Findings Of Fact Petitioner, Jerry's Oil, prepared Early Detection Incentive Program Notification Applications for two of its gas stations in Florida on August 13, 1987. One application was for a station located in Okeechobee, Florida, registered as DER Facility No. 478732808. The other application was for a station located in Tarpon Springs, Florida, registered as DER Facility No. 528732810. The application form had two purposes. The first purpose of the form was to notify the Department of Environmental Regulation of petroleum contamination problems. The second purpose was to provide information to the agency that could be used to determine the applicant's eligibility for the Early Detection Incentive (EDI) Program. The EDI Program provides funding and other state assistance with environmental cleanup of petroleum contamination problems to tank owners for a limited period of time. To be eligible for participation in the EDI Program, an applicant had to complete the application form provided by DER and submit it to the agency during the reporting period from July 1, 1986 through December 31, 1988. The application for the Okeechobee gas station reports that a discharge of unleaded gasoline was discovered at the site on July 8, 1987. The dispenser, which is part of the storage system, leaked because of a loose connection. The estimated number of gallons lost was unknown, but the system was repaired before the report was made to DER on August 13, 1987. The application for the Tarpon Springs gas station reports that a discharge of vehicular diesel was discovered at this site on July 12, 1987. There was a loose connection between a pipe and the dispenser. In addition, the pump hose leaked. The amount of gallons lost as a result of these equipment problems was unknown. The gasket on the pump was replaced, and the system was otherwise repaired prior to the report to DER. Petitioner completed these applications to report the discharges and to have the company's eligibility for the EDI program determined by DER. As part of his usual business practice, the owner of Jerry's Oil completed the applications and gave them to Delores M. Quinette. Ms. Quinette then made copies of the front page of each application for Petitioner's files. Ms. Quinette placed the applications together in one envelope addressed to the Department of Environmental Regulation at 2600 Blairstone Road, Tallahassee, Florida. The envelope indicated that this correspondence was directed to the attention of Laurie Ginger. The proper return address was also placed on the stamped envelope. On the same day, the envelope containing the applications was placed in the residential mailbox belonging to Delores M. Quinette at 1110 Pine Lake Drive South, Tampa, Florida 33612. The red flag on the mailbox was raised to alert the mailman that the mailbox contained outgoing mail. This mailing procedure was used by the Petitioner in the ordinary course of business as Ms. Quinette is an independent contractor who handles the paperwork for Petitioner from her home. On August 14, 1987, Ms. Quinette checked the mailbox to remove incoming mail. The envelope addressed to the DER was no longer in the mailbox. It was assumed that the mailman had taken the outgoing mail for delivery to the addresses indicated on the correspondence. The envelope containing the applications was never returned to Ms. Quinette by the U.S. Postal Service. Petitioner relied on this mailing procedure to notify DER of the petroleum discharges and its intention to apply for eligibility into the EDI program. DER's records relating to EDI Program applications do not reflect that these two applications were received within the designated reporting period or within a reasonable time thereafter. DER first become aware that the original applications had been sent in August 1987 during the month of September of 1991. This was over two and a half years after the reporting period had closed. Petitioner discovered that the original applications were never received by DER when inquiry was made by Petitioner's contractor about the company's EDI Program eligibility during site rehabilitation in September 1991. Copies of the front page of each application retained by Petitioner were then mailed to DER, along with an affidavit stating the original applications had been mailed on August 14, 1987. Upon receipt of these copies, DER advised Petitioner it was ineligible to receive EDI Program benefits because these applications were not timely filed. Petitioner takes the position that DER should look to the date the original applications were entrusted to the U.S. Postal Service instead of the date the copies were received by DER as the reporting date for the eligibility determination. Petitioner also contends that it is possible that DER might have lost applications actually received. Neither the receipt of the original applications by DER nor the agency's loss of the applications was proved at hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the applications for eligibility in the EDI Program submitted by Petitioner for DER Facility Nos. 528732810 and 478732808 be denied as they were not timely filed with the Department. That the doctrine of equitable tolling should not be applied to the reporting period deadline on Petitioner's behalf because the responsibility to make sure the applications were received by DER remained with Petitioner throughout the application process. DONE and ENTERED this 1st day of May, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 1st day of May, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 - #12. Accepted. See HO #1 - #12, and #15. Accepted. See HO #14. Accepted. See HO #13, #14, #15 and #16. Accepted. See HO #17. First sentence accepted. Second and third sentences accepted. Fourth sentence rejected. Speculative, assumes facts not in evidence and without proper foundation. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. 3. Accepted. See HO #1. 4. Accepted. See HO #2. 5. Accepted. 6. Accepted. See HO #2. 7. Accepted. 8. Accepted. 9. Accepted. See HO #14. 10. Accepted. See HO #15. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. See HO #13. 15. Accepted. See HO #15. 16. Accepted. Rejected. Irrelevant. Hearing Officer relied on testimony at hearing. Also, misrepresentation of testimony and events, contrary to fact. Accepted. See HO #16. Accepted. See HO #16. COPIES FURNISHED: WILLIAM B TAYLOR IV ESQ MacFARLANE FERGUSON ALLISON & KELLY PO BOX 1531 TAMPA FL 3 3601 BRIGETTE A FFOLKES ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE ROAD TALLAHASSEE FL 32399 2400
Findings Of Fact Puckett Oil Company, at times pertinent hereto, operated a full-service gasoline and auto service station at 7251 Pensacola Boulevard, Pensacola, Florida. The station at that site performed a complete range of automotive repairs, including lubrication and oil changes. These services are typical of such full-service service stations. On or about June 27, 1986, the operator of that station which was owned by Puckett, Mr. Winters, discovered a discharge of used oil at the site. The discharge occurred because the operator believed that used oil had been drained into an underground storage tank on a routine basis at the facility, as the oil was changed in customer vehicles. In fact, it developed that, unbeknownst to Mr. Winters, the tank had been removed by the prior land owner. This resulted in repetitive contamination of soil and groundwater at the facility, since the oil poured into the floor drain at the station, after being removed from the crank cases of customer vehicles, was in reality draining into the ground, instead of into a storage tank. After becoming aware of this problem, Puckett filed an Early Detection Incentive (EDI) Program Notification Application, reporting the discharge of used oil to the Department, pursuant to Section 376.3071, Florida Statutes (Supp. 1986). That EDI notification application form lists used oil as a "product." Puckett notified the Department of its intent to proceed with voluntary cleanup at the Puckett site pursuant to Section 376.3071(11) and (12), Florida Statutes (Supp. 1986), and to seek reimbursement for the cost of that contamination cleanup pursuant to Section 376.3071(12), Florida Statutes (Supp. 1986). The Department, in view of the request, conducted a site inspection on December 19, 1986. The Department's inspection personnel prepared an EDI Program Compliance Notification Checklist on the Puckett site. This report noted the circumstances of the discharge, to the effect that the used oil tank had been removed while used oil was still being disposed of through the drain at the service station. Thereafter, by its Order of April 16, 1987, the Department advised Puckett that its site was not eligible for "Super Act" reimbursement. The denial of eligibility was based on the DER's position that used oil was not "petroleum" or a "petroleum product" for purposes of Section 376.301(9) or (10), Florida Statutes (Supp. 1986). On May 8, 1987, Puckett filed a Petition for Formal Proceedings, alleging, among other things, that used oil is "petroleum" or "petroleum product" within the meaning of the "Super Act" and that the Department is estopped from denying "Super Act" reimbursement eligibility for voluntarily reported discharges of used oil. Inasmuch as the DER conducted inspections of the site in question, recording its findings, the Department was aware of the circumstances of the discharge; that the used oil tank had been removed and that oil had continued thereafter to be placed in the drain facility, thus contaminating the soil where the used oil disposal tank had formerly been placed. The Department did not raise the eligibility exception involving gross negligence in the Order of April 16, 1987, however, nor by any other vehicle until the filing of its Motion for Continuance with the Hearing Officer on August 31, 1987. Additionally, in response to a Request for Admissions served by Puckett, the Department admitted that the sole basis for denial of the reimbursement eligibility for the Puckett site was the fact that the substance discharged was "used oil," which the Department contends is not petroleum or petroleum product and thus is not a proper subject for reimbursement of related clean up and decontamination expenses. Uncontroverted evidence establishes that in August 1984, eleven oil changes at the Puckett site generated 3.5 quarts or about 9 1/2 gallons of used oil. Using this figure as an average, until the time the discharge was discovered 22 months later, the Puckett site generated approximately 210 gallons of used oil. Mr. Winters testified that he believed he had a 500 or 1,000 gallon used oil tank. Puckett's used oil was disposed of by inserting the drain bucket on the floor drain. The floor drain is a receptacle with an adapter on it for the oil drain bucket. Although the floor drain system appeared to be a working system, the underground used oil storage tank at the Puckett site had been removed, unbeknownst to Mr. Winters. It was apparently removed by Exxon Corporation, the previous site operator. It was Exxon's practice to remove fuel tanks from non-operational stations, such as the Puckett site was at the time it was sold to Puckett. It was not their normal practice, however, to remove used oil storage tanks. Mr. Winters, in his sixteen years of operating service stations, has never experienced a floor drain with such an adapter that was not connected to an underground storage tank. Further, he had previously leased a service station that had been purchased from Exxon after being closed for seven years and the used oil tank was still in place at the time he took possession of the station. He asked the person responsible for closing the Exxon station (the Puckett site) where the used oil tank