STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Petitioner, )
)
vs. ) Case No. 02-3525
)
SOUTHEASTERN LIQUID )
ANALYZERS, INC., )
)
Respondent. )
_ )
RECOMMENDED ORDER
Notice was given and on August 12-14, 2003, a final hearing was held in this case. Pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes, the final hearing was conducted by Administrative Law Judge, Charles A. Stampelos, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Martha N. Hertzberg, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
For Respondent: Melvin L. Roberts, Esquire
Qualified Representative Roberts & D'Agostino Post Office Box 460
York, South Carolina 29745
STATEMENT OF THE ISSUE
Whether the Department of Environmental Protection (Department) proved by clear and convincing evidence that Southeastern Liquid Analyzers, Inc.'s (SELA) 1994 equipment approval for its Tank Chek Statistical Inventory Reconciliation (SIR) method should be revoked?
PRELIMINARY STATEMENT
By letter dated April 18, 2001, the Department notified SELA that its equipment approval for SELA's Tank Chek SIR method was being revoked. The Department sought to revoke the equipment approval because "[t]he Tank Chek algorithm has not been evaluated by a Nationally Recognized Laboratory, has not been verified that it works as designed by a third party laboratory, and has not been certified that it meets the performance standards in Rule 62-761.640, Florida Administrative Code, [sic] (1998)(F.A.C.), as required by Rule 62-761.850(2), F.A.C."
SELA contested the Department's decision to revoke the equipment approval and requested a hearing. An Amended Petition for Administrative Hearing was filed on December 6, 2001, and the matter was referred to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge (ALJ) to conduct a hearing.
SELA requested that Melvin L. Roberts, Esquire, appear as its Qualified Representative. The request was granted.
On October 25, 2002, the Department filed a motion requesting that jurisdiction be relinquished to the Department. SELA filed a response. A hearing was held on the motion on November 8, 2002, and the motion was denied by Order dated November 12, 2002.
On or about July 29, 2003, SELA filed a motion to re-align the parties and to establish which party had the burden of proof in this proceeding. A hearing was held on the motion on
August 7, 2003. By Order dated August 7, 2003, it was determined that "in light of the Department's April 18, 2001, [letter] advising of its intent to revoke the 1994 'equipment approval for Tankcheck SIR'," the parties were re-aligned and the Department had the burden of proof in this proceeding and that the standard of proof would be determined in the recommended order.
The parties were unable to agree to a pre-hearing stipulation and each party filed a separate pre-hearing statement.
After granting several continuances, the final hearing was held on August 12-14, 2003, in Tallahassee, Florida.
The Department presented the testimony of five witnesses: Marshall T. Mott-Smith, Environmental Administrator, Storage Tank Regulation Section, Bureau of Petroleum Storage Systems,
Department of Environmental Protection; Farid Moghadam, Engineer III, Storage Tank Regulation Section, Bureau of Petroleum Storage Systems, Department of Environmental Protection;
Marcel Moreau, of Marcel Moreau & Associates; Jonathan Reeder, Environmental Specialist II, Tank Section, Southwest District Florida Department of Environmental Protection; and
Ernest Roggelin, Environmental Manager, Environmental Engineering Division, Storage Tank Program, Pinellas County Health Department. SELA examined Department witnesses, but did not call any witnesses.
The Department's Exhibits 1, 2 (pages VII and EPA logo page and 13-20), 3, 4, 5, 7, 8, 11a, 11b, 11c, 11d, 12a, 12b, 12d
(pages 12-14 and 25-27), 13b, 14, and 22 were admitted into evidence. The Department's Exhibits 15-21 were admitted into evidence and official recognition taken. Joint Exhibit 1, a stipulation of facts,1 and SELA's Exhibit 1, were admitted into evidence. (Transcript, pp. 620-621.)
During the final hearing, the parties agreed that after the issuance of the final order, all SELA software in the possession of the Department and its agents shall be returned to SELA and any information derived therefrom shall be deleted from
Mr. Moreau's computer. (Transcript, pp. 430-431.)
The four-volume Transcript of the final hearing was filed with DOAH on September 17, 2003.
After unopposed extensions of time were granted, the parties filed proposed recommended orders which have been considered in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
SELA
Southeastern Liquid Analyzers, Inc., is a vendor of Tank Chek, a computer program that conducts Statistical Inventory Reconciliation for petroleum storage tanks. The vice president of SELA is David L. Roberts. SIR is a method of release or leak detection for petroleum storage tank systems. In 1994, the Department approved SELA's Tank Chek SIR method (equipment) for use in the State of Florida.
The Department
The Department has the statutory authority to establish rules to implement the storage tank regulation program.
See § 376.303(1)(a), Fla. Stat.
Regulated storage tank systems are required to use a method or combination of release detection that meet the applicable performance standards in Florida Administrative Code Rule 62-761.640 (1998). Fla. Admin. Code R. 62-761.610 (1998).
Storage tank system equipment that does not have approval from the Department can still be sold in Florida, but
purchasers cannot use that equipment to comply with Department rules.
Owners of non-regulated tanks do not have to use approved storage tank system equipment because they are not obligated to comply with Department rules. Only aboveground storage tank systems having individual storage tank capacities greater than 550 gallons, and underground storage tank systems having individual storage tank capacities greater than 110 gallons, are regulated by the Department. See Fla. Admin. Code R. 62-761.100(1) (1998).
As a release detection methodology, the SIR computer program or method is a piece of release detection equipment that is subject to equipment approval pursuant to Florida Administrative Code Rule 62-761.850(2) (1998), as it was in 1994 when the Department approved SELA's Tank Chek SIR method. See Rule 17-761.860 (1992).
Pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) (1998), "[e]quipment approval requests shall be submitted to the Department with a demonstration that the equipment will provide equivalent protection or meet the appropriate performance standards contained in this chapter." "A third-party demonstration by a Nationally Recognized Laboratory shall be submitted to the Department with the application. The third-party demonstration shall provide: 1. A
technical evaluation of the equipment; 2. Test results that verify that the equipment will function as designed; and 3. A professional certification that the equipment meets the performance standards contained in Rule 62-761.500, F.A.C." Fla. Admin. Code R. 62-761.850(2)(c)1.-3. (1998).
The function of a third-party evaluation is to verify the accuracy of the performance of a particular piece of release detection equipment in light of the performance standards.
The Department does not make exceptions to the requirement that all equipment used by owners and operators of regulated storage tanks in the State of Florida must be approved unless expressly excepted by rule. See Fla. Admin. Code R. 62- 761.850(2) (1998). Compare Rule 17-761.860 (1992).
The Department does not have the discretion, however, to deny a request for equipment approval if the applicant satisfies all of the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). Once a vendor has met the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), the equipment is approved and designated on a list maintained by the Department and updated quarterly.
Marshall Mott-Smith testified that permits are not issued for equipment approvals, and the approvals are not viewed as a permit. Mr. Mott-Smith testified that the Department does
not write any permits for storage tank systems, nor does the Department view an equipment approval as a license.
The Department, however, can and does place conditions on equipment approvals. For example, the Department's 1994 SELA equipment approval Order required the installation of at least two monitoring wells at any facility using the SELA system for release detection.
Equipment approvals can be and have been revoked. One of the reasons that equipment approvals have been revoked is because the equipment no longer meets the performance standards in the rule.
SELA's PetroWorks Evaluation of SELA's Tank Chek SIR Method
In 1993, SELA sought equipment approval from the Department of Environmental Protection Bureau of Petroleum Storage Systems (BPSS) pursuant to Rule 17-761.860 (1992), for SELA's Tank Chek SIR method.
As part of its request for equipment approval, SELA submitted a third-party evaluation, dated June 3, 1993, of its SIR method. SELA has not submitted to the Department any other third-party evaluation of its SIR method.
The third-party evaluation was conducted by Wayne E. Hill of PetroWorks. In 1993, at the time of the third-party evaluation, PetroWorks was a Nationally Recognized Laboratory.
The 1993 PetroWorks evaluation verified that SELA's Tank Chek SIR method met the performance standard of the existing rule (1992) and that it "works as it was designed by a third party."2
The 1992 and 1994 versions of the underground storage tank systems rules contained a general release detection performance standard applicable to storage tanks that required that release detection methods demonstrate that the method can detect a "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05." Rule 17-761.610(5) (1992); Rule 62-761.610(5) (1994). See also Rule 17-761.620(7) (1992); Rule 62-761.620(7) (1994).
The 1998 version remained substantially the same, although the term "leak rate" is omitted. See Fla. Admin. Code R. 62-761.640(1)(a) (1998)("(1) General. Method of release detection shall: (a) Be capable of detecting a release of 0.2 gallons per hour or 150 gallons within 30 days with a probability of detection of 0.95, and a probability of false alarm of 0.05.").3
The general leak detection performance standard of "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a
probability of false alarm of 0.05" was applicable to all release detection methods under Chapter 17-761 (1992).
SELA's 1993 PetroWorks evaluation concluded that the Tank Chek SIR method met the general release detection performance standard ("of 0.2 gallons per hour leak rate . . .") contained in Rule 17-761.610(5) (1992). The Department accepted this evaluation such that SELA's Tank Chek SIR method met the general leak detection performance standard as of the 1993 evaluation as evidenced by the Department's equipment approval Order dated January 21, 1994.
The 1993 PetroWorks evaluation submitted to the Department by SELA is on a form entitled "Results of U.S. EPA [Environmental Protection Agency] Standard Evaluation Statistical Inventory Reconciliation Method" and states explicitly that "[t]he evaluation was conducted by the vendor of the SIR method or a consultant to the vendor according to the
U.S. EPA's 'Standard Test Procedure for Evaluating Leak Detection Methods: Statistical Inventory Reconciliation Methods.'"
The State of Florida has not adopted the EPA protocol because the Department does not perform third-party evaluations of SIR release detection software. However, the Department accepts third-party evaluations that are run based on the EPA protocol.
The EPA Protocol was developed in response to the varied performance of leak detection methods.4 The EPA wanted to have leak detection methodologies that could be relied upon by tank owners to accurately detect leaks. The EPA published these "tests" (the protocols) that manufacturers of leak detection equipment must meet in order to sell their equipment, e.g., to a regulated owner or operator of an underground storage tank. The instructions in the EPA Protocol for SIR formed the basis for performing third-party evaluations.
The three-page "SIR Method Results Form" indicates that PetroWorks evaluated SELA's "Statistically based proprietary method." This Form provides:
This statistical inventory reconciliation method reports on the following basis (check one):
[actual box displayed] quantitative results (leak rate reported)
X [actual box displayed] qualitative results (pass, fail, inconclusive)
Test results are reported and the Form further provides: "Based on these results, the method X [actual box displayed] does [actual box displayed] does not meet the federal performance standards established by the U.S. Environmental Protection Agency of 0.10 and 0.20 gallon per hour at P(D) of 95% and P(FA) of 5%." (Emphasis in original.)
A three-page "Description Statistical Inventory Reconciliation Method" document is included as part of the PetroWorks evaluation. On page two under the heading "Identification of Causes for Discrepancies," the question is asked: "Which of the following effects does the method identify and quantify." Among other items, "leak rate" is a factor "identified and quantified by running a series of additional reports." On page three and under the heading "Reporting of Leak Status," the response "no" is given in response to the question, "Is the leak status reported in terms of a leak rate (e.g., gal/h or gal/day)?" The explanation for this response is: "Qualitative (Tight/Leaking/Inconclusive)." ("Tight/Leaking/Inconclusive" corresponds to "Pass/Fail/Inconclusive.")
