Findings Of Fact Petitioner owns and operates a gasoline station located at 4625 U.S. 27 North, Davenport, Florida. The site was constructed in late 1986 and opened in early 1987. The underground tanks storing the gasoline are connected by pipes running underground to the pumps from which the gasoline is dispensed. A small portion of the underground supply pipe is accessible from the surface through a manhole. The excavated area exposing the pipe and what appears to be a valve are separated from the surrounding soil by a large, cylindrical corrugated pipe laid perpendicular to and above the underground supply pump. The leak in question was caused when the lower edge of the corrugated pipe cut into the underground supply pipe for the premium gasoline. The cut was caused by the cumulative effect of vehicular traffic driving over the manhole cover, placing pressure on the corrugated pipe, and eventually forcing the edge of the corrugated pipe to rupture the underground supply pipe with which it was in contact. Petitioner owns and operates a large number of gasoline stations. This incident is the first time that a corrugated pipe has cut into an underground supply pipe. The use of the corrugated pipe is not at issue in the present case. Pursuant to company policy, station employees complete a daily recap each day and forward the recap document to Petitioner. Part of the recap document is devoted to "gas inventory." The daily recap, which covers the preceding 24 hours, requires that an employee determine the amount of gasoline in each underground storage tank, adjust the figure for amounts sold and delivered, and then compare the figure to the amount determined to have been in the tank 24 hours earlier. This reconciliation is normally completed by mid- to late-morning each day. A station employee "sticks" each tank to determine how much gasoline it contains. The procedure requires that the employee insert a pole into the bottom of an underground tank. By observing the length of the pole dampened by gasoline, the employee can calculate approximately the amount of gasoline in the tank. Although stick reading results in an approximation, the results are fairly accurate, leaving at most, in the case of this 12,000-gallon tank, a margin of error of 50 gallons. "Sticking" normally takes place daily between 6:30 a.m. and 7:00 a.m. On the morning of March 6, 1988, which was a Sunday, the employee sticking the tank calculated that the premium tank held 5419 gallons. There had been no deliveries during the preceding 24 hours. During the same period, the station had sold 914 gallons of premium gasoline. However, the last sticking 24 hours earlier had disclosed 7989 gallons. A total of 1656 gallons were thus unaccounted for. The recap document requires that the station notify Respondent's "Dist. Mgr. immediately if shortage of 500 gallons or more appears." The employee failed to do so. On the morning of March 7, 1988, the employee sticking the premium tank calculated that it held 2147 gallons. During the preceding 24 hours, there had been no deliveries and 826 gallons of premium gasoline had been sold. Consequently, 2446 gallons were missing, for a total of 4102 gallons over the past two stickings. As soon as the reconciliation was completed, the employee contacted Respondent's management, which ordered that the pump be shut down during the afternoon of March 7, 1988. Comparing the sales of premium gasoline for the 24- hour period ending March 8 with those ending March 7, which are comparable because the sale of regular gasoline on those two days is almost identical, the station sold about 39% of a normal day's sales of premium gasoline. Reflecting the shutdown of the premium pumps on March 7, the employee sticking the tank on the morning of March 8, 1988, found 593 gallons. During the preceding 24 hours, there had been no deliveries and sales of 321 gallons of premium had been sold, leaving 1233 gallons unaccounted for. The total over the three stickings was 5335 gallons lost. The station had previously not experienced losses even approaching this magnitude. The daily recap for the 24-hour period ending on March 5, 1988, showed no significant loss. Although fluctuations in volume may occur shortly after deliveries due to temperature differentials, such fluctuations could not reasonably have accounted for these vast discrepancies. Theft, measurement errors, and recording errors may also account for variations in readings, but not of the magnitude and repetition involved in this case. Between the time of the reconciliation on the morning of March 6 and the system shutdown on the afternoon of March 7, the system continued operating and, thus, leaking for 28-30 hours. Given that 2446 gallons were lost during the 24-hour period ending on March 7 and 1233 gallons lost during about 9 hours on March 8, at least 100 gallons per hour were escaping from the pipe during these last 28-30 hours, for a total of between 2800 and 3000 gallons. For reasons discussed in the Conclusions of Law, the actions and omissions of the station employees following the reconciliation of inventory figures on March 6 constituted gross negligence in the maintenance of a petroleum storage system. These actions and omissions were in the scope of employment. During the relevant period of time, none of Respondent's employees performed monthly checks of the monitoring wells to determine the presence of leaks. This failure was due to ignorance and was not wilful. This failure in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, the monitoring wells had not been properly grouted to prevent introduction of surficial contamination. However, this failure was unknown to Petitioner, which had hired a contractor to construct the wells and reasonably had relied on the contractor to grout properly the monitoring wells. The improper grouting in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, Petitioner was not performing weekly or five-day averages of inventory records concerning gasoline. The failure to perform these reconciliations in no way contributed to the leak or to any delay in discovering the leak. Following the discovery of the leak, Petitioner notified Respondent on March 8. Petitioner requested approval to participate in the Early Detection Incentive Program by filing a Notification Application dated March 29, 1988. On July 14, 1988, Respondent completed the Pollutant Storage Tank System Inspection Report Form and Early Detection Incentive Program Compliance Verification Checklist. These documents indicate that Respondent was not monitoring monthly its monitoring wells, failed to grout properly its monitoring wells, was not performing the weekly or five-day averages of inventory (although it was taking daily inventory and reconciling opening and closing inventories), and did not immediately investigate the 1600-gallon shortage disclosed on the morning of March 6, 1988. By letter dated September 30, 1988, Respondent notified Petitioner that its site was ineligible for state-administered cleanup under the Early Detection Incentive Program. The letter cited as reasons the wilful failure to perform monthly checks of the monitoring well, the failure to immediately investigate discrepancies in inventory records while the system continued to operate after initial discovery of the 1600-gallon loss, and the improper construction of the monitoring well with respect to the improper grouting. The letter concludes that these items constitute gross negligence in the maintenance of a petroleum storage system, which precludes participation in the program.
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. RECOMMENDED this 26th day of March, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 26th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1561 Treatment Accorded Proposed Findings of Petitioner 1-4: adopted. 5-6: adopted in substance. 7-16: adopted. 17: rejected as unsupported by the greater weight of the evidence. 18-20: adopted or adopted in substance. 21: to the extent that this proposed finding suggests that Petitioner was performing the five-day or weekly averaging, rejected as unsupported by the greater weight of the evidence. However, in view of the findings and conclusions contained in the Recommended Order, rejected as unnecessary. 22-26: adopted. Treatment Accorded Proposed Findings of Respondent 1-4: rejected as conclusions of law. 5-6: adopted. 7-16: rejected as subordinate. 17: rejected as an inference unsupported by the greater weight of the evidence. 18-26: adopted. 27: rejected as irrelevant. 28-29 and 31: rejected as legal argument. 30: adopted. 32: adopted. 33: adopted except that the system was shut down at some point into the day of the second sticking showing a significant shortage. 34-38: adopted or adopted in substance. 39: rejected as speculation. 40: rejected as irrelevant. 41-42: adopted. 43: rejected as irrelevant. 44-45: rejected as subordinate. 46: adopted. 47-49: rejected as subordinate. 50: adopted. 51-53: rejected as vague with respect to reference to "Racetrac." 54: adopted. 55: rejected as cumulative. 56-57: rejected as unnecessary. COPIES FURNISHED: 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 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven M. Mills Decker & Hallman Suite 1200 Marquis II Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Michael P. Donaldson Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether or not Respondent failed to reasonably honor a warranty relating to the installation and repair of a septic tank system.