was located. That person responded by pointing to an area of landscape shrubbery where a galvanized pipe could be seen protruding from the ground. A used oil collection company attempted to pump the contents of the tank using that pipe. Three large holly bushes were growing undisturbed over the area where Mr. Winters had been told the tank was located. It thus appeared to Mr. Winters that the tank could not have been removed. There was no evidence that Mr. Winters attempted to conceal the discharge of the oil or that he continued to dispose of the used oil in the floor drain after discovering that the tank had been removed. If the floor drain had not become stopped up, Mr. Winters likely never would have begun looking for the presence of the tank. A used oil collection company never was able to pump any used oil from the pipe supposedly connected to the tank. It was Mr. Winters' belief that used oil collection companies normally came to service stations after closing hours to pump the used oil storage tanks, so they can avoid paying for the used oil. It was for this reason, he believed, that he rarely had seen a used oil collection company trying to pump oil from such a storage tank. He was thus not concerned when the company reported that it could pump no used oil from the tank because he believed that another used oil collector had previously drained it. The used oil discharged at the Puckett site consists of used engine crank case oil with an estimated two percent of used transmission oil. Used oil at the Puckett site is not mixed with solvents or other hazardous wastes. Puckett does not accept neighborhood collections of used oil. An assessment of the contamination at the Puckett site was conducted by Delta Environmental Consultants. Delta had an analysis of soil samples prepared by Pioneer Laboratories and an analysis of ground water samples by Savannah Laboratories. Dr. Litt, the Petitioner Puckett's expert witness, opined, based on the contamination assessment, that the contamination was due to used oil or "used oil fuel" instead of "hazardous waste fuel" or hazardous waste. Dr. Litt relied on the testimony of Mr. Winters to the effect that solvents or other hazardous wastes were not mixed with the used oil at the Puckett site in the service station's operations. Based on the soil and ground water analyses supplied him, Dr. Litt found an absence of halogenated solvents which would commonly be mixed with used oil, thus corroborating Mr. Winters' testimony that the used oil at the Puckett facility was not known to have been mixed with any hazardous wastes. The soil analysis indicates a level of organic halogens of 1,090 parts per million. This level might raise a presumption, under relevant EPA regulations, that the oil had been mixed somewhat with hazardous wastes, but Dr. Litt established that indeed no mixing had occurred based upon Mr. Winters' testimony, as well as the fact that the testing method used is accurate to only a plus or minus 700 parts per million in a total range of 1,000 to 2,000 parts per million. Indeed, some halogen levels may be attributed to natural soil conditions. Thus, the finding of 1,090 parts per million organic halogens could be as much as 700 parts per million in error, and some of this quantity can be due to natural backgrounds. Additionally, the level of individual chlorinated solvents sampled indicated no mixing of used oil with typical hazardous wastes. International Petroleum Corporation International Petroleum Corporation (International) has operated an oil storage plant and used oil reclamation facility at 105 South Alexander Street, Plant City, Florida, since May 1980. That site contains approximately 10 acres. There are two on-site tank farms containing 17 above-ground stationary tanks and two underground tanks. One underground tank holds 10,000 gallons and is used to store diesel fuel. The other tank holds 5,000 gallons and stores virgin gasoline. The above-ground tanks range in size from 8,000 to 212,000 gallons and are used to store oil, both used oil and new oil. All the tanks have been registered with the DER in accordance with its rules and are a part of the DER's "stationary tank system." The plant site also contains an office building and a testing laboratory which provides an array of testing services. The lab contains an atomic absorption unit, kinematic viscosity baths, API gravity hydrometers, distillation equipment and a gas chromatography. International uses this equipment, operated by a trained chemist, to test incoming loads of oil for such things as viscosity, flash point, API gravity, heavy metals, halides, etc. Since 1980, International has received, processed and sold more than 5,000,000 gallons of oil from this facility. The oil processed through the facility includes virgin kerosene, diesel, jet fuel and oils of various grades ranging from ASTM grade numbers 1-4 (the distillates) and ASTM grade numbers 5, 6 and "bunker C" (the residuals). The residual oils are those oils left after the lighter distillates are removed through the vacuum distillation process. The amount of residual oils processed since 1980 is relatively low, less than fifteen percent of the total amount of oils processed at International's facility. Out of 7,000,000 gallons processed in an average year, the plant may receive two or three carloads of grade numbers 5, 6 or bunker C. From 1980 to 1985, approximately 7,000,000 to 12,000,000 gallons of virgin oils were processed at the facility. In each of those years, from 4,000,000 to 7,000,000 gallons of used oil were also processed. Over that five- year period approximately 20,000,000 gallons of used oil were processed and sold through the International facility. International blends virgin oils received at the plant with used oils to meet particular specifications of a customer. It uses its own trucks to collect oil from service stations, automobile dealerships and other industrial accounts. Oil is then delivered to the plant and tested for basic constituents before being placed in an appropriate storage tank. International tests all incoming used oil to see if it meets the criteria for so-called "on spec" used oil or "off spec" used oil. These specifications were established by the EPA in 1985 and adopted by the DER. Used oil meeting these criteria may be burned as fuel in industrial and non-industrial boilers without limitations. The criteria are as follows: Constituent/Property Allowable Level Arsenic 5 ppm maximum Cadmium 2 ppm maximum Chromium 10 ppm maximum Lead 100 ppm maximum Total Halogens 4,000 ppm maximum Flashpoint 100 degrees Fahrenheit minimum International has followed a practice of rejecting incoming used oil which fails to meet the criteria of 1,000 parts per million or less of total halogens, which is the rebuttable threshold presumption of "hazardous waste" oil. International makes an effort to ensure that used oil it receives and processes is thus "on spec." It regularly sends samples to independent laboratories to cross-check its own laboratory testing results. It is selective in its sources of used oil and typically obtains used oil from large companies such as the Mack truck shops, car dealerships and other large volume producers of used oil. These are sources unlikely to be contaminated with any hazardous materials. The "on-spec" used oil accepted by International is placed in separate storage tanks, segregated according to water content and API gravity, viscosity and lead content. It is then blended with virgin oils to meet the specification of various customers. Heat is sometimes supplied in order to drive off water. The used oil undergoes no further treatment or alteration, being merely tested and blended to meet the customer's requirements. Often blending is unnecessary. When a truckload is received, tested and found to meet specifications, it is sometimes directly delivered to a customer. International sometimes obtains used oil without payment from its suppliers and has often purchased it from the generators of used oil. It always sells it to its customers, however. It has a definitely defined industrial market as a fuel commodity and is recognized as having value when sold for such purposes. It may sell for as little as 30 cents per gallon and has sold for much more than that, depending on the market conditions prevailing at the time of sale. It is used both as a burner fuel for industrial and non-industrial boilers, as well as a key constituent in the phosphate beneficiation process. International sells approximately 40 percent of its used oil production to asphalt plants where it is used to fire burners and to rock drying mills, also as a burner fuel. It sells approximately 60 percent of its production of used oil to the phosphate companies for the beneficiation process. In that process, oil is used with other reagents and fatty acids to "float" phosphate out of the rock or ore in which it is contained, allowing it to be skimmed and separated. Although the oil is not burned as a fuel in this process, its use by the phosphate plants substitutes for virgin oils of ATM grade numbers 4 and 5 (heating oil) or in some cases kerosene or number 2 diesel. In 1985, International produced 4,295,101 gallons of used oil which were burned as a fuel by its customers and in 1986 produced 2,221,652 gallons of used oil which were burned as a fuel. The used oil which it sells for the beneficiation process meets DER and EPA standards for "on spec" used oil fuel, except for the lead content, which fact is immaterial to its use for the beneficiation of phosphate. The used oil sold for phosphate purposes does meet pertinent regulatory standards for "off spec" used oil, in any event, so that it could be burned as industrial furnace fuel under EPA and DER rules. The sale of used oil for final use as a burner fuel is very common. Many oil recyclers pick up used oil and take it directly to asphalt plants for burning as fuel without any blending or other treatment. International's sale of 60 percent of its used oil for phosphate processing is unique in the used oil industry, but is attributable to its close proximity to the central Florida phosphate plants. Most oil recycling facilities sell a larger percentage of their product for burner fuel than does International. The used oil which International sells as burner fuel is comparable to heating oil, ASTM grade numbers 2 or 4 and has a similar viscosity, specific gravity and flash point. It can be poured and handled without preheating. Residual oil, however, such as grade numbers 5 and 6 (bunker C) are very viscous and require preheating in industrial boilers or burner furnaces before it can be burned as fuel. The used oil sold by International Petroleum is more similar to ASTM grades 2 and 4 (the distillates) than it is to grades 5 and 6 (the residuals). Petroleum hydrocarbon contamination of the soil and groundwater at the International site was discovered in December 1983 by DER personnel. International retained a consultant to assess the site and determine the nature and extent of any contamination. It has already expended more than $50,000 in an effort to investigate and clean up petroleum contamination at its site. DER conducted a soil and groundwater site investigation in 1985, which showed that hydrocarbons were in the soil and that volatile organics were also present in the groundwater at the site. International has provided all background information requested by DER on site conditions existing prior to cleanup. This was for purposes of showing its entitlement to reimbursement eligibility. The contamination at the site consisted mostly of small leaks, drips and spills associated with loading and unloading railway tank cars, as well as stationary tanks, over at least a five year period. The storage tanks include integral piping