A "Reporting Form for Test Results" is included with the PetroWorks evaluation. There are 1 through 120 record numbers with a "Submitted" "Induced Leak Rate (gal/h)" heading for a vertical column. (The numbers listed vertically are either "0" or "0.1.")
"The Results Reported by Vendor" are stated under two categories: (1) "If Quantitative," and below with two separate vertical columns identified as "Estimated Leak Rate (gal/h)" and "Est. Ind. Leak Rate (gal/h)" and (2) a separate category with one vertical column identified as "If Qualitative (Tank Tight?
(Yes, No, or Inconclusive)." Only the "If Qualitative" vertical column is completed with "yes" or "no" responses. The data table for the two "If Quantitative" columns is blank.
PetroWorks did not evaluate SELA's SIR method for leak rates.
The 1993 PetroWorks evaluation described above certified that SELA's SIR method complied with the performance standard of Chapter 17-761 (1992), i.e., that the SELA Tank Chek SIR method is capable of reporting qualitative results such as "pass," "fail," and "inconclusive," and detecting a "0.2 gallon per hour leak rate."
The Department's 1994 Approval of SELA's SIR Method
The Department approved SELA's Tank Chek SIR Analysis System (method) on January 21, 1994, in an Order entitled "APPROVAL OF STORAGE TANK SYSTEM AND RELEASE DETECTION EQUIPMENT." The Department found, in part: "Based on the information provided by Warren [ ] Southeastern Liquid Analyzers, Inc., the Department finds that the applicant's Tank Chek Statistical Inventory Reconciliation Analysis System is comparable to an automatic tank gauging system and will provide environmental protection substantially equivalent to that provided by compliance with the requirements established in Florida Administrative Code Rule, [sic] 17-761.640(6)." See Findings of Fact 18 and 19 for a discussion of the slight
differences in the wording of the "0.2 gallon per hour leak rate" performance standard. See also Endnote 3.
The Department Re-examines Prior Release Detection Equipment Approvals
In 1994 and 1996, the Department made minor revisions to the underground storage tank systems rules and Chapter 17-761 became Chapter 62-761.
Effective July 13, 1998, the Department adopted revisions to Chapter 62-761, Florida Administrative
Code ("Petroleum Storage Systems") which are detailed below. See also Findings of Fact 3-10 and 47-61.
Beginning around December 30, 1999, Department personnel began a dialogue (by e-mail) relating to the requirements of the July 13, 1998, revisions. The participants included Jonathan Reeder and Farid Moghadam for the Department, and David L. Roberts for SELA. (Other persons at the Department including the Office of General Counsel, participated in the discussions.)
Mr. Reeder requested guidance from Mr. Moghadam as follows:
There seems to be a fundamental conflict between the 7/13/98 Rule requirements for SIR value and data reporting and the qualitative SIR method's ability to provide those values. Specifically, Rule 62-761.640(3)(c)3., F.A.C., requires that the data set leak threshold, the minimum detectable leak rate, and the calculated leak rate be reported.
However, the SIR qualitative method will only
produce a Pass, Fail, or Inconclusive result. My question is as follows:
Does the above situation effectively rescind the approval status of the SIR qualitative methods?
This "anomaly" affects those vendors that have approved qualitative SIR methods.
Specifically:
Entropy Limited, EQ-018
Horner Products, SIR Pro 1, Versions 1.0 and 2.0, EQ-126
Syscorp, Inc., EQ-179
South Eastern Liquid Analyzers, Inc., EQ- 157
Ustman Industries, YES SIR 90, EQ-065
I do know that South Eastern Liquid Analyzers is quite active in Florida as I have seen their reports and have, in fact, discussed this problem with David Roberts, the owner.
I guess the real question here is "Can we make a new Rule that specifically excludes previously approved equipment?" Maybe we would need to get OGC's comments?
This e-mail was sent to Mr. Moghadam on December 30, 1999, after Mr. Reeder had a phone conversation with Mr. Roberts. It was also sent to Mr. Roberts.
On May 12, 2000, Mr. Roberts sent an e-mail to
Mr. Reeder with the following message: "I understand from Curt Johnson that I need to talk with you about SIR evaluation list. I have several issues to be resolved to be included [sic]. I would like to see if I can work with you to resolve them. What happened with the questions in FL? For SC, I have added the
leak rates per John Kneece's instructions. I have providing [sic] in FL as well for your regulators."
On May 12, 2000, Mr. Reeder sent an e-mail to Mr. Roberts and stated:
To resolve the issues in Florida you will need to submit a third-party evaluation for a QUANTITATIVE method to Farid Moghadam at our Tallahassee office. His phone number is (850) 921-9007. Since this third-party QUANTITATIVE method would initially be routed through me via the NWGLDE it most likely would also address the past issues of the Work Group. I have not seen the file on your Method but Curt is sending it to me via post.
If you have any questions you may call either myself or Farid.
I will be in Daytona Beach the week of the 15th for our annual DEP Tanks meeting, returning on May 22, 2000.
On May 15, 2000, Mr. Roberts responded: "I do not have a third party on the quantitative method. My third party is for qualitative. We discussed this in regard to Florida. You were talking to the legal department about my being an approved vendor and then the state changed to quantitative at a later date and how you are going to handle it. The work group is a separate issue. . . ." (Emphasis added.)
On May 22, 2000, Mr. Reeder responded to Mr. Roberts:
I discussed this situation with our Office of General Council (sic) and the Tallahassee Engineering Department during our Conference last week. It is a consensus opinion that the SIR Qualitative Method does not meet the requirements of Florida Rule 62-761-640,
F.A.C., and therefore any Facility that uses it as a method of Release Detection is in violation of Rule 62-761.610(1)(a), F.A.C.