Findings Of Fact Petitioner, the Department of Health and Rehabilitative Services, is the regulatory agency which regulates the installation and prescribed standards for on-site sewage disposal systems. Respondent, Alan Billings d/b/a Billing's Liquid Waste Removal, is a Florida entity registered and authorized by Petitioner to provide septic tank contracting services. On or about February 12, 1992, Respondent performed a septic tank repair at a two bedroom residential home located at 13904 Summers Avenue, in Hudson, Pasco County, Florida. Respondent's repairs consisted of adding 100 square foot of drainfield to the existing system, three yards of rock, cover paper, pipe, and a distributor box. Respondent provided the repairs as he agreed to on or about February 11, 1992. Installation of the additional drainfield by Respondent was proper and based on the size of the home (a two bedroom house), it was adequate for the building's normal requirement. Petitioner's expert, Van Kampen, testified without contradiction that the septic tank system repairs by Respondent were proper and was attached to an existing system which further added to the capacity of the system. The added capacity was far in excess of the particular purpose required for the home if used by a family of four. Based on the size of the home in which Respondent made the repairs, the maximum water usage anticipated would have been 4500 gallons of water per month. Documentary evidence introduced herein indicates that during the months in question, the average water usage at the subject home exceeded 11,000 gallons per month. The unexpected usage caused a "hydraulic overload" of the system, and was not within Respondent's expectations when he repaired it. Van Kampen related that the family that resided in the home consisted of seven (7) members. Respondent was unaware of that fact nor was he apprised of this fact until subsequent to the repairs when the system failed due to a hydraulic overload. Respondent did not offer a warranty to cover the "hydraulic overload" which is at issue herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order dismissing the administrative complaint filed herein. DONE AND ENTERED this 4th day of February, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of February, 1994. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ron Smith, Esquire 12360 66th Street North Largo, Florida 34643 Shirley K. Hart, Esquire HRS District V Legal Office 11351 Ulmerton Road, Suite 407 Largo, Florida 34648-1630
The Issue The issue for determination is whether Rule 17 Administrative Code (1991), constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-8., below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), Florida Administrative Code, which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property in the early 1970's, Thomas had installed four petroleum storage systems in a four tank pit on the property. Thomas later registered all four of the tanks with Respondent by the statutory deadline of December 31, 1984, as required by Florida law. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. Sometime in the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991, by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. A 20 foot soil boring as near as possible to the site of the southernmost tank revealed that unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. The hole discovered in one of the tanks at the time of removal was likely located in the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991). Respondent held Petitioner's application for a total of almost nineteen months before issuance of a formal decision to deny the application on February 26, 1993. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code.
The Issue Whether Petitioner, Department of Community Affairs (the Department), is legally precluded in this proceeding from taking agency action to enforce the reporting and fee provisions required pursuant to Chapter 252, Part II, Florida Statutes, against Respondent, Goodson Paving, Inc., for the reporting years of 1989 through 1994, inclusive, by operation and application of Section 95.011 and Section 95.11(3)(f), Florida Statutes (statute of limitations); and, Whether the Department is legally and equitably precluded in this proceeding from taking agency action to enforce the reporting and fee provisions required pursuant to Chapter 252, Part II, Florida Statutes, against Respondent for the reporting years of 1989 through 1994, inclusive, by operation and application of Section 95.11(6), Florida Statutes (doctrine of laches).
Findings Of Fact The Florida Hazardous Materials Emergency Response and Community Right to Know Act (the Act), Part II, Chapter 252, Florida Statutes, was first passed in 1988. The purpose of Act is to provide information to response personnel in an emergency regarding the type of chemicals and substances that might be present at a facility. The outreach program conducted by the Department of disseminating information to facilities which potentially may be required to report was initiated in 1988 and continued into 1989. It included mass mailings to over 100,000 facilities; conduct of regional seminars, which were advertised in newspapers; establishment of an Internet site; publishing a how-to-comply handbook; and working with local communities and other state agencies. There are approximately 15,000 to 16,000 active facilities reporting under various sections of the Act. The Department did not contact Respondent during the outreach program. Respondent has been located at 5855 Industrial Drive, Cocoa, Florida, since April 1989. Respondent reported the following number of employees to the Florida Department of Labor and Employment Security for unemployment compensation tax purposes for the last month of each year, from 1989 through 1998: 1989 24 1990 22 1991 25 1992 30 1993 31 1994 35 1995 37 1996 40 1997 44 1998 45 Respondent is in the business of site contracting and road building/construction and uses diesel fuel which it stores on-site for fueling its trucks and construction equipment. Respondent does not distribute the diesel fuel or offer it for retail sale. The site located at 5855 Industrial Drive, Cocoa, Florida, has been an asphalt plant and road construction office since approximately 1949. Respondent stores on-road diesel fuel and off-road diesel fuel at the site for self-use for completion of contracted projects. The Brevard County Fire and Rescue Department performs annual inspection of Respondent's site at 5855 Industrial Drive, Cocoa, Florida, as well as inspection of the shop, the office, and the storage tanks. Respondent has completed and filed the State of Florida Department of Environmental Protection Storage Tank Registration forms and the State of Florida Environmental Protection Plant Storage Tank System Inspection Report for every year of operation since at least 1991. Respondent completed and filed the State of Florida Department of Environmental Protection Storage Tank Facility Compliance Inspection Report for the year 1999 on September 8, 1999. Respondent received the State of Florida Department of Environmental Protection Storage Tank Placard issued in July of 1999 with an expiration date on June 30, 2000. Respondent is in possession of the requisite State of Florida Storage Tank Third Party Liability and Corrective Action Policy Declarations with an effective date of January 1, 1999. Respondent has maintained uninterrupted insurance for the on-site tanks since 1989. Respondent pays a State of Florida Pollutant Tax on each gallon of diesel fuel purchased through its supplier, Coastal Refining and Marketing, Inc. The tax is collected by the supplier and remitted to the State of Florida. The State of Florida Department of Environmental Protection Storage Tank Facility Compliance Inspection Reports are filed with the State of Florida Department of Environmental Protection in Tallahassee, Florida. The Brevard County Fire and Rescue Department is aware and informed of the chemicals and type of operation located at Respondent's site at 5855 Industrial Drive, Cocoa, Florida. The only chemicals possessed by Respondent at the site at 5855 Industrial Drive, Cocoa, Florida, are the aforementioned diesel fuel tanks, motor oil, hydraulic oil, and four one-gallon cans of paint. Respondent does not manufacture asphalt or maintain liquid asphalt at the site at 5855 Industrial Drive, Cocoa, Florida. Prior to receiving the April 2, 1999, Notice of Violation and Intent to Assess Late Fee, Respondent had not had contact with The Department. Respondent has filed the requisite monthly reports to the State of Florida Department of Revenue and has paid the requisite road and fuel tax to the State of Florida Department of Revenue since incorporation. Respondent, Goodson Paving, Inc., does have a current, valid Occupational License issued by Brevard County, Florida. Respondent's diesel fuel storage containment system is built to the code issued by Brevard County and is approved by the Brevard County Inspectors each year. Prior to receiving the April 2, 1999, Notice of Violation and Intent to Assess a Late Fee from the Department, Respondent, in the previous ten or eleven years, has had annual inspections conducted by the Brevard County Fire and Rescue Department and the other county inspectors; has paid taxes to the State of Florida Department of Revenue; and has had a valid Occupational License. Respondent was not informed of the obligation to report under Part II of Chapter 252, Florida Statutes. On April 8, 1999, Respondent received the Department's Notice of Violation and Intent to Assess a Late Fee dated April 2, 1999. Respondent timely requested an administrative hearing regarding the Department's April 2, 1999, Notice of Violation and Intent to Assess Late Fee, pursuant to Section 120.569, Florida Statutes, and implementing rules. The staff of the Department's Division of Emergency Management Compliance Planning Section who administer the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Act of 1988 are also responsible for assisting the Division's Emergency Operations Center during activations for disasters such as hurricanes or fires. During activations, the routine hazardous materials program duties are subservient to other Division of Emergency Management duties. Respondent suffered no prejudice from the timing of the Department's April 1999 Notice of Violation and Intent to Assess a Late Fee since: (1) the annual inventory forms are required by federal law; (2) Respondent was able to complete the forms based upon available information; and (3) no interest, late fee, or other adverse financial impact will result if the annual fees are timely paid in response to the notice. Respondent is responsible for the fee obligations under the statutes and rules for the years 1989-1998, in the total amount of $832.50.
