 1994, this matter was assigned to the undersigned for purpose of preparation and issuance of the final order in DOAH Case No. 93-2821RX and the recommended order in DOAH Case No. 93-2658. Proposed findings of fact previously submitted by the parties were considered by the undersigned and are addressed in the appendix to this order.

FINDINGS OF FACT

The parties stipulated to findings of fact set forth in paragraphs 1.-8., below.

Stipulated Facts

1. Respondent has documented contamination from the abandoned petroleum storage system.

   
   

2. The abandoned petroleum storage system has been properly closed.

   
   

3. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), Florida Administrative Code, which was postmarked on or before June 30, 1992.

   
   

4. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes.

5. This site is not owned or operated by the federal government.

   
   

6. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes.

   
   

7. Respondent was not denied access to this site.

   
   

8. Petroleum contamination was not discovered after the application deadline of June 30, 1992.

   
   

   Additional Facts

   
   

9. Petitioner, a Florida corporation, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida.

   
   

10. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985.

    
    

11. Prior to Petitioner's assumption of title to the property in the early 1970's, Thomas had installed four petroleum storage systems in a four tank pit on the property. Thomas later registered all four of the tanks with Respondent by the statutory deadline of December 31, 1984, as required by Florida law. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner.

    
    

12. Sometime in the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank.

    
    

13. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance.

    
    

14. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991, by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida.

15. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered.

    
    

16. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. A 20 foot soil boring as near as possible to the site of the southernmost tank revealed that unacceptable levels of contamination extended to that depth.

    
    

17. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. The hole discovered in one of the tanks at the time of removal was likely located in the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank.

    
    

18. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed.

    
    

19. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991.

    
    

20. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991). Respondent held Petitioner's application for a total of almost nineteen months before issuance of a formal decision to deny the application on February 26, 1993.

    
    

21. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason:

    
    

    Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section

    17-769.800(3)(a), Florida Administrative Code.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.56(2), Florida Statutes.

    
    

23. The burden of proof in this proceeding is upon the Petitioner. See Adam Smith Enters. v. Department of Envtl. Regulation, 553 So. 2d 1260 (Fla. 1st DCA 1990); and Agrico Chemical Co. v. Department of Envtl. Regulation, 365 So. 2d 759 (Fla. 1st DCA 1979).

    
    

24. Section 120.56(1), Florida Statutes, states:

    
    

    Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    
    

25. Section 120.52(8), Florida Statutes, states:

    
    

    "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

    
    

    1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

    3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

    4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    5. The rule is arbitrary or capricious.

       
       

26. The relevant statutory provisions that govern the ATRP are found in Section 376.305(7), Florida Statutes. Since the law extant at the time of submission of Petitioner's application was the 1991 version of that statute, the provisions of Section 376.305(7), Florida Statutes (1991), govern this matter. Applicability of the 1991 version of the statute is further demonstrated in view of the apparently dilatory action of Respondent in failing to act officially on Petitioner's application for more than 18 months after initial receipt until the enactment of legislative changes, inclusive of the repeal of Subsection 376.305(7)(f), Florida Statutes (1991). This now repealed statutory provision granted a substantive right to applicants such as Petitioner by affording them an avenue for participation in the ATRP.

27. Accordingly, Petitioner's challenge to Rule 17-769.800(3)(a), Florida Administrative Code (1993), based upon provisions of Section 376.305(7), Florida Statutes (1993), is not applicable, is deemed moot, and will not be further addressed.

1. Pertinent portions of Section 376.305(7), Florida Statutes (1991), provide:

   
   

   1. For purposes of this section, the term "abandoned petroleum storage system" shall mean any petroleum storage system that has not stored petroleum products for consumption, use, or sales after March 1, 1990, and:

      1. Was not required to be registered with the department when the system was in service;

      2. Was registered by a previous owner who is not the current owner or operator; or

      3. Was placed out of service after December 31, 1988, due to the responsible person's decision not to continue in business at that site for storing petroleum products for consumption, use or sale.

      * * *

   2. The department shall establish the Abandoned Tank Restoration Program to facilitate the restoration of sites contaminated by abandoned petroleum storage systems under the restoration program of the Petroleum Liability Insurance and Restoration Program in s. 376.3072. To be included in the Abandoned Tank Restoration Program, the responsible person must close the storage tank system in accordance with rules adopted pursuant to s. 376.303, and shall submit an application to the department on forms supplied by the department, by June 30, 1992, demonstrating that:

      1. The abandoned storage system was placed out of service due to the responsible person's decision not to continue in business; and

      2. The site with the abandoned petroleum storage system is not otherwise eligible for cleanup pursuant to s. 376.3071(9) or s. 376.3072.