A letter is being sent from our Tallahassee office to the five vendors that currently have Florida approved Qualitative SIR Methods. This letter will basically state the above position and require that either the vendor "upgrade" their SIR method to that of Quantitative or have their Florida equipment approval revoked. This new Rule has been in effect since July 13, 1998 which is ample time for all SIR vendors to make the necessary adjustments to their methods in order to comply with the new requirements.
Additionally, any Facility that continues to use the Qualitative method will be cited for using a Release Detection Method that does not meet the Florida Rule requirements.
If you choose to comply with the Florida requirements and have your method third-party evaluated as Quantitative then that would most likely address the past concerns of the Work Group - - mainly the data set problem.
However, if you elect to cease doing business in Florida and still desire to have your Qualitative Method listed we can then discuss the items needed to reopen the review process.
Please let me know what you wish to do and if you would like to discuss this with Farid in Tallahassee his number is (850) 921-9007.
From 1993 until the effective date of the 1998 amendments to Chapter 62-761, Florida Administrative Code, SELA complied with the performance standard in the rules. See Findings of Fact 17 and 21. After Chapter 62-761 was amended in 1998, Department employee Farid Moghadam was told to evaluate all SIR methods being used in the State of Florida to determine
whether they were in compliance with the new performance standards. (Some of the recorded dialogue among Department employees and Mr. Roberts is recited above which led to the Department's decision to revoke SELA's equipment approval.)
Mr. Moghadam evaluated the already-approved SIR methods by reviewing the third-party evaluations that had been submitted as part of the original application for equipment approval for each SIR method. Mr. Moghadam discovered that at the time of the 1998 amendments to Chapter 62-761, there were 15 SIR methods approved in the State of Florida and each appeared on the Department's approved equipment list. (SELA's SIR method remains on this approved list.) Ten of the approved SIR methods were a quantitative SIR methodology, and five were a qualitative SIR methodology. All 15 of the SIR methods had previously submitted a third-party evaluation.
Among the five SIR programs that were qualitative, three of the SIR vendors voluntarily reapplied for equipment approval. All three of these programs were re-approved. One of the SIR vendors requested that the Department rescind its prior order approving the SIR method, thereby requesting that the SIR method be removed from the approved equipment list. Only SELA continued to require a new third-party evaluation as determined by Mr. Moghadam.
Mr. Moghadam determined that SELA's Tank Chek SIR method required a new third-party evaluation because the previously submitted PetroWorks evaluation did not indicate that SELA met the performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), as required by Florida Administrative Code Rule 62-761.850(2) (1998).
Chapter 62-761, Florida Administrative Code (1998), does not specify that previously-approved equipment required re- approval, re-certification, or re-evaluation. Because performance standards were added to Chapter 62-761 specific to SIR and because no previous versions of Chapter 62-761 contained any performance standards specific to SIR, the Department felt it was necessary to determine whether previously-approved equipment continued to satisfy the requirements of Florida Administrative Code Rule 62-761.850(2) (1998).
The issue in this case is not whether SELA's Tank Chek SIR method can produce and report the leak rates required pursuant to Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998), because the testimony and documentary evidence established that Tank Chek can produce leak rates in its reports. The issue in this case is whether SELA's Tank Chek SIR method must be re-evaluated by a third-party so that the Department can know that the leak rates that are produced and reported are
accurate and reliable. See Fla. Admin. Code R. 62-761.850(2)(b) and (c).
SELA declined to obtain a new third-party evaluation.
As a result, the Department gave notice of its intent to revoke the SELA Tank Chek SIR method equipment approval because, as of 1998, the Department no longer had a third-party evaluation certifying that SELA's Tank Chek SIR method complied with the performance standards in Chapter 62-761, Florida Administrative Code.
Other than the PetroWorks evaluation of SELA's SIR method performed in 1993, SELA has not provided the Department with another third-party evaluation.
On April 18, 2001, the Department advised Mr. Roberts
as follows:
The Bureau of Petroleum Storage Systems
has reviewed the information submitted February 1, 16 and 20, 2001, regarding the Tankcheck Statistical Inventory Reconciliation (SIR) equipment approval order, DEP File Number EQ-157 dated January 21, 1994. The Tankcheck SIR algorithm has not been evaluated by a Nationally Recognized Laboratory, has not
been verified that it works as designed by a third party laboratory, and has not been certified that it meets the performance standards in Rule 62-761.640, Florida Administrative Code, (1998) (F.A.C.), as required by Rule 62-761.850(2), F.A.C. Therefore, the equipment approval for Tankcheck SIR, DEP File No. EQ-157 is revoked and is no longer in effect.
As of the effective date of this order, you must remove all references to the State of Florida and/or Department of Environmental Protection approval from any and all marketing materials distributed in the State of Florida regarding the use of Tankcheck SIR for storage tank systems regulated by the State of Florida.
SELA filed a timely challenge to this Department action. The Department Amends Chapter 62-761 in 1998
Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically enumerated "performance standards" for SIR. The general leak detection standard of "0.2 gallon per hour" was the only release detection performance standard applicable to SIR under Chapter 17-761 (1992). See Finding of Fact 18.
Department witnesses testified that, from an inspection standpoint, a SIR methodology that met only the "0.2 gallon per hour" general performance standard would not be in compliance with Florida Administrative Code Rule 62- 761.640(3)(c)3. (1998), but would have been in compliance with Rule 17-761.610(5) (1992).
In 1998, the Department amended Chapter 62-761 (1994), formerly Chapter 17-761 (1992), substantially revising this Chapter, including for the first time, at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), performance standards specific to SIR. The general release detection standard set forth in, e.g., Rule 62-761.610(5) (1994) (formerly Rule 17-
761.610(5) (1992)), see Finding of Fact 18, was subsumed by Florida Administrative Code Rule 62-761.640(1)(a) (1998).
Under the 1998 revised rules, the general leak detection standard of "0.2 gallons per hour" was retained in the rule in Florida Administrative Code Rule 61-761.640(1)(a) (1998), and remained applicable to all release detection methods including SIR.