Recommendation That the Secretary of the Department of Community Affairs enter a final order which holds that: Respondent is responsible for reporting diesel fuel in excess of the threshold planning quantity pursuant to 42 U.S.C. Section 11022 and Sections 252.85 and 252.87, Florida Statutes, for the years 1989-1998 inclusive; and for the fee obligations under Section 252.85, Florida Statutes, and Rule 9G-14.003(3), Florida Administrative Code, for the reporting years 1989-1998, inclusive. Respondent owes the Department annual registration fees totaling $832.50 if the reports and fees are submitted within thirty days of the Department's final order in this matter. Respondent can be assessed additional late fees if all required reports, fees, and late fees are not timely paid, in accordance with Section 252.85(4)(b)3, Florida Statutes. DONE AND ENTERED this 1st day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1999. COPIES FURNISHED: Ross Stafford Burnaman, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100 Douglas W. Baker, Esquire John H. Evans, P.A. 1702 South Washington Avenue Titusville, Florida 32780 Jim Robinson, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue Whether Petitioner is entitled to participate in the Reimbursement Program established under the State Underground Petroleum Environmental Response (SUPER) Act of 1986 for the petroleum terminal owned by Gulf Products Division of BP Oil Company at Port Everglades, Florida.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 provides for the expeditious cleanup of sites contaminated as the result of storage of petroleum or petroleum products. The Reimbursement Program, found in Section 376.3071(12), Florida Statutes, provides for reimbursement of the allowable costs of site rehabilitation contaminated as a result of a discharge related to the storage of petroleum or petroleum products from a storage tank, or its integral piping or dispensing system. The Reimbursement Program does not provide for reimbursement of cleanup costs for discharges related to the transportation or disposal of petroleum or petroleum products. The site at issue in this proceeding is a terminal facility used for the storage of petroleum and petroleum product located at 1500 Southeast 26th Street, Port Everglades, Florida. This facility is referred to as Gulf Facility No. 46888 and DER Facility No. 068732278 (Gulf Terminal). The subject terminal facility is one of fourteen petroleum storage terminals located at Port Everglades, Florida. Petroleum and petroleum products come to the terminal by ship and are pumped from the ship through permanent pipelines to the large aboveground storage tanks located at the facility. The petroleum and petroleum products are stored in these large tanks until it is time for the product to be distributed to the end user. The Gulf Terminal contains eighteen storage tanks whose total capacity is 650,000 barrels of petroleum or petroleum products. These tanks vary in size, with the smallest having a capacity of 10,000 barrels and the largest having a capacity of 80,000 barrels. One barrel equals 42 gallons. The primary activity of the terminals at Port Everglades is to store petroleum or petroleum products. None of the terminals at Port Everglades, including the Gulf Terminal, refines or produces petroleum or petroleum products. Operation of this facility began in 1946. Petitioner, as the successor to the Gulf Oil Corporation, owned and operated the facility until February 1, 1985, when it sold the facility to BP Oil, Inc. As the previous owner of the facility, Petitioner performed an environmental audit which revealed petroleum hydrocarbon contamination at the site. Petitioner is responsible for the cleanup and is entitled to reimbursement of the allowable costs of the cleanup if the site is eligible to participate in the reimbursement program. Any contamination of the soil and groundwater at the site was caused by discharges of petroleum or petroleum products, water contaminated with petroleum or petroleum product or sludges which consist predominately of petroleum or petroleum product constituents. Based on hydrogeological assessment information, Petitioner determined that response action, including ground water cleanup activities, was required at the site. Petitioner hired independent contractors to conduct the response action. In 1986, Petitioner designed a recovery system for petroleum and petroleum product and a ground water treatment system at the site. Through February, 1989, the recovery system had recovered over 12,000 gallons of petroleum or petroleum products, which constitutes the recovery of between 60%- 70% of the total amount in the ground. Through November 1989, Petitioner had expended in excess of $560,000 on its response action at the Gulf Terminal. Petitioner advised Respondent of its response action at the site by letter dated January 6, 1988. Petitioner submitted documentation to Respondent concerning hydrogeological assessment at the site which included field and laboratory work and investigation performed for the site from 1984 to the present. Pursuant to the requirements of SUPER Act, Petitioner notified Respondent of its intention to seek reimbursement for money spent conducting response action in accordance with Chapter 17-70, Florida Administrative Code, with regard to petroleum and petroleum product contamination at the site. Petitioner's notice to Respondent was timely and was procedurally correct. On July 13, 1989, Respondent issued its Order of Determination of Ineligibility concerning Petitioner's request for reimbursement. As stated in this order the initial basis for Respondent's denial of eligibility was: The determination is based on the fact that the contamination was not related to the storage of petroleum or petroleum products. Sources of contamination at this site include tanker trucks, an oil/water separator, a holding pond, and crude oil and tank-bottom sludge disposal pit. These items are not petroleum storage systems as defined in Section 376.301 F.S. therefore (sic), this site is not eligible for reimbursement under the SUPER Act. ... Respondent clarified its Order of Ineligibility by a Notice to Amend and Clarify dated November 14, 1989, which provides, in pertinent part, as follows: The notice of denial provides that the site is being denied due to the fact that the disclosed sources of contamination are not petroleum storage systems. One of the criteria for being a petroleum storage system is that it be used or intended to be used for storage of petroleum or petroleum product. It is the criteria that the Department contends is not met in this case; i.e., that the discharges were not intended for storage. Section 376.3071(4), Florida Statutes, specifically limits the use of the Environmental Protection Trust Fund to incidents of inland contamination related to storage of petroleum or petroleum product. * * * The Department recently became aware that prior to 1983, contaminated water was disposed of directly from tanks at the site with no pretreatment by an oil/water separator. As with the disposal of oil and sludge to a pit, the act of intentionally disposing of contaminants to the ground is not "related to storage" as required by Chapter 376, Florida Statutes. * * * Wherefore, The State of Florida Department of Environmental Regulation hereby requests that the Hearing Officer allow for the amendment of the notice of denial of eligibility to include the following basis for denial: Contamination at the site is related to the disposal of petroleum or petroleum product, or water contaminated with petroleum or petroleum products. Disposal activities including the intentional discharge and disposal of contaminated water and/or fuel from tanks, oil water separators and sump areas, the intentional discharge and disposal of contaminated water to a percolation pond, the intentional discharge and disposal of oil and sludge to a disposal pit, and the intentional discharge and disposal of fuel to the ground at the loading rack. Among the causes of contamination of the Gulf Terminal are accidental overfills of tanks and leaks from an integral pipeline. Absent any other source of contamination, the discharges that occurred at the Gulf Terminal due to these causes would be eligible for the reimbursement. Respondent has