STATE OF FLORIDA dh, fy al 5 DEPARTMENT OF ENVIRONMENTAL PROTECTION “#7 ed LEMKCO FLORIDA, INC., (/ q OMI ale Petitioner, © v. OGC Case No. 08-0646 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent. / FINAL ORDER This matter is before me for entry of a Final Order pursuant to sections 120.57(2), Florida Statutes, Rule 28-106, Part III, Florida Administrative Code (F .A.C.), and the Order Establishing Informal Proceeding dated February 11, 2009. The informal hearing in this matter was held on March 25, 2009, in accordance with the Notice of Hearing dated February 11, 2009. “APPEARANCES For Petitioner: Neither the Petitioner nor Counsel for Petitioner made an appearance. For Respondent: Janet Tashner, Senior Assistant General Counsel Florida Department of Environmental Protection 3900 Commonwealth Bivd., M.S. 35 Tallahassee, Florida 32399 STATEMENT OF THE CASE The issue to be decided is whether the remedies sought by the State of Florida Department of Environmental Protection (“Department”) in the Notice of Violation (“NOV”) issued to Petitioner on May 29, 2008, are appropriate. PRELIMINARY STATEMENT The Department issued an NOV to the Petitioner on May 29, 2008, alleging violations of ’ the Department’s underground storage tank regulations at a retail fuel facility located at 10599 Fairchild Road, Springhill, Hernando County (“Property”). The violations alleged in the NOV involved the failure to report a discharge; the failure to initiate a site assessment; and the failure to submit a site assessment report to the Department concerning petroleum contamination at the Property. The NOV issued to the Petitioner ordered the Petitioner to assess and cleanup all petroleum contamination at the Property in accordance with Fla. Admin. Code Chapter 62-770, and pay $10,000.00 in civil penalties and $500.00 in costs. The Petitioner filed a Petition for Administrative Hearing on June 9, 2008. In the Petition for Administrative Hearing, the Petitioner stated that it wanted a formal hearing pursuant to Section 403.121(2)(c), Florida Statutes, so that matters could be discussed in more detail. The Petitioner also stated in its Petition for Administrative Hearing that it believed that the matters alleged in the NOV had been resolved based upon representations of the Department. Petitioner, however, failed to provide the information required by Rule 28-106.2015, F.A.C., when requesting a formal hearing. The Department thereafter entered an Order Dismissing Petition with Leave to Amend on July 22, 2008. The Petitioner filed an Amended Petition for Administrative Hearing on July 25, 2008, again asking for a formal hearing pursuant to Section 403.121(2)(c), Florida Statutes, and also citing to Section 120.57(1), Florida Statutes. In the Amended Petition for Administrative Hearing, the Petitioner did not state that there were no disputes of material facts, but also did not appear to dispute the material facts as alleged in the NOV. Thereafter, the Department entered its Order Establishing Informal Proceeding. Prior to the Informal Hearing scheduled for March 25, 2009, the Petitioner did not submit any documents to the Department for consideration at the Informal Hearing. The Petitioner also did not ask for a continuance of the Informal Hearing scheduled for March 25, 2009. The Petitioner did not appear in person or by phone at the Informal Hearing held on March 25, 2009. CONCLUSIONS OF LAW Because the Petitioner requested a formal hearing in its Petition for Administrative Hearing and its Amended Petition for Administrative Hearing, did not allege in either of its Petitions that it was not disputing any material facts, and did not appear at the scheduled Informal Hearing to clarify its intentions, it is not clear that this matter should proceed by way of an Informal Hearing. For the foregoing reasons, It is therefore ORDERED: The Petitioner’s Amended Petition for Administrative Hearing shall forthwith be sent to the Department of Administrative Hearings for a formal hearing. JUDICIAL REVIEW Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120,68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. 6 DONE AND ORDERED this 6" day of April, 2009, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION L AN, Presiding Officer Chief Deputy General Counsel 3900 Commonwealth Blvd. — M.S. 35 Tallahassee, Florida 32399-3000 FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED. Bealuadll Lf bofog CLERK DAT! CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: Michael Kahanyshyn Seven Hills Golf Club 10599 Fairchild Road Spring Hill, Florida 34608 and by hand delivery to: Janet Tashner, Senior Assistant General Counsel Florida Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, Florida 32399 this 6th day of April, 2009. STATE OF FLORIDA DEPARTMENT OF ENYIRONMENTAL PROTECTION 3900 Commonwealth Blvd. — M.S. 35 Tallahassee, Florida 32399-3000

Docket for Case No: 09-002118EF