STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL HALFACRE CONSTRUCTION COMPANY ) INC., DEP Facility No. 588520719 )

)

Petitioner, )

)

vs. ) CASE NO. 93-7088

) OGC CASE NO. 93-1021

STATE OF FLORIDA DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration before the undersigned on Respondent Department of Environmental Protection's (Department) Motion For Summary Recommended Order. The motion was heard by telephonic hearing on March 24, 1994. The Petitioner was represented by its president, John F. Cox and the Respondent was represented by its attorney, W. Douglas Beason. At the conclusion of the hearing , Mr. Cox was advised that a similar case had been heard earlier by the undersigned and that the resolution of that case would have a significant impact on the resolution in this case. The Mr. Cox was further advised that upon the earlier case being decided, he would be furnished a copy and given a time certain for any further response to the motion. By letter dated April 18, 1994, the undersigned furnished Mr. Cox with a copy of the Recommended Order in Parr and Homer vs. Department of Environmental Protection, Case No. 93- 6555 and advised Mr. Cox that he would have until 5:00 p.m. on May 11, 1994, to file any further response to the Department's motion. Additionally, Mr. Cox was advised that failure to timely respond would result in the undersigned assuming that he would make no further response and the undersigned would rule on the motion. Mr. Cox made no further response to the motion after the letter of April 18, 1994.

The facts are not in dispute, and are as follows: (1) sometime before February 26, 1993, the Petitioner submitted an application for eligibility for Restoration Coverage under the Abandon Tank Restoration Program (ATRP) to the Department; (2) by letter dated February 26, 1992, the Department advised the Petitioner that, based on the information furnished to the Department, the Petitioner's petroleum storage system (facility) had been determined to be ineligible for participation in the ATRP on the basis that the Petitioner's facility had stored petroleum products for consumption, use or sale after March 1, 1990, citing Rule 17-769.800(3)(a), Florida Administrative Code; (3) the Petitioner has admitted that its facility had stored petroleum products for consumption, use, or sale subsequent to March 1, 1990; and (4) by letter dated March 19, 1993, the Petitioner advised the Department that it was not aware of the ATRP until June, 1990, had spent a considerable sum of money to remove the tank and the contaminated soil, were expecting help from the ATRP to defray the cost, and requested a waiver of 4 months to July 1990, in order to be eligible for Restoration Coverage under the ATRP.

To be eligible for the ATRP, Section 376.305(7)(a), Florida Statutes, requires, among other things, that an application be submitted to the Department by June 30, 1992, certifying that the system had not stored petroleum products for consumption, use or sale at the facility since March 1, 1990. The Department has interpreted the deadline of March 1, 1990, set forth in Section 376.305(7)(a), Florida Statutes, and its Rule 17-769.800(3), Florida Administrative Code, as a mandatory requirement for eligibility for Restoration Coverage under the ATRP which cannot be waived or extended under any circumstance. See; Parr and Homer v. Department of Environmental Protection, Recommended Order, Case Number 93-6555, Final Order, May 24, 1994.

Therefore, it is, RECOMMENDED:

That the Department enter a final order denying Petitioner's application for Restoration Coverage under the Abandoned Tank Restoration Program.

RECOMMENDED this 22nd day of June, 1994, at Tallahassee, Florida.

WILLIAM R. CAVE

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 22nd day June, 1994.

COPIES FURNISHED:

John F. Cox, President

Bill Halfacre Construction Co. Inc. 1701 DeSoto Road

Sarasota, Florida 34234

W. Douglas Beason, Esquire Department of Environmental

Protection

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental

Protection

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, General Counsel Department of Environmental

Protection

Twin Towers Office Building 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 of Dismissal. 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 of Dismissal. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-007088

Orders for Case No: 93-007088