determined, however, that the following additional sources of contamination render the entire response action ineligible for reimbursement: Discharges of dissolved hydrocarbon molecules contained in water which accumulated in storage tanks; Discharges of petroleum or petroleum products at the loading rack at the terminal; and The discharge of crude oil and of crude oil tank bottoms. TANK OVERFILL During the operation of the Gulf Terminal, petroleum and petroleum products have been accidentally discharged onto the ground. In 1955, an unknown quantity of petroleum or petroleum products was accidentally discharged onto the ground in the areas of tanks 104 and 105 as a result of these tanks being over- filled. Following this massive spill, between 5,000 - 10,000 barrels of product was recovered, while an unknown quantity could not be recovered. PIPELINE LEAK Since 1955, approximately 15,000 additional barrels of petroleum or petroleum products were leaked from an underground pipeline that is integral to the storage system in an area between the loading rack and tank 101, extending toward the west to between tanks 110 and 102. This is the vicinity where the heaviest free floating petroleum contamination exists. DISCHARGE OF CONTAMINATED WATER Florida has adopted the standard code for the design of aboveground storage tanks prepared by the American Petroleum Institute (API-650). The tanks at the Gulf Terminal are in compliance with API-650. The accumulation of water in storage tanks is a problem associated with the storage of petroleum or petroleum products in the storage tanks at the Gulf Terminal and at the other terminals at Port Everglades. Water accumulates in the storage tanks from rainfall and from condensation. The records of the US Department of Commerce, National Oceanic and Atmospheric Administration for Station 08063163 (Fort Lauderdale, Florida) accurately depict the rainfall levels at the terminal facility. The total annual rainfall levels are as follows: 1980, 69.67 inches; 1981, 57.9 inches; 1982, 82.92 inches; 1983 75.16 inches; 1984, 59.4 inches; 1985, 63.74 inches; 1986, 64.14 inches, 1987, 58.50 inches; 1988 40.66 inches. Because water is heavier than petroleum and petroleum products, the water accumulates at the bottom of the tanks. It is essential to the proper storage of the petroleum or petroleum products that the water be removed for at least three reasons. First, if the water is not removed, the tanks would eventually become filled with water instead of product. Second, the product contaminated by water, particularly fuel for motor vehicles and aircraft, would not meet specifications. Third, water in the tanks speeds the corrosion of the tank. In order to remove this water that accumulates at the bottom of the storage tanks, a water draw-off mechanism located at the bottom of the tank is a design feature of API-650. When water accumulates in the bottom of the tank, the water is drained out through the water draw-off mechanism. The storage tanks located at the Gulf Terminal are equipped with such a water draw-off mechanism. Throughout the existence of the facility, accumulated water in the tanks has been controlled by discharging the water through the water draw-off mechanism. From 1948 to 1980, water was drained out of the tanks through the water draw-off mechanism and on to the ground. Beginning in 1980, the water was taken from the tanks through the water draw-off mechanism and piped to a catch basin where an effort was made to recover petroleum product by skimming the water before the water was discharged into the ground. Since 1985, the water taken from the tanks through the water draw-off mechanism has been treated by an oil/water separator which effectively removes all petroleum product before the water is discharged. The purpose of the oil/water separator is to separate petroleum product from water so that the petroleum product can be returned to the storage tank and the water can be discharged. This process serves to prevent the discharge of petroleum product. Up to 1988, the discharges to the ground from the oil/water separator at the Gulf Terminal accumulated in a holding pond. In 1988, the holding pond was eliminated and the water discharges from the oil/water separator were routed to a holding tank prior to treatment by an air stripper and subsequent discharge into the canal adjacent to the property. At all times since 1983, the water drawn out of the tanks has been the subject of permits issued by Respondent which approve the use of the oil/water separator. While it is necessary for the operation of the storage tanks that water be drawn from the tanks, it is not necessary for the operation of the storage tanks for the contaminated water to be discharged onto the ground. The purpose of discharging the water was to dispose of it. There was no intent to recover the contaminated water after it was discharged. Any water coming out of a storage tank is contaminated with dissolved petroleum. It may have solids in it and floating residue or product on it. Between 1946 and 1980, when this water from the storage tanks was discharged to the ground, any contaminates in the water would be discharged along with it. Water has been drained from tanks numbered 101, 106, 109, 110, 111, 112 113, and 114 on a daily basis. The other tanks are drained after a rainfall. An average of one or two inches of water was drained off each time it rained. Following a rainfall, in excess of 30 barrels of water would be drained from the smaller tanks, while approximately 300 barrels of water would be drained from the larger tanks. The discharge of the water drawn from the storage tanks contributed to the contamination of the groundwater at the Gulf Terminal. This type contamination exists in almost all areas of the site. Petitioner was unable to distinguish the contamination to the groundwater caused by the discharge of contaminated water drawn from the storage tanks from contamination to the groundwater which resulted from other causes. Petitioner failed to establish that the contribution to this contamination to the groundwater by the discharge of the contaminated water drawn from the storage tanks was insignificant. THE LOADING RACK The loading rack at the Gulf Terminal is the apparatus by which the petroleum in the storage tanks is dispensed to tanker truck for distribution to consumers. The loading rack is a series of dispensers which operate much like at a service station except that it fuels tanker trucks rather than automobiles. The loading rack is connected by permanent integral piping to the storage tanks. The purpose of the loading rack is to load the transport trucks. Without the storage tanks at the terminal, there would be no need for a loading rack. Over the years, discharges have occurred in the loading rack, usually as the result of human error. Occasional overfills in the 10-15 gallon range have occurred while a truck was being filled. This type discharge is analogous to a spill which occurs at a service station when an automobile is being fueled and the fuel splashes back or overfills the automobile's fuel tank. The supervisor of Respondent's Reimbursement Section testified that this type discharge, absent other causes, would probably be eligible for reimbursement. This testimony conflicts with the official position taken by Respondent in this proceeding that the cleanup caused by the operation of the loading rack is ineligible for reimbursement. In other incidents, small amounts of product ranging from a teacup to less than a gallon, were occasionally discharged while a truck was being drained of one type of product so that the truck could transport another type of product. The loading rack is an integral part of the storage system because without a means of moving the product out of storage and into the distribution system, the storage tanks could not provide a meaningful function. The discharges which occurred at the loading rack during the course of both loading and unloading trucks are insignificant when compared with the other sources of contamination at the site. TANK BOTTOMS In 1956, a storage tank was emptied for the purpose of switching product from crude oil to diesel fuel. At the time the change in product was made, approximately 1000 barrels of sludge and crude oil were disposed of in a pit adjacent to tank 