systems, and some leakage occurred at hose or pipe connections. The petroleum products placed in the various tanks in the tank farm vary, so that the contamination existing at the site cannot be differentiated or attributed separately to used oils or virgin oils, to distillates (ASTM grades 1-4) or the heavier residuals. All are made up of hydrocarbons and their breakdown products in the ground are essentially indistinguishable. The record does not establish that any major or significant oil spills have occurred at the plant site and does not show that the operators have been particularly negligent or have failed to conform to industry standards. International has already taken remedial action by building high retaining walls and by removing contaminated dirt where repeated drippages occurred near the railroad tracks. Employees have received training to avoid leaks from hoses and pipes and have been instructed to clean up even small spills immediately. Valve equipment has also been upgraded. As a result of these efforts, subsequent testing of the monitoring wells at the site has shown that the groundwater condition has markedly improved and it may be possible that the cleanup action already taken will be sufficient to accord with regulatory standards for groundwater. Used Oil as "Petroleum" or "Petroleum Product" Used oil is derived from crude oil and consists primarily of engine lubricating oil which is a form of hydrocarbon and a special fraction of the original crude oil. The lubricating oil consists of vacuum distilled base oil and atmospheric distillate portions of crude oil produced at a refinery and further refined by processes involving wax removal and solvent extraction. The remaining portion of lubricating oil consists of additives added to the base oil to improve certain physical properties such as rust inhibition and to improve viscosity. Many of these additives, in turn, are substantially comprised of base oil themselves. Used oil also typically contains gasoline which condenses in the crank case, water, gasoline additives, lead sulfates, carbonates or oxides and other partial combustion products of gasoline motor fuel. Lead contained in used engine oil is produced by engines running on tetraethyl lead gasoline. This lead accumulates in the form of lead sulfate, lead carbonate or lead oxide, rather than tetraethyl lead in its original form. The sulfates, carbonates and oxides are insoluble and are not likely to be leached out by groundwater, in contrast to tetraethyl lead. Use of the oil does not change its basic chemical structure. The oil may be contaminated by various impurities resulting from partial combustion of gasoline, from rust, from condensed water and so forth, but these are essentially mechanical mixtures, rather than alterations of the chemical structure of the oil itself. Aside from water, when oil is pumped from the ground at the well, two substances are produced at the well head: crude petroleum oil and natural gas, including casing head gas. Used oil is similar in nature to the petroleum products specifically listed in Section 376.301(10), Florida Statutes (Supp. 1986). The predominant use of used oil is as a fuel, similar to diesel, kerosene and gasoline. A fuel is a material burned as a source of heat, rather than for disposal purposes. It can be either for propulsion purposes or for stationary equipment such as industrial boilers, asphalt plants and the like. Kerosene and diesel fuel are similar in terms of viscosity and BTU value to ASTM grade number 2 fuel oil. Used oil is thicker and more viscous than ASTM grades 2, 3 or 4, but not so viscous as grades 5 or 6. Neither does it have as high a BTU content as grade number 5 fuel oil. ASTM grade number 5 residual oil must be preheated before burning as a fuel. Viscosity is too high for the material to atomize properly at normal temperature. In fact, used oil can be used as a blending agent to blend down or reduce viscosity of grade number 5 oil and reduce the temperature to which number 5 oil must be preheated before burning. With some variance from one sample to another, used oil typically is similar in viscosity and BTU value to ASTM grade number 3 or 4 fuel oil. Gasoline, kerosene, diesel and used oil are all hydrocarbons which burn readily. These materials are mixtures of hydrocarbons, with additives which do not materially affect the properties of the hydrocarbon fuel, or its use as a fuel. Gasoline, in fact, is not classified by ASTM grade. Parenthetically, it thus appears that the Legislature did not intend to limit the scope of "petroleum product" by such considerations as only viscosity and BTU value. "Petroleum products" are commonly used as fuels and are typically stored at service stations or storage tank facilities which can pose a danger of causing inland soil or water contamination, if improperly discharged. Gasoline, kerosene, diesel and used oil are commonly stored in tanks at facilities throughout the state. Used oil does not have any meaningful similarity to the substances specifically excluded from the definition of petroleum or petroleum product by Section 376.301(10), Florida Statutes (Supp. 1986). Used oil, for instance, bears little similarity to liquefied petroleum gas or to petrochemical feed stocks, which latter products are used to supply the raw materials for chemical plants manufacturing petrochemicals of many types. Used oil only is similar to these substances to the extent that it is within the broad family of hydrocarbons derived from crude oil or gases, derived in turn from petroleum wells. Likewise, the ASTM Grades 5 and 6 residual oils are based on the residuum or the heave viscous material left after the distillation process is applied to crude oil. This residuum is the material left that is too heavy to further distill. On the other hand, crank case lubricating oils and transmission oils, which are typically involved in the category "used oil" or "used oil fuel," are derived by the process of vacuum distillation such that they are distillation products, as opposed to residual products. "Bunker C" oils, and marine bunkering oils generally, are residual fuel products and, together with asphalt oil, are not used as fuel, at least not at inland locations. These materials likewise are typically not stored at inland service stations or bulk storage or reclamation facilities and locations. Both the Federal Environmental Protection Agency (EPA) and the Florida DER, in their regulatory scheme concerning used oil, encourage its collection and recycling. Used oil is typically recycled as a fuel and as a lubricant, by being separated from its contaminants by a re-refining process. Indeed, the oil constituent of used oil is not altered by use as lubricating or transmission oil, but rather is rendered in a "used oil" state by being subjected to various contaminants. It is not presently economically viable, given low virgin oil prices, to recycle used oil for lubricating oil. Thus, the two alternatives for disposition of used oil are to deposit it in landfills, a practice now generally prohibited by the DER and other regulatory authorities, or to use it as a fuel. Indeed, the use of used oil as a fuel is about the only practical way to dispose of it safely and legally in view of former uses, such as road oiling for dust control and weed abatement, now being prohibited in potable water aquifer areas. Section 403.75(2), Florida Statutes (1985). Thus, it is not only common and general practice to burn used oil as a boiler fuel and as a fuel in various industrial and utility plants, at the present time-that is almost the only manner in which it can be legally and safely disposed of. The Department itself has a policy encouraging the collection and recycling of used oil, as lubricating oil, fuel or as a feed stock in the manufacturing of other petroleum products. (See IP Exhibits 17, 18 and Joint Exhibit 5 in evidence.) Under EPA regulations which have been adopted by DER, used oil is not regulated as a hazardous waste. Under these regulations, the EPA has adopted a "rebuttable presumption of mixing" in order to distinguish between used oils which have been contaminated through mere use and used oils which have been mixed with hazardous wastes and therefore must be regulated as hazardous wastes or "hazardous waste fuel." Certain hazardous, halogenated constituents, such as chlorinated solvents, are the hazardous wastes typically found mixed with used oil. The "presumption of mixing" provides that any used oil containing greater than 1,000 parts per million of total halogens (such as chlorine, fluorine, bromine, iodine and similar substances) is presumed to have been mixed with a hazardous waste and will be regulated as "hazardous waste fuel" under 40 CFR Part 266, Subpart D, rather than as "used oil fuel" under 40 CFR Part 266, Subpart E. Hazardous waste fuel is essentially a hazardous waste with a BTU value of at least 5,000 BTUs per gallon. Hazardous waste fuel burning is tightly regulated by the EPA and DER. The presumption of mixing can be rebutted through a demonstration that the used oil in question has not been mixed with any hazardous waste. If mixing of used oil with hazardous wastes is known to have occurred, however, the oil is regulated as a hazardous waste when it is burned for energy recovery. Once it has been determined that a particular used oil is a used oil fuel and not a hazardous waste, the used oil falls into one of two categories: "Specification used oil fuel" or "off-specification used oil fuel." Specification used oil contains essentially the same toxic constituents as virgin oil fuels. Off-specification used oil fuel contains elevated levels of toxic components. Most used oil is off-specification, particularly if it is made up of mixtures of several types of used oil. If oil comes from a service station which was used in an engine burning leaded gasoline it would likely result in the used oil from that engine being off-specification due to the toxic lead compounds which would be present in the oil. If the oil was used in an engine which burned unleaded fuel, it is likely that it would be within specification limits for "on-specification used oil." Neither type of used oil is regulated as hazardous waste when burned as fuel, however. For purposes of determining whether an oil fuel is off-specification on on-specification, the EPA has developed a list [at 40 CFR Section 266.40(e): of contaminants, with the allowable levels for each contaminant, below which oil will be determined to be "on specification." Those contaminants are arsenic (5 ppm), cadmium (2 ppm), chromium (10 ppm), lead (100 ppm), with total halogens not exceeding 4,000 ppm in order for used oil to be within specification for nonindustrial burning. Specification used oils may be burned as fuel in nonindustrial boilers, including schools, hospitals, and apartment buildings. Off-specification used oil fuel may be burned in industrial furnaces, industrial boilers, utility boilers and some space heaters meeting certain federal safety requirements. Moreover, EPA regulations allow the blending of off-specification and specification used oil so that the resultant used oil, when burned, meets the specifications for nonindustrial burning. The Department's policy makers who were responsible for the initial decision that used oil is not petroleum or a petroleum product did not consult with certain key personnel in the Department's own used oil section concerning whether oil should be considered as a petroleum or petroleum product. In fact, Mr. Gentry, who is involved in policy making regarding the subject matter of the "Super Act," was not aware that the Department has a program to encourage the burning of used oil as a fuel nor the fact that used oil is extensively burned as a fuel in Florida.