The SIR-specific performance standards are intended to limit use of SIR to quantitative SIR methods only and to eliminate the use of qualitative SIR methods in Florida.
Marshall Mott-Smith, the Department's Environmental Administrator, Storage Tank Regulation Section, Bureau of Petroleum Storage Systems, was instrumental in drafting the 1998 amendments to Chapter 62-761, and also recommended to the Department that the acceptance of either type of SIR methodology for use in Florida be changed. Mr. Mott-Smith testified that there was a need for the Department to address the type of SIR methodology because the Department was concerned that the current use of SIR in the State of Florida was not providing adequate protection for the groundwaters and the surface waters of the state. Field experience and discussion with experts indicated that qualitative SIR methods were not really working and were problematic.
There are two types of SIR methodology, qualitative and quantitative. The major distinction between a qualitative SIR and a quantitative SIR methodology is how the results produced by the SIR method are reported. The fact that a SIR method meets the general performance standard of "0.2 gallon per hour" does not indicate whether it is a qualitative or a quantitative method.
Third-parties evaluate the SIR method as either a qualitative or quantitative method. A qualitative SIR methodology produces release detection results identified as "pass," "fail," or "inconclusive." A SIR methodology that produces only "pass," "fail," and "inconclusive" results is not a quantitative SIR method.
A quantitative SIR methodology, in addition to "pass," "fail," or "inconclusive," will produce release detection results in terms of other values such as the leak threshold, the calculated leak rate, and the minimum detectable leak rate. The general performance standard ("0.2 gallon per hour") is a measurement that works in conjunction with other quantitative results, but it is not determinative of the type of SIR methodology.
Prior versions of the rule, including for example Chapter 17-761 (1992) and Chapter 62-761 (1994), allowed either a "qualitative" or a "quantitative" SIR methodology. In
contrast to the requirements of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), the previous versions of the rules did not specify that the SIR method had to produce any particular numeric results in order to be in compliance with the rule, only the "0.2 gallon per hour" general performance standard had to be satisfied. Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically identified SIR as a release detection method. SIR was indirectly referenced as "other similar release detection method." See Rule 17-761.610(5) (1992) and Rule 62-761.610(5) (1994).
The performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), do not specifically identify the SIR method as either a "qualitative" or "quantitative" SIR methodology. However, all of the Department witnesses persuasively testified that Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requires a "quantitative" SIR methodology. For, example, Mr. Reeder testified that the 1998 rule specifies a specific type of SIR method "in the sense that it requires the production of a leak rate, minimum detectable leak rate and threshold, because those are values that are only produced by a quantitative method and not a qualitative method. So, by that fact, it specifies that a quantitative method be used."5
Florida Administrative Code Rule 62-761.640 (1998), is entitled "Performance Standards for Release Detection Methods." Florida Administrative Code Rule 62-761.640(3)(c)3. (1998) provides, in part: "Statistical Inventory Reconciliation (SIR). SIR shall be conducted according to" requirements a. through i.
Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998) requires that the results of each monthly analysis for the SIR method "include the calculated results from the data set for leak threshold, the minimum detectable leak rate, the calculated leak rate, and a determination of whether the result was 'Pass,' 'Fail,' or 'Inconclusive.' For the purposes of this section, the 'leak threshold' is defined as the specific leak threshold of the SIR method approved in accordance with Rule 62- 761.850(2), F.A.C., to meet the release detection level specified in Rule 62-761-640(1)(a), F.A.C." These required reported values are performance standards.
A performance standard is something that determines the performance of the method; something that shows what the equipment is supposed to do. Prior versions of the rule, including specifically Chapter 17-761 (1992), did not require that if SIR was used as a leak detection methodology that the SIR method report these leak rates.
The requirement that the SIR methodology produce and report these leak rates, see Finding of Fact 59, as well as
"pass," "fail," and "inconclusive" results, are SIR-specific performance standards. The SIR performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requiring that these results be produced defines the required SIR methodology as a quantitative methodology.
Resolution of the Controversy
Notwithstanding the 1993 PetroWorks evaluation, the evidence presented during the final hearing demonstrates that SELA's Tank Chek SIR method is capable of producing quantitative calculated results from a data set for leak threshold, the minimum detectable leak rate, and the calculated leak rate. Stated otherwise, SELA's SIR method can produce and report these values that are required. However, even though SELA's Tank Chek SIR method can produce and report quantitative results, and necessarily these values, a new third-party evaluation is required pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) and (c) (1998), to demonstrate that SELA's Tank Chek SIR method complies with the performance standards of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998). Compare Fla. Admin. Code R. 62-761.640(3)(c)3.b. (1998) with Fla. Admin. Code R. 62-761.850(2)(b) and (c) (1998).
The problem with the quantitative results (leak threshold, the minimum detectable leak rate, and the calculated leak rate) SELA's Tank Chek SIR method produces in reports is
that it is not known whether those results are accurate or reliable. Determining whether the results produced by a particular SIR method are reliable is the purpose of a third- party evaluation.
As noted above, SELA has never had a third-party evaluation that demonstrates that Tank Chek SIR can reliably produce and report a leak threshold, a calculated leak rate, or a minimum detectable leak rate. SELA only has a third-party evaluation that demonstrates that its Tank Chek SIR method can detect a release of "0.2 gallon per hour," the general performance standard, and report the results as "pass," "fail," or "inconclusive." Importantly, the 1992 rules which applied when PetroWorks performed SELA's evaluation in 1993 did not require the production or reporting of leak rates; the rules required compliance only with the general performance standard of "0.2 gallon per hour." Fla. Admin. Code R. 17-761.610(5) (1992).
The problem with the leak rates reported on, for example, DEP Exhibit 4, the Seffner Food Stores SIR Historical Summary Report, is that the PetroWorks evaluation did not evaluate the SELA Tank Chek SIR method to accurately produce the numbers (leak rates) that are reported.