101. Also disposed of was the tank bottom, a hard tar residue which formed at the bottom of the tank. Oil occasionally oozes to the surface in the vicinity of the pit adjacent to tank 101, but the area around the sludge pit has not been found to be contaminated, and the tank bottom has remained a hardened mass. Each tank on the site also had a pit alongside the tank where a tank bottom was disposed. Although it was necessary to remove the sludge and the tank bottoms to be able to properly operate the storage tanks, it was not necessary for the operation of the storage tanks to dump the sludge and the tank bottoms onto the ground or into the pits. The purpose of discharging the crude oil sludge and the tank bottoms was to dispose of them. There was no intent to recover the crude oil sludge or the tank bottoms water after they were discharged. CONTAMINATION PHASES The contamination at the site exists in three phases, floating petroleum product contamination, dissolved petroleum groundwater contamination, and sludge contamination. The contamination in the form of floating petroleum was caused by discharges of petroleum or petroleum products following the tank overfills, the pipeline leaks, and spills at the loading rack. The dissolved groundwater contamination was caused by two primary sources. First, the dissolved groundwater contamination was caused by floating petroleum product coming into contact with groundwater. Upon such contact, molecules from the floating petroleum would dissolve into the water, causing contamination. Second, the dissolved groundwater contamination was caused by the discharge of the contaminated water that had been drawn off from the storage tanks. Petitioner was unable to distinguish the dissolved groundwater contamination that was caused by accidental discharges of product from the contamination caused by the discharge of the contaminated water. Petitioner was also unable to establish that the dissolved groundwater contamination caused by the contaminated water was insignificant. The sludge contamination was caused by the discharge of crude oil and crude oil tank bottoms. CLEANUP The sludge contamination is capable of being cleaned up separately from the free floating petroleum contamination and the groundwater contamination at the site. The sludge contamination is separate and distinct from the other contamination at the site both as to the location of the contamination and as to the methods that would be employed to clean up that type of contamination. Free floating petroleum contamination is recovered by drawing down the water level in a well by use of a pump so that a cone of depression is created. The cone of depression is a funnel shaped depression that causes the surface of the underground water table to bend down towards the well in all directions. The free floating petroleum which flows on top of the underground water surface is then recovered by use of a second pump. The free floating petroleum is then pumped into a holding tank where the recovery of free floating petroleum is completed. The recovery of free floating petroleum contamination is usually more expensive to accomplish than groundwater cleanup because more equipment is required. Groundwater cleanup usually takes a longer period of time to accomplish than does free floating product cleanup. The same or a similar well used to recover the free floating petroleum can also be used for the cleanup of contaminated groundwater. The contaminated groundwater is pumped from the well into an oil/water separator where the water and dissolved petroleum is separated, water is taken off the bottom, put through an air stripper, and is returned to the ground through an infiltration unit. Respondent has previously found sites eligible for the reimbursement program even though those sites experienced discharges which alone would render a site ineligible for the reimbursement program. The basis for finding these sites eligible was that the ineligible discharges had become indistinguishable from the eligible discharges and were insignificant by comparison. Petitioner has complied with all procedural requirements for seeking eligibility contained in Section 376.3701, Florida Statutes. Respondent has not been denied access to the Gulf Terminal. Respondent has made no determination that there has been gross negligence in the maintenance of the petroleum storage system locate at the Gulf Terminal. Petitioner has not willfully concealed the existence of a serious discharge at the Gulf Terminal. Petitioner has not falsified any inventory records maintained with respect to the Gulf Terminal. Petitioner has not caused any intentional damage to the Gulf Terminal. The Gulf Terminal is not owned by the federal government. Petitioner's challenge to Respondent's order of ineligibility was filed in a timely manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Respondent enter a final order which determines that the subject site is eligible to participate in the reimbursement program for the cleanup of the free floating petroleum contamination, but that the subject site is ineligible to participate in the reimbursement program for the cleanup of the sludge contamination and for the cleanup of the groundwater contamination. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE 89-4521 The following rulings are made on the proposed findings of fact submitted by Petitioner in its Supplemental Proposed Recommended Order. The proposed findings contained in paragraphs 1-16, 18-25, 27-30, 33, 36-42, 44, 47-50, and 53-54 of the Supplemental Proposed Recommended Order are adopted in material part by the Recommended Order. The proposed findings contained in paragraphs 17, 31-32, 46, and 51-52 of the Supplemental Proposed Recommended Order are rejected as being contrary to the findings made and to the conclusions reached. The proposed findings contained in paragraph 26 of the Supplemental Proposed Recommended Order are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings contained in paragraph 34 of the Supplemental Proposed Recommended Order are rejected as not being established by the greater weight of the evidence. The testimony cited by Petitioner in support of these proposed findings do not establish the proposed findings. The proposed findings conflict with the contents of the Report of Ground-Water Quality Assessment accepted into evidence as Respondent's Exhibit 1. The proposed findings contained in paragraphs 35 , 43, and 45 of the Supplemental Proposed Recommended Order are rejected to the extent the proposed findings conflict with the findings made and the conclusions reached. The following rulings are made on the proposed findings of fact contained in Respondent's Proposed Recommended Order and in Respondent's Supplemental Proposed Recommended Order. The proposed findings of fact in paragraphs 1-5, 7-19, 23, 25-31, 33-34, 39- 52, 55-68, and 70-72 of Respondent's Proposed Recommended Order are adopted in material part. The proposed findings of fact in paragraphs 6, 20-22, 24, 32, 35-38, and 69 of Respondent's Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. The proposed findings of fact in paragraphs 53 and 54 of Respondent's Proposed Recommended Order are rejected because the testimony referred to by Respondent in support of the proposed findings relates to amounts discharged following rainfalls, not amounts discharged daily. The proposed findings of fact in paragraphs 1-14 of Respondent's Supplemental Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. COPIES FURNISHED: E. Gray Early, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert W. Wells, Esquire Ignacio E. Sanchez, Esquire KELLEY, DRYE & WARREN 2400 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether proposed amendments to Rules 17-761.200, 17-761.500 and 17- 761.510, Florida Administrative Code, are arbitrary and capricious, and therefore, constitute an invalid exercise of delegated legislative authority? Whether the economic impact statement accompanying the proposed amendments to Chapter 17-761, Florida Administrative Code, was adequate? Whether the Department of Environmental Regulation properly considered the impacts of the proposed amendments to Chapter 17-761, Florida Administrative Code, on small and minority business pursuant to Sections 120.54(2)(a) and (3)(b), Florida Statutes?