Recommendation Having considered 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, therefore RECOMMENDED that the applications of Puckett Oil 4 Company and International Petroleum Corporation for eligibility for reimbursement pursuant to Section 376.3071(12), Florida Statutes (Supp. 1986), be granted. DONE and ENTERED this 7th of June, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 7th day of June, 1988. APPENDIX TO RECOMMENDED ORDER CASE NOS. 87-2161 & 87-2465 Petitioners' Proposed Findings of Fact: 1-23. Accepted. 24. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 25-38. Accepted. 39-40. Rejected as subordinate to the Hearing Officer's findings and as not directly material. 41-45. Accepted. 46-48. Rejected as not material and relevant. 49-54. Accepted. 55. Rejected as subordinate to Hearing Officer's findings on this subject matter. 56-58. Accepted. 59. Rejected as subordinate to Hearing Officer's findings on this subject matter. 60-63. Accepted. 64. Rejected as subordinate to the Hearing Officer's findings on this subject and as unnecessary to the resolution of material issues. 65-70. Accepted. 71. Rejected as irrelevant. 72-77. Rejected as subordinate to the Hearing Officer's findings on this subject. Accepted, but not directly relevant and material. Accepted. Respondent's Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 7-8. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as immaterial, in part, because the Hearing Officer, in determining whether the material at the subject sites meets the statutory definitions at issue is not, by the "pleading" confronted with the issue of whether any and all types of "used oil" meet these definitions, rather merely those types comprising the contamination at Petitioner's facility. The Hearing Officer cannot, in this proceeding, issue declaratory statements or advisory opinions. Accepted. Accepted, except for the next to last sentence. 11-12. Accepted. Accepted as to its historic accuracy, but not as a resolution of the essential issue presented. Rejected as immaterial in the absence of a Motion to Compel further, more detailed answers. Accepted as to its historical accuracy, but, for reasons similar to the ruling next above, not as probative of the appropriate, timely raising of the issue of gross negligence. 16-24. Accepted. 25-26. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Accepted. Accepted as to its historical import. 29-38. Accepted. 39. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant evidence of record. 40-43. Accepted. 44-45. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Rejected as not constituting a finding of fact, but, rather, a conclusion of law and statement of policy. Rejected as contrary to the preponderant evidence, as subordinate to the Hearing Officer's findings and as largely immaterial. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter; as being partially immaterial and as a discussion of policy and not a pertinent finding of fact. 51-53. Rejected as constituting legal argument and not a finding of fact. 54-55. Rejected as constituting legal argument. 56. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence. 57-58. Rejected as - subordinate to the Hearing Officer's findings on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 61-63. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence and as constituting, in part, legal argument instead of fact finding. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant weight of the evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter, as contrary to the preponderant weight of the evidence and, standing alone, of scant materiality in proving whether used oil is a "petroleum product" or a "fuel commodity." Rejected as contrary to the preponderant weight of the evidence. 78-80. Accepted in part, but not as to its material import and subordinate to the Hearing Officer's findings on this subject matter. 81-84. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant credible evidence. 85. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant credible evidence and as largely immaterial. 86-87. Rejected as immaterial to the ultimate factual and legal issues. 88-89. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as contrary to the preponderant credible evidence. Accepted. 92-93. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 94-95. Rejected as subordinate to the Hearing Officer's findings on this subject matter and not in itself material. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Rejected as not comporting with the preponderant weight of the evidence and as immaterial. Rejected as immaterial and irrelevant. Rejected as subordinate to the Hearing Officer's findings and as not directly material and relevant. Rejected as not in accordance with the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's 4 findings on this subject matter. 102-103. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as to its purported material import. 104. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as to its purported material import and further as not being in accord with the preponderant weight of the evidence. 105-106. Rejected as constituting legal argument and discussion. 107-109. Rejected as constituting legal argument and discussion and as contrary to the preponderant weight of the evidence. 110-111. Rejected as constituting legal argument and discussion. 112-113. Rejected as constituting legal argument and discussion and as contrary to the preponderant weight of the evidence. Rejected as constituting legal argument and discussion. Accepted but subordinate to the Hearing Officer's findings and not, in itself, material to the legal issue sub judice. Rejected as contrary to the preponderant weight of credible evidence. Rejected as not in itself material and as contrary to the preponderant weight of the credible evidence. Rejected as not in itself material and as contrary to the preponderant weight of the credible evidence and as constituting legal argument and discussion. 119-120. Rejected as subordinate to the Hearing Officer's findings on this subject matter and as to its purported material import and further as not being in accord with the preponderant weight of the evidence. COPIES FURNISHED: Robert D. Fingar, Esquire HUEY, GUILDAY, KUERSTEINER & TUCKER Regulation Suite 510 First Florida Bank Building Post Office Box 1794 Tallahassee, Florida 32302 Dale Twachtmann, Secretary Department of Environmental Blair 2600 Stone Road Tallahassee, Florida 32399. L. Caleen, Jr., Esquire OERTEL & HOFFMAN 2400 Blair Stone Road Tallahassee, Florida 32301 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner's service station site known as Siesta Key Exxon Village, at 5201 Ocean Boulevard, Sarasota, Florida, is eligible for state administered cleanup pursuant to Section 376.3071(9), Florida Statutes.