The 1993 PetroWorks evaluation specifically noted that the SIR method results are on the basis of "qualitative results
(pass, fail, inconclusive)" and not on "quantitative results (leak rate reported)." The 1993 PetroWorks evaluation specifically noted that the testing results are not reported in terms of a leak rate. See Findings of Fact 26-29.
The 1993 PetroWorks evaluation of SELA's Tank Chek SIR method did not and cannot have certified that Tank Chek meets the requirements of the 1998 rule as required for an equipment approval because the 1998 performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), were not included in Chapter 17-761 in 1993.
The 1993 Petroworks evaluation is no longer valid as it no longer satisfies the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), which is a prerequisite to an equipment approval. SELA needs a new equipment approval to comply with Florida Administrative Code Rule 62-761.850(2) (1998).
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Burden of Proof
In 1994, the Department approved SELA's request for the use of the Tank Chek SIR method for release detection in the State of Florida. "'License' means a franchise, permit, certification, registration, charter, or similar form of authorization required by law. . . ." § 120.52(9), Fla. Stat. "'Licensing' means the agency process respecting the issuance, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license or imposition of terms for the exercise of a license." § 120.52(10), Fla. Stat.
In order to revoke a license, an agency must serve the licensee with an administrative complaint. § 120.60(5), Fla. Stat.
It is uncertain whether the Department issued a "license" to SELA when it approved its equipment in 1994. Nevertheless, the Department, in its April 18, 2001, letter, sought to revoke the prior equipment approval. The Department's letter is comparable to, and is treated as, an "administrative complaint." See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); see also Fla. Admin. Code R. 28- 107.004(2) and (4).
Whether the standard of proof is by a preponderance of the evidence or clear and convincing is also uncertain. In light of this uncertainty, the higher burden is applied here.
Accordingly, the Department has the burden of proving by clear and convincing evidence that revocation of SELA's 1994 equipment approval is appropriate. See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("The general rule is, that as in court proceedings, the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.") See also Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); § 120.57(1)(j), Fla. Stat.
Department Authority to Regulate Petroleum Storage Systems
The storage of pollutants and hazardous substances "within the jurisdiction of the state and state waters is a hazardous undertaking." § 376.30(2)(a), Fla. Stat. Discharges of pollutants and hazardous substances "that occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products pose threats of great danger and damage to the environment of the state. . . ." § 376.30(2)(b), Fla. Stat. See also § 376.3071(1)(a)-(c), Fla. Stat.
The Department has the power and the duty to "[e]stablish rules, including, but not limited to, construction standards, permitting or registration of tanks, maintenance and installation standards, and removal or disposal standards, to
implement the intent of ss. 376.30-376.319 and to regulate underground and aboveground facilities and their onsite integral systems." § 376.303(1)(a), Fla. Stat.
Failure to comply with a rule adopted by the Department pursuant to its lawful authority is a violation and prohibited § 376.302(1)(b), Fla. Stat.
The Department has promulgated rules pertaining to the regulation of petroleum storage systems to implement Section 376.303, Florida Statutes. See, e.g., Fla. Admin. Code. R. 62- 761.100, et seq. (1998).
"Except for aboveground mineral acid storage tank systems, the purpose of [Chapter 62-761] is to provide standards for the registration, construction, installation, operation, maintenance, repair, closure, and disposal of storage tank systems that store regulated substances, and to minimize the occurrence and environmental risks of release and discharges. This chapter provides standards for underground storage tank systems having individual storage tank capacities greater than
110 gallons, and aboveground storage tank systems having individual storage tank capacities greater than 550 gallons." Fla. Admin. Code R. 62-761.100(1) (1998). An owner or operator of a regulated storage tank system must register with the Department. Fla. Admin. Code R. 62-761.400(1)(a) (1998).
Category-A and Category-B underground storage tanks are required to be equipped with one or more of several enumerated release detection systems including "[a] statistical inventory reconciliation system with a tightness test of the storage tank every three years." Fla. Admin. Code R. 62- 761.610(2)(f) (1998). See also Fla. Admin. Code R. 62-761.500-
510 (1998). See Endnote 5. The release detection method "shall meet the performance standards contained in Rule 62-761.640, F.A.C." Fla. Admin. Code R. 62-761.610(1)(a) (1998). See also
Fla. Admin. Code R. 62-761.610(1)(b) (1998) relating to Category-C systems.
Department rules require notification of the discovery of, for example, "[a] failed SIR evaluation, or inconclusive SIR evaluations as specified in Rule 62-761.640(3)(c)3., F.A.C., or a failed or inconclusive tightness, pressure, or breach of integrity test." Fla. Admin. Code R. 62-761.450(2)(a)1. (1998). Storage Tank System Leak Detection Equipment
A "storage tank system" is defined as "a tank used to contain regulated substances, its integral piping, and all its components, including dispensing systems, spill containment devices, overfill protection devices, secondary containment systems, and any associated release detection equipment." Fla. Admin. Code R. 62-761.200(79) (1998). (Emphasis added.) See also Rule 17-761.200(38) (1992).
As a release detection methodology, the SIR computer method is a piece of equipment that is subject to equipment approval pursuant to Florida Administrative Code Rule 62- 761.850(2) (1998), and was the subject of approval in 1994, Rule 17-761.860 (1992).
The equipment approval request must include a "demonstration that the equipment will provide equivalent protection or meet the appropriate performance standards contained in this chapter." Fla. Admin. Code R. 62- 761.850(2)(b) (1998). A third-party demonstration of the equipment by a Nationally Recognized Laboratory is required in order to successfully obtain equipment approval from the Department. Fla. Admin. Code R. 62-761.850(2)(c) (1998). This "demonstration shall provide: 1. A technical evaluation of the equipment; 2. Test results that verify that the equipment will function as designed; and 3. A professional certification that the equipment meets the performance standards contained in Rule 62-761.500, F.A.C." Id.