Findings Of Fact The Parties. The Department is an agency of the State of Florida. The Department is responsible for, among other things, regulating underground petroleum storage tank systems in the State of Florida. Chapter 376, Florida Statutes. FPMA is a voluntary, nonprofit trade association comprised of 190 voting members who sell and distribute petroleum products on a wholesale and retail basis in Florida. FPMA also includes nonvoting associate members who provide equipment and technical services to FPMA members. FPMA's members include entities which are "small businesses" (approximately 18 to 20%) within the meaning of Section 288.703(1), Florida Statutes, and/or who sell petroleum products to customers that store petroleum products and constitute "small businesses." A substantial number of FPMA's members also include owners and operators of petroleum storage facilities with bare steel tanks and/or with storage tanks that currently are not equipped with secondary containment. A substantial number of FPMA's members operate in rural areas. FPMA's purposes include providing representation before the Florida Legislature and agencies. Background and History. The Water Quality Assurance Act, Chapter 83-310, Laws of Florida, was enacted by the Legislature in 1983. This Act gave the Department the authority to promulgate rules regulating the construction, maintenance, installation and removal of underground storage tanks. Section 376.303(1)(a), Florida Statutes. The Act also preempted local regulation of the prevention and removal of pollutant discharges unless a local ordinance had been adopted prior to September 1, 1984, or the local effort is approved by the Department. Section 376.317, Florida Statutes. Dade County, Florida, had adopted an Underground Storage Facilities Ordinance, Ordinance 83-108. Ordinance 83-108 imposed storage tank requirements depending on the location in Dade County relative to identified wellfield protection areas and zones of influence around potable well supplies. Ordinance 83-108 requires replacement of underground petroleum storage tanks by certain dates depending on when existing tanks were installed. The Ordinance also takes into account whether a tank is made of corrosion resistant materials. See proposed finding of fact 3 of the Petitioner's Proposed Final Order for some of the specific requirements of Ordinance 83-108. Dade County Ordinance 91-33 amended the requirements of Ordinance 83- 108. Ordinance 91-33 requires secondary containment for new underground petroleum storage tanks installed in Dade County 180 days after the effective date of Ordinance 91-33 but does not require the replacement of existing single- walled tanks not located in a zone of influence or which are on property served by a public utility. Broward County, Florida, adopted Chapter 27-10, in May, 1984, regulating underground storage tanks. Chapter 27-10 contains less stringent requirements than those required by the rules at issue in this proceeding. See proposed finding of fact 5 of the Petitioner's Proposed Final Order for some of the specific requirements of Chapter 27-10. In May, 1984, the Department promulgated Chapter 17-61, Florida Administrative Code. These rules regulated underground (and aboveground) storage tanks on a statewide basis, with two exceptions (Dade and Broward Counties). Rule 17-61.060(2)(b), Florida Administrative Code, required that new underground storage tanks and piping be constructed of corrosion-resistant materials, and be installed with overfill protection and monitoring systems. This Rule also prohibited the use of new bare steel tanks and integral piping containing motor vehicle fuels. Rule 17-61.060(2)(c), Florida Administrative Code, required that existing underground storage tanks be retrofitted with monitoring systems and overfill protection beginning December 31, 1986, and ending December 31, 1989, depending on the age of the tank. Rule 17-61.060(2)(c) and (3), Florida Administrative Code, also required that existing bare steel underground tanks and piping be replaced with corrosion-resistant systems on a schedule beginning December 31, 1989, and ending December 31, 1998, depending on the age of the tank. As an alternative, bare steel tanks could be retrofitted with internal lining or cathodic protection, and bare piping could be retrofitted with cathodic protection. Rule 17-61.060(2)(b)-(c) and (3), Florida Administrative Code. In adopting Chapter 17-61, Florida Administrative Code, the Department exempted facilities which did not receive, store, or use more than 1,000 gallons in any calendar month or more than 10,000 gallons in any calendar year. Rule 17-61.040(1), Florida Administrative Code. In adopting this exemption the Department indicated that "[v]ery small users are considered to pose a smaller risk and are not anticipated to contribute as significantly to contamination of groundwater across the state." The Department also indicated that the businesses being exempted included agricultural businesses, small businesses and other commercial activities and governmental installations. Finally, the Department indicated that it had developed the retrofitting schedules to allow for the exhaustion of the useful life of existing systems. In October, 1985, Alachua County, Florida, filed a petition with the Department for approval of its local storage tank ordinances, Ordinances 85-7 and 85-13. Alachua County required secondary containment for underground storage systems. The Department approved the ordinances conditioned upon Alachua County amending them to take into account concerns the Department expressed concerning the ordinances. In particular, the Department questioned whether Alachua County should require secondary containment for all of the County without taking into account the differences in the groundwater throughout the County. The Department also questioned the schedule for requiring secondary containment. For more specific complaints raised by the Department see proposed finding of fact 8 of the Petitioner's Proposed Final Order. Alachua County subsequently adopted a new storage tank ordinance, Ordinance 87-10. Ordinance 87-10 required secondary containment for new facilities and extended the retrofit schedule for existing facilities. The extended schedule took into account to hydrogeology of the location of the storage tank and the proximity to public water supply wells. Existing corrosion-resistent tanks were allowed twenty years from installation if overfill protection and leak detection were installed. Congress banned the installation of most new bare steel storage tanks. They were banned by the Resource Conservation and Recovery Act. The United States Environmental Protection Agency (hereinafter referred to as the "EPA"), was ordered to adopt regulations governing underground storage tanks. On September 28, 1988, the EPA promulgated 40 CFR 280. These regulations required, among other things, that: new underground storage tanks be constructed of corrosion-resistant materials; existing bare steel tanks must be upgraded by December 22, 1990; and, existing tanks may be replaced by corrosion- resistant materials, may be internally lined or protected by cathodic protection. The EPA also promulgated 40 CFR 281, authorizing the approval by the EPA of state storage tank programs which are no less stringent that the EPA's requirements. On June 8, 1990, the Environmental Regulation Commission adopted Chapter 17-761, Florida Administrative Code. These rules, which were adopted to bring Florida's storage tank program into compliance with the regulations adopted by the EPA in 1988, imposed new construction requirements on underground storage systems. In light of the fact that some of the requirements of Chapter 17-761, Florida Administrative Code, were more stringent than those imposed by the EPA, the Governor and Cabinet were required by Section 403.804, Florida Statutes, to approve the rules. On October 9, 1990, the Governor and Cabinet considered the new rules. ManaSota-88, Inc., appeared at the meeting and requested that the Governor and Cabinet limit the definition of secondary containment to double- walled tanks and piping, and to move up the date requiring secondary containment for the installation of new and replacement tanks from December 31, 1998, to December, 1990. The Governor and Cabinet approved Chapter 17-761, Florida Administrative Code (hereinafter referred to as the "Existing Rules"), and "recommended" that the Environmental Regulation Commission "review" ManaSota-88, Inc.'s, recommendations. On January 10, 1991, the Department held a public workshop before the Environmental Regulation Commission to receive public comment on several alternative changes to the Existing Rules developed as a result of ManaSota-88, Inc.'s, suggestions to the Governor and Cabinet. New information concerning the environmental or technological necessity of amending the Existing Rules was not provided at the workshop. On February 8, 1991, the Department caused notice of rule making to be published in Volume 17, Number 16, Florida Administrative Code, amending the Existing Rules (the proposed amendments will hereinafter be referred to as the "Proposed Amendments"). On March 1, 1991, FPMA filed a Petition to Determine Invalidity of Proposed Rules challenging the validity of the Proposed Amendments. On March 14, 1991, the Environmental Regulation