Findings Of Fact Weeks Oil Company, Inc., owns and operates a service station, Siesta Key Exxon, located at 5201 Ocean Boulevard, Sarasota, Florida. On December 21, 1988, Petitioner applied, pursuant to the Early Detection Incentive Program (EDI), for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a manual test of a monitoring well, conducted on December 16, 1988, detected contamination. After free product was discovered in the monitoring wells in December, 1988, subsequent monitoring well reports for the months of January - May, 1989, indicated the presence of free petroleum product. The January, 1989, monitoring report indicates six inches of free product; the February, 1989, monitoring report indicates twelve inches of free product; the March, 1989, report failed to indicate the presence of free product; and both the April and May, 1989, monitoring reports indicate the presence of sixteen inches of free product. Purity Well Company, the monitoring well contractor retained by Weeks Oil, bailed free product out of the monitoring wells once a month during the period January through May, 1989. On May 23, 1989, Richard Steele of the Sarasota County Pollution Control Division conducted an Early Detection Incentive Program Inspection at Siesta Key Exxon, 5201 Ocean Boulevard, Sarasota, Florida, DER Facility #588521170. During the inspection, Mr. Steele examined the monitoring well reports for Siesta Key Exxon for the months of January through May, 1989. Evidence of contamination was indicated by each month's monitoring well report, and the amount of free product indicated by the monitoring well reports increased over time. During the May 22, 1989, inspection, Mr. Steele observed a minimum of two feet of free product in monitoring well number three. As part of the Early Detection Incentive Program inspection, Mr. Steele requested inventory records for Siesta Key Exxon, which records were provided on June 7, 1989. Inventory records for January, February, March and April, 1989, indicated a total shortage of 441 gallons of gasoline. Mr. Steele's inspection report of May 22, 1989, indicates that no initial remedial action other than the bailing of monitoring wells occurred subsequent to the December, 1988, EDI application. During the May 22, 1989, inspection, Mr. Steele was neither provided with any evidence of repairs to the petroleum storage system made for the purpose of acting upon monitoring well reports, nor did he visually observe any evidence of repair. By letter dated May 24, 1989, from Richard Steele to Weeks Oil Company, Mr. Weeks was informed of the presence of two feet of free product in monitoring well number three and specifically requested a tank tightness test. The May 24, 1987, letter requested Mr. Weeks to send the results of the tank tightness test to the Sarasota County Pollution Control Office or the Department of Environmental Regulation district office. Mr. Weeks discussed with Steele the fact that the contaminants appeared to come from tanks no longer in service, which tanks were scheduled for relining. Mr. Weeks did not consider it practicable to test tanks scheduled for relining and thought Steele agreed that he could delay the testing until the tanks were refitted. Mr. Steele never made such a commitment, and the tank test was never conducted. On October 20, 1989, the tanks at Siesta Key Exxon were excavated and fiberglass coated. The August 22, 1989 ineligibility determination cites as the reason for denial, the failure of Weeks Oil to conduct a tank tightness test as requested by Sarasota County or otherwise immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, The ineligibility letter concludes that failure to immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, shall be construed as gross negligence in the maintenance of a petroleum storage system, which precludes participation in the Early Detection Incentive Program. A tank tightness test should be performed by the owner or operator of a petroleum storage system where there are any discrepancies in inventory records or monthly monitoring system checks. Rule 17-61.050(4)(c) 3., Florida Administrative Code, requires upon discovery of an inventory discrepancy that investigation of the system "shall not stop until the source of the discrepancy has been found, the tank has been tested, repaired, or replaced, or the entire procedure has been completed." Pursuant to Rule 17-61.050(6), Florida Administrative Code, the owner or operator of a storage system shall test the entire storage system whenever the Department has ordered that such a test is necessary to protect the lands, ground waters, or surface waters of the state. Specifically, the Department may order a tank test where a discharge detection device or monitoring well indicates that pollutant has been or is being discharged. Given the inventory record discrepancy and the amount of free product continually observed in the monitoring wells at Siesta Key Exxon, it was appropriate for Mr. Steele to request a tank tightness test. The bailing of a contaminated monitoring well is not an appropriate method of determining the source of petroleum contamination. The failure of Weeks Oil Company, Inc., to timely conduct a tank test as requested by Sarasota County, acting on behalf of the Department, creates a risk of or the potential for greater damage to the environment because a continual unchecked discharge leads to the release of more petroleum product into the environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. ENTERED this 3rd day of May, 1990, in Tallahassee, Florida. K. N. AYERS, 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 3rd day of May, 1990. COPIES FURNISHED: Janet D. Bowman, Esquire Department of Environmental Regulation Twin Towers Office Building 2400 Blair Stone Road Tallahassee, FL 32399-2400 James B. Weeks, Jr. Weeks Oil Company Post Office Box 100 Sarasota, FL 34230 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Prior to July 10, 1984, Son-Mar Propane, Inc. (Son-Mar) was licensed by the Department as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. Virgil Berdeaux was the president of Son-Mar and he and his wife were the sole stockholders. Virgil Berdeaux passed the competency exam which qualified Son-Mar for licensure. Sonny Wade Berdeaux Virgil Berdeaux's son, was the manager of Son-Mar. Son- Mar's business address and place of operation was 16034 U.S. Highway 19 North in Hudson, Florida. Virgil Berdeaux and his wife owned the property located at that address and leased it to Son-Mar. A propane pumping station and a building was located on the property at 16034 U.S. Highway 19. The building housed a pawn shop and supply store for mobile home and RV equipment. Son-Mar operated the pumping station and the stores. It also installed tanks and delivered gas to customers. 1/ On July 10, 1984, a final order was entered by the Department which ordered "[t]hat any and all of [Son-Mar's] licenses issued by the State Fire Marshal Division of Liquefied Petroleum Gas and eligibility to hold said licenses are hereby revoked." The revocation of Son-Mar's licenses was due to its violation of certain safety standards and rules. Specifically, it was found that an employee of Son-Mar, Mr. John Delham, filled a cylinder that had not been recertified, that he lay it horizontally in the customer's van, and that he failed to secure the tank in the van. While the van was still parked at Son-Mar an explosion occurred which destroyed the van and killed its occupant. On July 19, 1984, nine days after Son-Mar's licenses were revoked, Virgil Berdeaux submitted an application for licensure as a dealer in appliances and equipment for use of liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida, and listing the business name as Son- Mar Pawn Shop. On August 3, 1984, twenty-four days after the revocation of Son- Mar's licenses, Sonny Wade Berdeaux submitted an application for licensure as a dealer in liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida. The Department issues several different types of liquefied petroleum gas licenses. A Type 06, Class 02 license, known as a 602 license, is issued to a dealer in appliances and equipment for use of liquefied petroleum gas. The 602 license allows the holder to sell propane appliances and equipment, such as stoves, heaters, and gas grills but it does not permit the holder to install appliances or sell propane gas. A competency examination is not required for this type of license, and there is no inspection of the place of business prior to issuance of the license. Virgil Berdeaux applied for a 602 license. He completed the application and submitted the required fee. The application listed W. C. Johnson, Virgil Berdeaux's son-in-law, as the manager of the business. Bill Johnson had run the pawn shop for Son-Mar. Sonny Wade Berdeaux applied for a Type 06, Class 04 license known as 604 license, which is issued to a dealer in liquefied petroleum gas. This type of license permits the holder to pump liquefied petroleum gas for sale to the public. An applicant for this type of license must pass a competency test and file a surety bond or certificate of insurance. Further, if the licensee has a dispensing station, an inspection of the business location must be performed to ensure that it is in compliance with all safety regulations. Sonny Wade Berdeaux passed the competency examination, filed a certificate of insurance, and submitted the proper fee. Son-Mar held a Type 06, Class 01 license (a 601 license) as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. A 601 license permits the holder to pump liquefied petroleum gas for sale to the public, to sell appliances and equipment for use of liquefied petroleum gas, and to install such appliances and equipment. In essence, it is a combination of a 602 license, a 604 license, and a license to install equipment. Both Sonny Wade Berdeaux and Virgil Berdeaux received letters dated October 8, 1984, which informed them that their applications for licensure had been denied. Both letters referred to the revocation of Son-Mar's licenses and pointed out that the applicants would be operating on the same premises and employing the same staff as Son-Mar. Both letters concluded as follows: Thus, it would appear that your application is seeking licensure for essentially the same entity that has only recently had its liquefied petroleum gas licenses revoked. Therefore, in the interest of public safety, this Bureau cannot permit an Order of Revocation to be obviated by a mere procedural reapplication in your name. The applications for licensure both list the business address as 16034 U.S. Highway 19 in Hudson, Florida. At the time of application Virgil Berdeaux owned that property and Sonny Wade Berdeaux had leased the pumping station. However, on July 1, 1985, the property at 16034 U.S. Highway 19 was sold. The pumping station was moved out along with the inventory that remained in the pawn shop. Neither Virgil Berdeaux or Sonny Wader Berdeaux retained any interest in the property, and at this time neither could operate a business at that location. Although there was testimony concerning the manner in which the business would have been operated and controlled had licensure been granted at the time of applications there was no testimony indicating where or how the business would now be operated. There was no attempt to amend either application to reflect a current business address, and the certificate of insurance entered into evidence lists 16034 U.S. Highway 19, Hudson, Florida, as the location covered. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that a Final Order be entered denying petitioners' applications for licensure. DONE and ENTERED this 21st day of May, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1986.