A review of the 1992 and 1994 versions of the storage tank system rules recited herein indicates that SIR was not specifically referenced as a release detection methodology. SIR was indirectly referenced as "other similar release detection method." Rule 17-761.610(5) (1992); Rule 62-761.610(5) (1994).
Also, under the 1992 and 1994 versions of these rules, either a "qualitative" or a "quantitative" SIR methodology was acceptable to comply with these rules, because no rule specified the numeric results that a SIR method must produce in order to be in compliance with the rule. See Rule 17-761.610(5) (1992) and Rule 61-761.610(5) (1994).
Although the 1992, 1994, and 1998 rules provide for the general release detection standard of "0.2 gallon per hour," neither Chapter 17-761 (1992), nor Chapter 62-761 (1994) contained performance standards specific to SIR. In 1998, the Department amended the rule adding performance standards specific to SIR at Florida Administrative Code Rule 62- 761.640(3)(c)3. (1998). See also Fla. Admin. Code R. 62- 761.600(1)(a)3. (1998); Fla. Admin. Code R. 62-761.610(2)(f) (1998).
Florida Administrative Code Rule 62-761.640(3)(c)3.b., (1998), requires that the results of the monthly analyses for the SIR method "include the calculated results from the data set for leak threshold, the minimum detectable leak rate, the calculated leak rate, and a determination of whether the result was 'Pass,' 'Fail,' or "Inconclusive.'" 6
The evidence established that a quantitative SIR methodology requires the production and reporting of leak rates. By definition, Florida Administrative Code Rule 62-
761.640(3)(c)3.b. (1998), allows only the "quantitative" SIR methodology to be used in Florida.
SELA argues that the equipment approval cannot be revoked because Chapter 62-761, Florida Administrative Code, does not expressly provide for revocation of SELA's equipment approval. On the other hand, no party disputes that the Department had the authority to approve SELA's SIR method in 1994.
"[A]dministrative bodies have no common law powers.
They are creatures of the Legislature and what powers they have are limited to the statutes that create them." State ex rel.
Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628, 636 (Fla. 1st DCA 1974)(citations omitted), cert. dismissed, 300 So. 2d 900 (Fla. 1974).
The storage of significant quantities of petroleum and petroleum products in underground storage tanks is declared to be a hazardous undertaking. §§ 376.30 and 376.3071, Fla. Stat. Discharges are to be detected and avoided. Id. Owners and operators of regulated facilities are required to establish and maintain evidence of financial responsibility to meet the liabilities which may be incurred under Sections 376.30-376.319, Florida Statutes. § 376.309(1), Fla. Stat. Elaborate release detection method rules have been promulgated many of which have been cited herein.
The remedies provided in Sections 376.30-376.319, Florida Statutes, are cumulative and not exclusive.
§ 376.313(1), Fla. Stat. For example, except as otherwise provided, any person can bring a cause of action for all damages resulting from a discharge covered by these sections. A showing of negligence is not required. § 376.313(3), Fla. Stat.
However, Subsection 376.313(3) does not apply if it can be proven, at the time of the discharge, that, in part, "[a] leak detection system or systems or a monitoring well or wells were installed and operating in a manner consistent with technical requirements of chapter 62-761, Florida Administrative Code, as that chapter may hereafter be amended." § 376.313(4)(b), Fla. Stat.
The Legislature gave the Department the express authority to regulate certain storage tanks and the authority to promulgate rules which would authorize the use of, for example, the SIR method of release detection equipment. The Legislature also contemplated amendments to Chapter 62-761, Florida Administrative Code.
There is no dispute that SELA obtained equipment approval for its Tank Chek SIR method pursuant to the 1992 rules and that the Tank Chek SIR method met the requirements of the rules at that time.
The issue in this case is not whether SELA's Tank Chek SIR method is capable of producing leak rates required by Florida Administrative Code Rule 62-761.640(3)(c)3. (1998). It is capable of producing a report with these values. The issue is whether SELA's 1993 PetroWorks evaluation remains valid after the 1998 amendments.
SELA no longer satisfies the requirements for an equipment approval pursuant to Florida Administrative Code Rule 62-761.850(2) (1998), because the PetroWorks evaluation did not and could not demonstrate or certify that the Tank Chek SIR method complies with the 1998 performance standards in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998).
It necessarily follows that owners and operators of regulated storage tanks may not use SELA's SIR method and comply with existing release detection method requirements. To allow non-conforming equipment to remain on a Department equipment approval list, which explicitly authorizes its use in the State of Florida by regulated storage tank owners and operators, is at odds with the legislative intent recited above and potentially exposes these persons to liability.
Given the nature and scope of the statutes recited herein and the nature and scope of a release detection method equipment approval in light of those statutes, the Department has the authority to revoke SELA's equipment approval. See
generally State Board of Education v. Nelson, 373 So. 2d 114 (Fla. 1st DCA 1979).7
The Department has shown by clear and convincing evidence that SELA does not comply with Florida Administrative Code Rule 62-761.850(2) (1998), that SELA's 1993 PetroWorks evaluation does not demonstrate SELA's compliance with the performance standards of Florida Administrative Code Rule 62- 761.640(3)(c)3. (1998), and that, therefore, the 1994 equipment approval should be revoked.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Environmental Protection enter a final order revoking SELA's 1994 equipment approval, EQ- 157, without prejudice to SELA submitting a new equipment approval application in compliance with Department rules.
DONE AND ENTERED this 20th day of January, 2004, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2004.
ENDNOTES
1/ The parties stipulated to the following facts:
In 1994, [SELA] Tank Chek Statistical Inventory Reconciliation (SIR) equipment was evaluated by Wayne Hill of Petroworks [sic] and received third party approval.
Wayne Hill and Petroworks [sic] in 1993 and 1994 were a nationally recognized laboratory.