Commission, following a public hearing, adopted the Proposed Amendments with certain changes not relevant to this proceeding. Members of the FPMA testified at the public hearing. The Requirements of the Existing Rules and the Changes Thereto of the Proposed Amendments. Generally, the Existing Rules require owners and operators of underground vehicular fuel storage tanks to upgrade their underground storage tank systems to include secondary containment according to a schedule which takes into account the date of installation of an existing storage tank or whether the tank is a new storage tank. "Secondary containment" under the Existing Rules is defined as a system used to improve release detection and release prevention and includes double-walled tanks, double-walled integral piping systems or a single-walled tank or integral piping system protected by an outside liner. For petroleum storage systems, secondary containment consists of a primary container composed of fiberglass or steel. The primary container is surrounded by an outer wall or liner. New Underground Storage Tanks. Under the Existing Rules new underground storage tanks (other than those used to store hazardous substances) installed between December 10, 1990, and December 31, 1998, may be single-walled tanks if they are corrosion- resistant. A storage tank is considered to be corrosion-resistant under the Existing Rules if it is a single-walled fiberglass tank, a tank with an internal lining or a tank with cathodic protection. New underground storage tanks installed after December 31, 1998, must be constructed with secondary containment under the Existing Rules. Under the Existing Rules, any new underground storage tank installed as a replacement for an underground storage tank during the existing life of the tank could be a single-walled tank if it was corrosion-resistant. The Existing Rules also provide that new storage tanks may not be installed within 50 feet of an existing potable water supply well. Secondary containment must be installed for any new, upgraded or replacement tank located within 300 feet of an existing private, public or noncommunity water supply system. These requirements were not changed by the Proposed Amendments. Under the Proposed Amendments, all new underground storage tanks installed after December 31, 1991, must be installed with secondary containment. New tanks that are corrosion resistant are not allowed under the Proposed Amendments. Replacement tanks under the Proposed Amendments also must be installed with secondary containment. Existing Underground Storage Tanks. Existing single-walled underground storage tanks must be replaced with secondary containment under the Existing Rules by certain dates, which depend on whether the existing tank has corrosion protection. The replacement dates recognize the useful life of the existing tanks being replaced. Under the Existing Rules, an existing underground storage tank was to be upgraded with an internal lining if the integrity of the tank is assured, it is tightness tested and it otherwise meets applicable standards. As an alternative, an existing tank was to be upgraded with cathodic protection if the structural integrity of the tank is certified after inspection and the tank is tightness tested. Finally, an existing tank could be upgraded with a combination of internal lining and cathodic protection. Cathodic protection is a device that utilizes an electrochemical process to protect the external surface of a metal tank against corrosion. Depending on the useful life of an existing underground storage tank, the Existing Rules require that existing tanks that were corrosion resistant or internally lined be replaced with secondary containment by December 31, 2012, 2015 or 2018. Existing underground storage tanks which are upgraded with cathodic protection must be replaced with secondary containment under the Existing Rules by December 31, 1989. Pursuant to the Proposed Amendments, existing steel tanks that have not been lined or that do not have cathodic protection prior to December 31, 1991, must be replaced with secondary containment by December 31, 1992, 1995 or 1998, depending on the age of the tank. Existing underground storage tanks that are made of corrosion resistent materials, that have been lined or that were initially installed with cathodic protection prior to December 31, 1991, must be replaced with secondary containment by December 31, 2009, under the Proposed Amendments. Existing tanks with field-installed cathodic protection must be replaced with secondary containment, depending on the age of the tank, by December 31, 1992, 1995 or 1998, under the Proposed Amendments. Under the Existing Rules and the Proposed Amendments, underground petroleum storage tanks are ultimately required to be installed with secondary containment. The Existing Rules allow the use of alternative forms of protection (corrosion resistant single-walled tanks, liners and/or cathodic protection) during a period of time beginning on the effective date of the Existing Rules and ending December 31, 2018. The Proposed Amendments substantially speed up the time schedule for secondary containment. The alternative forms of protection allowed under the Existing Rules may still be used, but only if installed before December 31, 1991. Justification for the Proposed Amendments. Petroleum storage systems, including underground storage tanks, can and do leak petroleum for a number of reasons, including failure of tanks and lines. There are 2,295 permitted petroleum storage facilities in Dade County. Of these facilities, approximately 1,614, or just over 70%, have petroleum contamination. The Dade County Department of Environmental Resources Management conducted a study of the cause of the petroleum contamination at 50 randomly selected permitted petroleum storage facilities. Based upon a review of these 50 sites, the source of contamination at 13 of the sites (26%) was discernible. The source of contamination at the other 37 sites could not be determined. Of the 13 sites for which the Dade County Department of Environmental Resources Management was able to determine the source of contamination, tank failures were identified as the source of contamination at 10 of the sites (20% of the total sites reviewed) and lines were the source of contamination at the other 3 sites. Five of the tank failures involved bare steel tanks, one involved a fiberglass coated steel tank, two were fiberglass tanks and one was a fiberglass tank with a liner. None of the 13 tank failures were attributable to double-walled steel or double-walled fiberglass tanks. There are in excess of 10,000 petroleum contamination sites located throughout the State of Florida that have been reported to the Department. These sites have been ranked by the Department based on fire and explosion hazards and the proximity of the contamination sites to drinking water wells. Some of the contamination sites reported to the Department for cleanup have been caused by leaking underground petroleum storage tanks. The Department's petroleum contamination cleanup standards are based on whether groundwater is considered to be of G-II quality. A G-II classification for groundwater includes all groundwater in aquifers suitable for potable water use. Such aquifers are considered to have a total dissolved solids content of less than 10,000 mg/1. Groundwater in Florida of G-II quality includes groundwater in both the surficial aquifers and the Floridan aquifer. The Department considers the quality of water in any aquifer that will produce water as having potential resource value regardless of whether it is currently used for potable drinking water. Therefore, contamination in such aquifers must be cleaned up to G-II quality. Petroleum contamination in Florida has affected every aquifer of G-II quality in the State. Ninety-two percent of Florida's drinking water is provided by groundwater. The Inland Protection Trust Fund was created in October, 1986, to provide funds for the cleanup of petroleum contamination (benzine) sites in Florida. Since that time, the Department has spent approximately $1,600,000.00 for the restoration and replacement of petroleum contaminated potable drinking water. Since October, 1986, 225 water supply wells (public and private) in Florida have been contaminated with benzine to the extent that action was necessary to correct the contamination. Eight of the 225 wells were used for municipal water. These 8 wells have been restored or replaced. Approximately 44 potable drinking water wells serving mobile homes, restaurants and service stations, (or noncommunity public water systems), and 143 private wells have been contaminated with petroleum and have been restored or replaced. Use of secondary containment systems of storing petroleum allows monitoring of the interstitial space between the primary container and the secondary external barrier of the storage tank. Interstitial monitoring methods include: (a) placing a probe inside the space which detects and responds to the product stored or vapors therefrom; (b) filling the space with liquid and monitoring the level of the liquid; and (c) creating and monitoring a vacuum in the space, which allows monitoring of both walls. There is a high probability that the use of secondary containment will facilitate the detection of petroleum leaks in a storage tank before the petroleum