The Issue The issue in this case is whether the Petitioner is eligible for reimbursement for allowable costs pursuant to Section 376.3071(12), Florida Statutes, related to the cleanup of certain contamination at the Petitioner's ground transportation facility.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: Facts stipulated to by the parties The subject facility is a bus, limousine and van storage, dispatch, and service area for a ground transportation company serving Miami International Airport which contains a parking lot, fuel storage tanks, an administration building, and a maintenance shop. The Department of Environmental Regulation is the agency charged with responsibility for administering the provisions of Section 376.3071, Florida Statutes. Red Top Sedan, Inc., through its agents, notified the Department of possible ground and ground water contamination on or about September 10, 1986. The Department received said notification and on September 19, 1986, advised Red Top that the notice was adequate and requested further information. Following various correspondence and requests for information, the Department determined that it had sufficient information and, on February 1, 1988, issued its Notice of Intent regarding the eligibility of the subject sites for participation in the program. One area, adjacent to and surrounding the diesel fuel pumps, was found to be eligible. Another area, east and west of the maintenance shop (Exhibit "2" to the Notice) was found to be ineligible. Red Top filed a Petition for Administrative Determination which was received by the Department on February 23, 1988. The Petition was subsequently referred to the Division of Administrative Hearings and a Hearing Officer assigned. Facts Established at Hearing General Information About The Facility The subject facility also contains a parking area for approximately 95 buses, 40 to 45 vans, two dozen mini-buses, and 15 or 16 limousines and Lincoln towncars. There is also employee parking on the site. To the east of the Red Top office building there is a fuel island used for fueling Red Top's vehicles. The tanks associated with that fuel island have discharged diesel fuel. That petroleum contamination site is entirely separate from the one involved in this proceeding and has been found to be eligible for reimbursement. When the subject facility was constructed, Red Top employed an engineering company. It also employed a company named Service Station Aid. Service Station Aid is in the business of servicing tanks and other equipment used in connection with the handling of oil, gasoline, diesel fuel, and other similar products. Among other things, Service Station Aid installed underground waste oil tanks and tanks to hold automatic transmission fluid and new motor oil in the area of the maintenance facility. A drainage system servicing the asphalt parking areas and driveways surrounding the various buildings was also installed on the subject site. That system contained various grease traps which conformed to accepted practice at the time of their construction. Facts Regarding The East Side of the Maintenance Building Two underground waste oil tanks are on the east side of the maintenance building. The two waste oil tanks have been in operation since 1976, when the facility was built. Each of these two tanks has a capacity of 560 gallons. Employees of Red Top regularly pour used motor oil into the two waste oil tanks on the east side of the maintenance facility. The used oil is periodically removed by an EPA approved company. That company removes the waste oil to a fuel recycling facility in the Port Everglades area where it is made into recycled fuel. It is possible, even probable, that used oil has been spilled from time to time both while being poured into the waste oil tanks and while being removed from the waste oil tanks. However, there is no persuasive competent substantial evidence that any such spillage was a significant contribution to the contamination at the site. .1/ It is possible that one or both of the waste oil tanks has leaked. However, there is no persuasive competent substantial evidence that any such leakage was a significant contribution to the contamination at the site. In this regard it is noted that Red Top has not tested either of the waste oil tanks to determine whether they are leaking. Approximately 70 feet to the east of the maintenance building there are three storm drains. The storm drains are attached by way of a catch basin to soakage pits. Soakage pits are specifically designed to allow materials entering the soakage pit to be discharged directly to the earth. Storm drains are designed to catch stormwater runoff rather than large amounts of pollutants. The area to the east of the maintenance facility is paved with asphalt. That paved area is sloped so that any discharge of pollutants in that area of the site will flow to the storm drains. On numerous occasions waste oil has been observed in the storm drains. Instances of direct discharges of waste oil onto the ground or into the storm drains have been observed. Oil stains around the storm drains and observations by Dade County inspectors indicate that such direct discharges have been regular, if not frequent. Other sources of contamination at the Red Top facility include leaking drums of oil, oil leaking from stored or discarded equipment, oil discharged to the ground, disposal of contaminated waters from the maintenance building, and engine washing water discharged on the site. In the ground to the east of the maintenance building there is a large plume of dissolved oil and grease. This plume includes a plume of free product in the vicinity of the southernmost of the two waste oil tanks. Extending beyond the identified plume there are additional areas contaminated by constituents of waste oil. The primary cause of the contamination on the east side of the maintenance building is the direct discharge of contaminants. Discharge from the two waste oil tanks constitutes, at most, only a very minor cause of the overall contamination. .2/ Facts Regarding the West Side of the Maintenance Building On the west side of the maintenance building there are two underground tanks that are used to hold new motor oil and new transmission fluid. Motor oil and transmission fluid are lubricants used to lubricate engines and transmissions. They are not fuels. Pollutants which were discharged onto the floor of the maintenance building during maintenance work have been washed directly into the storm drains on the northwest side of the maintenance facility. There are two small areas of contamination on the west side of the maintenance facility. One such area is around a storm drain at the northwest side of the maintenance facility. The other is around the two tanks that contain new motor oil and transmission fluid. The contamination in the area of the storm drain includes lead, cadmium, and chromium. Motor oil and transmission fluid do not contain lead, nor do they contain levels of cadmium or chromium in amounts sufficient to be detected in groundwater. There is also an area of free product near the storm drain. There is no storage tank adjacent to the storm drain on the northwest side of the maintenance facility that could account for the lead, cadmium, and chromium contamination or that could account for the area of free product. The contamination at the storm drain on the west side of the maintenance facility resulted from direct discharges of contaminants to the storm drain and catch basin and was not a result of a discharge from a storage tank. The contamination in the area of the two tanks used for new motor oil and transmission fluid also contains lead, cadmium, and chromium. The metals contamination at this area is a result of discharge to the storm drain, and is not the result of discharge of new motor oil or transmission fluid from the two tanks. The groundwater in the area around these two tanks is also contaminated by dissolved oil and grease. The dissolved oil and grease plume is consistent in terms of substance and concentration with the dissolved waste oil to the east of the building. Within that plume of dissolved oil and grease there is also a small plume of free product. There is no waste oil tank on the west side of the maintenance facility that could account for waste oil contamination at that location. The dissolved oil and grease plume on the west side of the maintenance facility is most likely the result of waste oil discharge to the catch basin. The tanks containing new motor oil and transmission fluid may have contributed to the small free product plume in that area as a result of overfilling, but any such contribution was only a minor part of the overall contamination. In reviewing an application for eligibility for reimbursement, the Department looks at the relative importance of eligible and ineligible portions of a contaminated site. In cases where a potentially eligible source is minor in comparison to an overall otherwise ineligible contamination site, the Department's policy is to treat the entire site as ineligible. This policy is based on the fact that as a practical matter it is not possible to clean up one part of a contaminated site without affecting any adjacent contaminated areas. For the same reason, if the majority of a contaminated site is eligible, but it contains minor ineligible sources, the Department's policy is to treat the entire site as eligible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final order in this case concluding that the contamination area at issue in this proceeding is not eligible for reimbursement under Section 376.3071(12), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. MICHAEL M. PARRISH 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 15th day of June 1989.
Findings Of Fact Frank Gish operates Gish's Exxon service station, which is located at 400 Ridgewood Avenue, Holly Hill, Florida. Gish's Exxon service station purchases all of its gasoline from the Respondent, Widmaier Oil Company. On or about February 17, 1982, one of the Department's employees performed a routine inspection at Gish's Exxon service station. Samples were taken from each of the station's gasoline pumps and forwarded to a mobile laboratory. One of the samples taken was from the pump labeled "Exxon Unleaded." An examination of this sample was performed on the same date. The lead content of the sample was found to be .09 grams per gallon. After this analysis was performed, the remainder of the sample was forwarded to the Department's laboratory in Tallahassee for more detailed examination. Personnel at the Department's laboratory in Tallahassee performed a precise X-ray examination of the sample. American Society for Testing Materials standards were applied in conducting the examination. The lead content of the sample was found to be .098 grams per gallon. The Department's rules require that gasoline sold as unleaded gasoline may not contain more than .05 grams of lead per gallon Rule 5F-2.01(1)(j), Florida Administrative Code. The Department's testing techniques have a "reproducibility factor" or error factor of up to .034 grams per gallon. Thus, the Department does not take action based upon tests that it runs unless the tests reveal a lead content of more than .084 grams per gallon. The samples taken from Gish's Exxon service station exceeded this amount, and a "Stop Sale" order was issued. Widmaier Oil Company posted a bond in the amount of one thousand dollars ($1,000) with the Department, so that the gasoline could be sold as "leaded gasoline." Widmaier Oil Company has agreed to accept responsibility for the selling of any illegal product as might be determined in this proceeding. No evidence was offered at the hearing from which it could be determined how the unleaded gasoline being sold at Gish's Exxon service station came to have an excessive lead content. Respondent contended that the gasoline may have been contaminated by the Petitioner's agents wrongly placing samples of gasoline that had been taken from a leaded pump into the unleaded tank. This contention is not supported by any evidence, and it appears that the samples taken by the Respondent's agents were not sufficient in volume to have raised the lead content in the unleaded tank to a level that would have violated the Department's standards.