The certification shows and verifies that SELA's Tank Chek SIR works as it was designed by a third party.
The State of Florida Department of Environmental Protection on January 21, 1994, by John M. Ruddell, Director issued an approval for storage tank system and release detection equipment to SELA for and authorized the use of Tank Chek SIR for release detection in the State of Florida.
2/ The underground storage tank systems rules, in 1993, were under Chapter 17-761 (1992), which contained a single performance standard for release detection methods at Rule 17- 761.610(5) (1992). See Finding of Fact 18.
3/ The Department, in its 1994 approval of SELA's SIR method, found that it "will provide environmental protection substantially equivalent to that provided by compliance with the requirements established in Florida Administrative Code Rule, [sic] 17-761.640(6)[1992]" which provided: "Automatic tank gauge systems shall be capable of detecting 0.2 gallons per hour leak rate with a probability of detection of 0.95 and a probability of false alarm of 0.05." See Finding of Fact 30.
4/ Marcel Moreau explained the problems associated with inventory control which led to the development of SIR and the EPA Protocol for SIR. He credibly explains:
Inventory control in the gasoline industry is keeping track of how much is in the underground storage tank to try and determine whether any is missing. And the basic procedure is to measure how much is in the underground storage tank, keep track of how much is delivered into that tank, how much is taken out, and that gives you -- allows you to calculate a number of how much is left in that underground storage tank, or how much ought to be in that tank.
And then you go out and physically measure how much is the tank and you compare what you predicted to be in there based on your measurements and what you actually find in the tank based on your physical measurement of the tank. And the differences in those two numbers I refer to as the variance. Typically these measurements are made on a daily basis, so that's the daily variance.
Now, measuring or determining the volume of product in underground storage tank is oftentimes done with nothing more sophisticated than an extra long ruler, about a 16-foot stick that is inserted into the underground storage tank, and you bring it back up and you see how far up the stick is wet, and that gives you a number of inches. And then you go to a piece of paper, which is a tank chart provided by the tank manufacturer, and you look up on the chart how many inches you have, and that tells you how many gallons. So that procedure, there's a lot of room for error in terms of reading the stick, going to the tank chart, having the proper chart, all that kind of stuff. So it's a measurement that includes a fair amount of error. The meters that dispense gasoline, which is how you measure how much you've sold, are accurate to about a half a percent, so there's an error incorporated into that measurement as well. The amount of product that's delivered into the tank is measured when it's put into the truck, but it's not measured when it's put into the underground storage tank, so there's a certain amount of error inherent in the delivery volume as well.
So when you put all those errors together, what happens is that your predicted amount in the tank based on the calculations is never the same as what's actually in the tank. However, a lot of these errors are measurement errors that are random, which means some days you're going to find more product in the tank than you think there ought to be, and some days there will be less product in the tank than you think there ought to be. So over a period of time, say 30 days, a month, if you add up your daily variances, these plusses and minuses are going to cancel out so that by the end of the month, your total variance at the end of the month is relatively small.
If you have a leak in the system, however, then you're going to tend to find less product in the tank than you think is there more often, and when you add up your daily variances, you're going to end up with a larger number, and that's your indication that there's a problem with the system. So that's how basic, ordinary inventory control works, and that's been standard in the industry since the industry existed, basically, for the last 75 years.
So the problem was that all of these errors and measurements would confuse the picture with inventory control so that at the end of the month, it was very hard for a person to say whether or not there's a problem. So about 1980, thereabouts, Warren Rogers set about -- who is a Ph.D. statistician -- set about to apply statistics to this problem of trying to figure out what was going on with inventory control, and he developed a method that he calls statistical inventory reconciliation to sort of see through some of all these measurement errors and get a better idea of whether or not there is, in fact, a leak as represented by the inventory records or not. So SIR is an additional layer of calculation or data analysis that is added on to the basic inventory control information.
5/ Florida Administrative Code Rule 62-761.600 (1998) provides for "Release Detection Standards." Florida Administrative Code Rule 62-761.600(1)(a)3. provides: "(1) General. (a) Storage
tank systems shall have a method or combination of methods, of release detection that:. . .3. Meets the applicable performance standards in Rule 62-761.640, F.A.C. . . . ." See also Fla.
Admin. Code R. 62-761.610(2)(f)(authorizing Category-A and Category-B underground storage tanks to be equipped with a SIR system (among other release detection systems) with a tightness test of the storage tank every three years.)
6/ All release detection devices are required to be tested annually to ensure proper operation. Inventory control must be performed for underground and aboveground storage tanks containing vehicular fuel that do not have secondary containment and one of several methods, including SIR in accordance with Florida Administrative Code Rule 62-761.640(3)(c)3, shall be used. Fla. Admin. Code R. 62-761.700(1)(c)3. and 6.b.
7/ Although there might be other reasonable interpretations, an agency's interpretation of a statute that it administers is entitled to great weight even if the agency's interpretation is one of several permissible interpretations. Doyle v. Department of Business Regulation, 794 So. 2d 686, 690 (Fla. 1st DCA 2001); State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 238, 241-242 (Fla. 1st DCA 1981). See
also Golfcrest Nursing Home v. State, Agency for Health Care Administration, 662 So. 2d 1330, 1333 (Fla. 1st DCA 1995). ("An agency's interpretation of its own rules and regulations is entitled to great weight, and shall not be overturned unless the interpretation is clearly erroneous.")
COPIES FURNISHED:
Martha N. Hertzberg, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Melvin L. Roberts, Esquire Roberts & D'Agostino
Post Office Box 460
York, South Carolina 29745
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 09, 2004 | Agency Final Order | |
| Jan. 20, 2004 | Recommended Order | Petitioner proved by clear and convincing evidence that Respondent`s Statistical Inventory Reconciliation method for release detection did not comply with Chapter 62-761, F.A.C., and, therefore, its 1994 equipment approval should be revoked. |