      * * *

      (f) Notwithstanding other criteria set forth in this section, any petroleum storage system that was not required to be registered with

      the department when such system was in service, was purchased by the current owner after the system was abandoned, was never returned to service, and is not otherwise eligible for cleanup pursuant to s.

      376.3071(9) or s. 376.3072 is eligible for the Abandoned Tank Restoration Program.

2. The following provisions of Respondent's Rule 17

   Florida Administrative Code (1991), at issue in this proceeding, read as follows:

   
   

   1. Eligibility of the Abandoned Tank Restoration Program.

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

   1. No longer be in business at that site for storing petroleum products for consumption,

      use or sale and the petroleum storage system is closed;

   2. Have documented contamination from the abandoned petroleum storage system;

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

   
   

3. Petitioner is challenging Rule 17-769.800(3)(a), Florida Administrative Code (1991), on the basis that it is an invalid exercise of delegated legislative authority because it applies the statutory March 1, 1990 deadline to the site of an abandoned petroleum storage system rather than to the abandoned petroleum storage system, itself.

   
   

4. Respondent properly notes that a cardinal rule of statutory construction requires that the entire statute under consideration be viewed as a whole, in pari materia, and effect be given to each provision under construction and every part of the statute as a whole.

   
   

5. When such a review is performed and the noted rule provisions are compared with the pertinent statutory provisions, it is apparent that the rule adequately explicates agency policy with regard to Subsections 376.305(7)(b)- (c), Florida Statutes (1991). There is nothing illogical or inconsistent between what is authorized by these two subsections and what is stated within the challenged rule. The legislative purpose, as codified in Subsection 376.305(7)(c), Florida Statutes 1991, that the primary function of the ATRP is to facilitate the restoration of sites contaminated by abandoned petroleum storage systems, is met with regard to applicants considered for the program pursuant to those statutory provisions and supporting rules.

   
   

6. Equally apparent is that the challenged rule as promulugated in the 1991 version also totally ignores provisions of Subsection 376.305(7)(f), Florida Statutes (1991). As result of the failure of the rule to address provisions of Subsection 376.305(7)(f), Florida Statutes (1991), two choices are available. The less palatable choice is that the rule contravenes provisions of Subsection (f) and is therefore an invalid exercise of delegated legislative authority. Such a solution does not comport with the deference to be accorded the well established principle that contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight. PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988).

7. The appropriate choice is that the rule is valid insofar as it purports to promulugate the agency policy with regard to statutory authority contained in Subsections 376.305(7)(b)-(c), Florida Statutes (1991), and that the rule is not applicable to applicants for ATRP participation under the auspices of Subsection 376.305(7)(f), Florida Statutes (1991). Contrary to Petitioner's assertions, Respondent's misapplication of its rules does not repeal those rules. Rather, the rule's misapplication is more appropriately treated in the context of an administrative proceeding conducted in accordance with Section 120.57(1), Florida Statutes, in which a recommended order is issued. The parties are referred to the companion recommended order issued in DOAH Case No. 93-2658.

   
   

8. The subject rule remains a valid exercise of delegated legislative authority with regard to its application to those ATRP applicants who do not qualify for consideration pursuant to provisions of Subsection 376.305(7)(f), Florida Statutes (1991).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner's rule challenge is dismissed.

DONE AND ORDERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 93-2821RX

The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties:

Petitioner's Proposed Findings.

1.-17. Adopted in substance, but not verbatim. 18.-19. Rejected, relevance.

20.-24. Adopted in substance, but not verbatim.

Respondent's Proposed Findings.

1. Rejected, not supported by weight of the evidence.

2. Rejected, not supported by weight of the evidence with regard to Rule 17-769.800(3)(a), Florida Administrative Code (1991). Not relevant with regard to Rule 17-769.800(3)(a), Florida Administrative Code (1993).

COPIES FURNISHED:

Melissa Fletcher Allaman Attorney at Law

Post Office Drawer 1170 Tallahassee, Florida 32302

Jefferson M. Braswell Lisa M. Duchene

W. Douglas Beason Assistants General Counsel

State of Florida, Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-130

Kenneth Plante General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell Secretary

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT ORDER DISMISSING APPEAL

=================================================================

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Florida 32399

Telephone No. (904)488-6151

April 19, 1994

CASE NO: 94-00719

L.T. CASE NO. 93-2821RX

Jones Management v. State, Department of Corporation Environmental Protection

Appellant(s), Appellee(s).

BY ORDER OF THE COURT:

Appeal dismissed pursuant to Rule 9.350(b), Fla.R.App.P.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

JON S. WHEELER, CLERK

By: Deputy Clerk

Copies:

Melissa Fletcher Allaman Elizabeth Fletcher Duffy Jefferson Braswell

Lisa M. Duchene Deanna Hartford

Docket for Case No: 93-002821RX

Orders for Case No: 93-002821RX