Findings Of Fact On February 10, 1978, a petroleum inspector, David Potter, in carrying out his routine inspection, took a gasoline sample for analysis of unleaded gasoline from the Easy Shopper Store located on U. S. 41 South, Brooksville, Florida. This sample was tested by the state laboratory at Tallahassee, Florida, and on February 17, 1978, the Tallahassee laboratory notified Mr. Potter that the unleaded gasoline was illegal in that in contained .240 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the Respondent Department's regulation. On the basis of this information, Potter went to the Easy Shopper Store and placed a stop-sale notice on the tank that dispensed unleaded gasoline. On this same date, February 17, 1978, the Petitioner was allowed to deliver 1200 gallons of unleaded gasoline in an effort to reduce the lead content already existing in the tank. Another sample was taken from the tank after the 1200 gallons was added, and it was dispatched for analysis. On February 20, 1978, Potter was notified by Tallahassee laboratory that the lead content in subject tank contained .520 grams per gallon and was therefore illegal. On the basis of this, the Petitioner, James R. Wilkes, was allowed to post a bond in the amount of $507.91 for the value of 834 gallons that was sold by Easy Shopper Store from the last delivery before the first sample and the stop-sale. The Petitioner was then allowed to pump out the illegal unleaded gasoline and put it in a regular tank to be sold as regular gasoline. On March 13, 1973, Mr. Potter sampled the Petitioner's unleaded product at Huey's Service Station located at U. S. 19 South, Inverness, Florida. The unleaded gasoline sample was dispatched to the Tallahassee Laboratory, and the analysis indicated that the lead content was .069 grams per gallon established by the Respondent's Department's regulations. As a result of the analysis of the gasoline sample, Mr. Potter placed a stop-sale against Huey's Service station's unleaded gasoline tank, and the Respondent posted a bond of $206.70 which was the value of the gasoline sold before the stop-sale. Upon the posting of the bond the Petitioner was allowed to pump out the remaining gasoline and refill the tank with a new product. The contaminated product that was recovered by the Petitioner from Huey's Service Station was delivered on February 15, 1978, in the amount of 500 gallons, and on March 1, 1978, in the amount of 300 gallons. On or about March 3, 1978, the Petitioner discovered the cause of the gasoline contamination. He found a leak from the No. 3 compartment to the No. 4 compartment on his delivery truck, which caused the regular gasoline to mix with the unleaded gasoline. Promptly upon discovery of the leaking compartment, the Petitioner had the tank compartments repaired by the Tank Welding & Service Company, Inc., located in Tampa, Florida. There is no dispute as to the facts, and the only connection on the part of Petitioner is that although the gasoline was contaminated it was not an intentional act of the Petitioner, and he feels he should not be penalized in the amount of $507.91 and $206.70 under the circumstances of this case. Respondent contends that Section 525.06, Florida Statutes. does not allow for any discretion on the part of the Respondent in its confiscation of the remaining contaminated gasoline, other than the agreement between participating parties which allowed the Petitioner to post bonds in the amount of $507.91 and $206.70, which is the value of the gasoline Petitioner dispensed to the public at Easy Shopper Store and Huey's Service Station. Respondent contends that most similar incidents are non-intentional.
Recommendation It is recommended that upon payment by the Petitioner of $507.91 and $206.70, respectively, the bond of the Petitioner be cancelled and this case be closed DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1979. COPIES FURNISHED: Robert A. Chastain, Esquire Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304 James R. Wilkes, Marketer American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512 Mr. John Whitton Bureau of Petroleum Inspection Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304
The Issue The issue in this case is whether, under Section 57.111, Florida Statutes, Respondent is liable for attorneys' fees and costs incurred by Petitioner in an earlier proceeding. The purpose of the earlier proceeding was to determine the eligibility of Petitioner's site for state-administered cleanup of discharge from a petroleum storage system under the Early Detection Incentive program described in Section 376.3071(9), Florida Statutes.
Findings Of Fact Petitioner informed Respondent of a pollutant discharge at Petitioner's gasoline station by filing a Discharge Notification Form on March 9, 1987. The form states that the discovery was made on March 5, 1987, as a result of a manual test of one or more monitoring wells. The form is marked "unknown" in response to questions concerning the estimated gallons lost, the part of storage system leaking, the type of tank, the cause of leak, and the type of pollutant discharged, although next to the last response are the typewritten words: "appears to be motor oil." A cover letter from Petitioner dated March 5, 1987, accompanied the Discharge Notification Form. The letter restates that the source of pollution is unknown, but adds that "there is a possibility that [the pollution] is the result of a septic tank, drain field discharge." The letter discloses that Blackhawk Environmental Services, Inc. ("Blackhawk") and NEPCCO/IT are investigating "to determine the extent of the contamination as well as the source." The letter provides the name and telephone number of the Blackhawk employee for further information. A separate cover letter from the Blackhawk employee to Respondent states that the notification was being submitted for consideration for Site Rehabilitation Reimbursement Costs. The letter also states that the site has been the subject of groundwater contamination from an "unknown source." Following the notification, Orlando Laboratories, Inc. submitted to Blackhawk a written analysis of the groundwater at the site. The report, which is dated March 19, 1987, contains quantitative data without any interpretation and was submitted without interpretation to Respondent on March 20, 1987. Petitioner applied to participate in the Early Detection Incentive ("EDI") Program by filing an EDI Program Notification Application dated March 23, 1987, together with a cover letter of the same date. The application supplied no more information than did the notification form. In response to the question as to the type of product discharged, Petitioner circled the choice, "used oil," but added the word, "possibility." Although the application may not have been immediately filed, Respondent received it prior to July, 1987. As part of a site inspection, an employee of Respondent prepared an Early Detection Incentive Program Compliance Verification Checklist, which was dated April 28, 1987. The checklist notes that Blackhawk "is looking into problem [and] will forward results from lab when available." The checklist also states: Odor found in E[ast] & W[est] M[onitoring] W[ells]. No other contamination found on site. Site has old waste oil tank on site that could possibly be contaminating drainfield next to tank. Also old abandoned tank (since 1967) on site. Asked owner to investigate tank's conditions. If not needed, he will remove & adjust registration accordingly. Floordrain in shop area dumps into on-site septic tank which could also contribute. The repeated mention of motor oil is due to at least two factors. First, a Blackhawk employee had mentioned to Belvin Marr, who owns and operates Petitioner, that the contaminant "looked like" motor oil. Second, Mr. Marr knew that he had, for many years, discarded used motor oil down a floordrain leading into a septic tank with an onsite drainfield. By letter dated July 22, 1989, Respondent informed Petitioner that its site was ineligible for state-administered cleanup under for the EDI program described in Section 376.3071(9), Florida Statutes. The letter states that the decision was "based upon information given in this [Notification Application] and a compliance verification evaluation of your reported site." The July 22 letter explains that the site is ineligible because, according to the application and district inspection: the source of contamination at Marr's Exxon has been attributed to used oil. Petroleum, as defined by Section 376.301(9), Florida Statutes (F.S.), included [sic] only crude oil and other hydrocarbons in the form in which they are originally produced at the well. Petroleum product, as defined by Section 376.301(10), F.S., means fuel in its refined state which is similar in nature to fuels such as diesel fuel, kerosene, or gasoline. Used oil cannot be considered "petroleum" or "petroleum products" because it has become unsuitable for its original purpose due to the presence of impurities or loss of original properties. Therefore, your site, which is contaminated by unrefined used oil, is not eligible for participation in Early Detection Incentive (EDI) Program. The July 22 letter advises Petitioner that he could obtain administrative and judicial review of the decision by filing a petition within 21 days of the date of receipt of the letter. The letter thus provided Petitioner with a clear point of entry. By letter dated July 30, 1987, Petitioner requested a 30-day extension to allow for retesting. Additional testing took place in early August, 1987. However, there is no indication that the resulting data, which again omit textual interpretation, were submitted to Respondent until the filing of the more definite statement described in the following paragraph. The next communication between Petitioner and Respondent took place when Petitioner requested a formal hearing by filing a Petition for Hearing dated August 26, 1987. By Order for More Definite Statement entered September 14, 1987, Respondent ordered Petitioner to file a more definite statement. By Response to Order for More Definite Statement dated September 28, 1987, Petitioner filed a more definite statement. The additional test data were attached to the more definite statement, although they are not in the DOAH case file. The Response offers the following chronology with all dates being approximate dates. March 5, 1987: Respondent notified of groundwater contamination from unknown source. March 20, 1987: analysis of contamination conducted by Orlando Laboratories, Inc. and forwarded to Respondent. March 23, 1987: Petitioner applied for participation in Early Detection Incentive ("EDI") program, and the application is attached to the More Definite Statement. April 27, 1987: Compliance Verification checklist issued. July 22, 1987: Respondent denied Petitioner's application. July 30, 1987: Petitioner requested 30-day extension to conduct further testing, the results of which are attached to the More Definite Statement. August 26, 1987: Petitioner requested formal administrative hearing. Following receipt of the more definite statement, Respondent forwarded the pleadings to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a hearing. The pleadings were received on October 9, 1987, and the file was assigned DOAH Case No. 87-4448. In a Motion for Continuance filed on January 14, 1988, Respondent asserted that the case involves the issue whether "used oil," which was what had been discharged at Petitioner's facility, is a "petroleum product." The motion refers to a pending case, Puckett Oil v. Department of Environmental Regulation, and states that this case, which had been heard in September, 1987, involves the same question. By Motion for Continuance filed on May 13, 1988, Respondent requested a continuance on the same grounds as previously cited and represented that Petitioner had no objection. An internal memorandum of Respondent dated March 17, 1988, acknowledges that Petitioner requested a review of the available data based on an "inaccurate assessment by his contractor." Reviewing the data, some of which had been provided after July 22, 1987, the memorandum notes that the majority of the contamination is from gasoline, but the involvement of the drainfield as the source of contamination "is the reason eligibility was denied." After the issuance of the final order in Puckett Oil v. Department of Environmental Regulation, 10 FALR 5525 (September 1, 1988), Respondent, filing a Motion to Set Hearing Date, disclosed that "[Respondent's] review of the Final Order indicates that Petitioner's site remains ineligible for SUPER Act funding." However, on July 28, 1989, the parties filed a fully executed Joint Stipulation and Motion to Dismiss. An Order Closing File, which was entered the same date, returned the matter to Respondent for final disposition consistent with the stipulation. The Joint Stipulation and Motion to Dismiss states: On July, 22, 1987, [Respondent] denied eligibility for the [EDI] Program, Section 376.3071(9), Florida Statutes, to [Petitioner's) site . . .. The basis for the denial was that the site was contaminated with used oil. Subsequent to [Respondent's] denial, Petitioner conducted a series of ground water tests to more accurately determine the nature and extent of contamination at the site. The results of that testing indicate that the site was contaminated with significant amounts of gasoline constituents and minor amounts of used oil constituents emanating possibly from a septic tank drainfield and a used oil storage facility. The gasoline constituents exist at levels many times that of the other constituents. Based upon the overwhelming contribution to the overall contamination presented by the gasoline constituents, [Respondent] agrees that the presence of minor amounts of contaminants from something other than a tank should not preclude [Petitioner's] site from being eligible for the EDI Program. [Respondent reserves the right not to pay for the cost of cleanup of contamination not related to discharge from a tank.] WHEREFORE Petitioner . . . and Respondent request that the hearing officer adopt this stipulation . . . and retain jurisdiction for an award of attorney's fees and costs (Fla. Stat. Sect. 57.111 (1986 Supp.) and Fla. Admin. Code Rule 22I-6.035). . .. The parties stipulated that Petitioner was a small business party. The parties also stipulated to reasonable attorneys' fees of $6625 and costs of $4690. Following the final hearing, Petitioner filed supplemental affidavits showing, in connection with the prosecution of the subject case and not the earlier proceeding, additional attorneys' fees of $1875 and costs of $490.85.
The Issue Whether or not the agency may, pursuant to Section 525.06 F.S., assess $390.04 for sale of substandard product due to a violation of the petroleum inspection laws and also set off that amount against Petitioner's bond.
Findings Of Fact Coleman Oil Co., Inc. d/b/a Shell Oil Co. at I-75 and SR 26 Gainesville, Florida, is in the business of selling kerosene, among other petroleum products. On November 15, 1990, Randy Herring, an inspector employed with the Department of Agriculture and Consumer Services and who works under the direction of John Whitton, Chief of its Bureau of Petroleum, visited the seller to conduct an inspection of the petroleum products being offered for sale to the public. Mr. Herring drew a sample of "1-K" kerosene being offered for sale, sealed it, and forwarded it to the agency laboratory in Tallahassee where Nancy Fisher, an agency chemist, tested it to determine whether it met agency standards. The testing revealed that the sampled kerosene contained .22% by weight of sulfur. This is in excess of the percentage by weight permitted by Rule 5F- 2.001(2) F.A.C. for this product. A "Stop Sale Notice" was issued, and on the date of that notice (November 20, 1990) the inspector's comparison of the seller's delivery sheets and the kerosene physically remaining in his tanks resulted in the determination that 196 gallons of kerosene had been sold to the public. Based on a posted price of $1.99 per gallon, the retail value of the product sold was determined, and the agency accordingly assessed a $390.04 penalty. The agency also permitted the seller to post a bond for the $390.04 on November 21, 1990. The assessment is reasonable and conforms to the amount of assessments imposed in similar cases.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the $390.04 assessment and offsetting the bond against it. DONE and ENTERED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of April, 1991. COPIES FURNISHED TO: CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 510 MAYO BUILDING TALLAHASSEE, FL 32399-0800 MR. RANDAL W. COLEMAN COLEMAN OIL COMPANY POST OFFICE BOX 248 GAINESVILLE, FL 32602 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
The Issue There are three legal issues which remain for determination: (1) Whether Florida Petroleum has standing in this case; (2) Whether proposed rule 62-770.220(3)(b), requiring constructive notice to residents or business tenants of real property into which the temporary point of compliance is allowed to extend is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes; and (3) Whether proposed rule 62-770.220(4), requiring additional constructive notice of the status of site rehabilitation is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes.i
Findings Of Fact On December 23, 2004, the Department published a Notice of Proposed Rulemaking regarding amendments to Florida Administrative Code Chapter 62-770. In particular, proposed rule 62-770.220(3)(b) and (4), provides: Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance (TPOC) - Prior to the Department authorizing a temporary extension of the point of compliance beyond the boundary of the source property (i.e., the location from which the contamination originates) in conjunction with Natural Attenuation Monitoring pursuant to Rule 62-770.690, F.A.C., or Active Remediation pursuant to Rule 62-770.700, F.A.C., the PRSP shall provide the following notices: * * * (b) Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62- 770.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Such constructive notice, which shall include the same information as required in the actual notice, shall be provided by complying with the following: * * * Status Update 5-Year Notice - When utilizing a TPOC beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to [the classes of] those persons who received notice pursuant to subsection 62-770.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. * * * (The language in brackets was added pursuant to the Department's Notice of Change and "those" was deleted.) The proposed rule implements Section 376.3071, Florida Statutes. The specific authority for the proposed rule is Sections 376.303 and 376.3071, Florida Statutes. On February 2, 2005, the Environmental Regulation Commission held a public hearing on the proposed rules and approved the proposed rules with certain amendments. On February 14, 2005, Florida Petroleum filed a Petition for Determination of Invalidity of Proposed Rule (Petition) challenging the validity of proposed amendments to proposed rule 62-770.220(3)(b) and (4). The Petition was filed pursuant to Section 120.56(1) and (2), Florida Statutes, and in each instance, Florida Petroleum alleges that the proposed rule violates Section 120.52(8)(c), Florida Statutes. On March 4, 2005, the Department published a Notice of Change regarding the above-referenced Notice of Proposed Rulemaking. With respect to the pending proceeding, the Notice of Change reflects revisions to language of proposed rule 62- 770.220(4), which are not subject to challenge. See Finding of Fact 1. On May 16, 2005, without objection, official recognition was taken of the Department's Notice of Proposed Rulemaking and Notice of Change. Florida Petroleum is a Florida voluntary, non-profit trade association, which comprise, in part, approximately 194 Marketer Members who own and/or operate petroleum storage system facilities in Florida. Florida Petroleum’s purposes include providing representation on behalf of its members in legislative and regulatory matters before the Florida legislature and agencies. Florida Petroleum routinely represents its members in rule development proceeding and other regulatory matters before the Department of Environmental Protection, Department of Revenue, and Department of Agriculture and Consumer Services. Florida Petroleum’s By-Laws state that its purposes include advancing the business concerns of its members, pooling the energy and resources of its members, and communicating with elected officials at the national, state, and local levels of government. Towards those ends, Florida Petroleum has represented it members before the Florida Legislature in matters relating to the regulation of petroleum facilities under Chapter 376, Florida Statutes, and has appeared before the Department in rulemaking proceedings involving the regulation of petroleum cleanups, and the various state restoration funding assistance programs. The subject matter of the rule at issue is within the general scope of interest and activity of Florida Petroleum, in particular, its marketer members, who own or operate facilities that store petroleum products for consumption, use, or sale. Florida Petroleum submitted oral and written comments, recommendations, objections, and proposed amendments to the Department and the Environmental Regulation Commission in connection with the rules at issue in this case. A substantial number of Florida Petroleum marketer members are "persons responsible" for assessment and remediation of one or more petroleum-contaminated sites. Florida Administrative Code Chapter 62-770, governs the remediation of petroleum-contaminated sites. A substantial number of Florida Petroleum’s marketer members are "persons responsible" for assessment and remediation of sites identified by the Department as "confirmed" or "suspected" sources of contamination beyond the boundary of the facility (i.e., "off-site contamination"). In certain instances, the Department's rules allow for the use of No Further Action with Conditions procedures in cases of petroleum contamination where applicable regulatory requirements are met because the use of conditions, such as institutional and engineering controls, may be more cost- effective than active remediation. As of February 2005, the Department estimated that it had reports of approximately 23,000 petroleum-contaminated sites. In 2004, the Department received an estimated 539 Discharge Report Forms in connection with petroleum storage facilities. As of March 2005, the Department had information indicating that approximately 2,000 "off-site" properties have been affected by contamination. Assessment Reports filed with the Department indicate that a substantial number of these sites may have been affected by discharges of petroleum or petroleum products. Petroleum discharges will in all likelihood continue to occur in the future at petroleum facilities. Petroleum discharges will in all likelihood continue to affect off-site properties in the future.