escapes the secondary containment into the environment. Interstitial monitoring in a secondary containment system greatly reduces the number of factors which can interfere with petroleum leak detection. For example, interstitial monitoring provides an opportunity to distinguish new leaks from existing contamination. Secondary containment represents the best underground petroleum storage tank technology currently available. Leak detection for a single-walled tank provides detection of a leak of petroleum contamination after the contamination has entered the environment. Double-walled secondary containment tanks are stronger than single- walled tanks. Therefore, double-walled tanks are less prone to flex and, consequently, are less prone to crack than a single-walled tank. Each wall of a double-walled tank provides protection from physical damage for the other wall not provided in single-walled tanks. Cathodic protection provides protection from external corrosion of metal storage tanks. It does not, however, provide leak detection in the manner that secondary containment does. Cathodic protection systems are generally not warranted because their effectiveness depends on the operation and maintenance of the system by the tank owner. Internal linings are used for either preventive maintenance or to repair existing underground storage systems. Internal linings do not prevent external corrosion unless cathodic protection is also provided. Internal linings provide a barrier to petroleum release. Internal linings extend the life of a storage tank system for at least 10 years. If the tank is also cathodically protected, the life of the tank is warranted for 20 years. Internal linings do not provide leak detection in the manner that secondary containment does. The Proposed Amendments Represent a Change in Policy. The record of the process of developing and adopting the Existing Rules indicates that the alternative forms of protection (use of corrosion- resistent tanks, internal linings and cathodic protection) included in the Existing Rules afford some protection to Florida's groundwater from petroleum contamination. In proposing the Existing Rules the Department supported the provisions of the Existing Rules concerning the use of alternative forms of protection and the schedules for implementing the use of secondary containment contained therein. At the time that the Existing Rules were presented to the Governor and Cabinet, the Department did not recommend that secondary containment be required in the manner that it has now provided for under the Proposed Amendments. In adopting the Proposed Amendments, the Department has not developed or obtained any additional information in support of the Proposed Amendments. Nor did ManaSota 88, Inc., provide any such information. The reason why the Department initiated the process of adopting the Proposed Amendments was that the Governor and Cabinet directed the Department to consider whether changes to the Existing Rules were needed. The foregoing findings of fact do not support a finding that the Proposed Amendments are arbitrary and capricious. At best, the record of the process of developing and adopting the Existing Rules and the requirements of the Existing Rules prove that a policy decision was made by the Department that the requirements of the Existing Rules were an acceptable method of dealing with petroleum contamination from underground storage tanks in Florida. The fact that the policy decision evidenced in the Existing Rules was made, however, does not prove that a policy decision to require the use of other methods of protection, i.e., secondary containment, is arbitrary and capricious. The record of the adoption of the Existing Rules does raise some question as to the propriety of adopting the more stringent requirements of the Proposed Amendments. That record, however, also adds support to the policy decision to adopt the more stringent requirements. First, although the Department accepted the use of alternative forms of protection when the Existing Rules were adopted, it still evidenced a policy decision that secondary containment is the preferred method of protecting Florida's waters. Additionally, the acceptance by the Governor and Cabinet of the policy decision evidenced in the Existing Rules was conditioned on a reconsideration of the use of the alternative forms of protection (at least for new tanks) which evidenced a willingness on the part of the Governor and Cabinet to make policy decisions which would more stringently protect Florida's waters. Although it is true that the Alachua, Broward and Dade County ordinances and the EPA's regulations are less stringent than the Proposed Amendments, these laws also support the use of secondary containment as the preferred method of protecting the environment from contamination from underground petroleum storage tanks. The evidence proved that there a range of methods available to provide varying degrees of protection to Florida's waters. The use of corrosion- resistant tanks, internal linings and/or cathodic protection provides better protection to Florida's waters than bare steel underground storage tanks. Therefore, these methods of protection are within the range of acceptable methods of protecting Florida's waters. The evidence also proved, however, that secondary containment is not only within the range of acceptable methods of providing protection to Florida's waters, but that it is the best method currently available. The evidence failed to prove that the policy decision of the Department evidenced in the Proposed Amendments is not within the range of reasonable methods of dealing with petroleum contamination of Florida's waters authorized and required by the Florida Legislature. Therefore, the decision to require the use of secondary containment of the Proposed Amendments is not arbitrary and capricious. The Economic Impact Statement and the Economic and Environmental Impact Statement. The Department, as required by Section 120.54(2), Florida Statutes, prepared an economic impact statement (hereafter referred to as the "EIS"), for the Proposed Amendments. The EIS was prepared by Clyde Diao, the Department's expert in environmental economics. The Department, as required by Section 403.804(2), Florida Statutes, also prepared an Economic and Environmental Impact Statement (hereinafter referred to as the "EEIS"). The EEIS consisted of a study of the economic impact of the Proposed Amendments and included the costs and benefits to the public of the Proposed Amendments. Dr. Diao also prepared the EEIS. The EIS and EEIS contain identical information, except that the EEIS also contains an analysis of the environmental impact of the Proposed Amendments. The following findings of fact only refer the EIS. To the extent relevant to this proceeding, the findings of fact concerning the EIS also apply to the EEIS except to the extent indicated otherwise. It is estimated in the EIS that the additional costs the Department may incur as a result of adopting the Proposed Amendments are expected to be minimal. The weight of the evidence failed to prove that this estimate impaired the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments. The following conclusions were included in the EIS concerning the impact of the Proposed Amendments on the installation of new underground storage tanks: It is recognized that the Proposed Amendments require that new tanks installed after December 31, 1991, have secondary containment instead of requiring secondary containment for new tanks installed after December 31, 1998, as provided under the Existing Rules. It is projected that even if new tanks were not required to have secondary containment until after December 1998, "investors intending to install underground storage tanks would most likely prefer to install secondary containment right away because it is more economical in the long run." In making this projection the Department recognized that "the immediate economic impact of having secondary containment might be greater than installing tanks with no secondary containment, . . ." but concluded that "long-run cost would likely be lower." In concluding that the long-run cost would be lower, the Department considered the difference in the cost of installing a tank with secondary containment with the cost of installing single-walled fiberglass tanks and steel tanks with cathodic protection. The Department estimated that the additional cost would be "in the range of 13.5% to 46.8% depending upon the type of tank used. . . ." It is pointed out that this additional cost, however, will "be a onetime expense to the facilities since they don't have to replace the double- walled tanks anymore." The Department, in concluding that the long-run cost would be lower, also relied upon its conclusion that insurance and monitoring cost associated with tanks installed with secondary containment would be lower in the long-run. The EIS indicates that the cost of insurance for a double-walled tank or a tank with a liner beneath it is about $200.00 per year as compared with $560.00 per year for a tank with no secondary containment. The EIS also indicates that the cost of groundwater monitoring wells or vapor monitoring devices of approximately $8,500.00 will be avoided by using tanks with secondary containment which will be required to have an interstitial monitoring device which cost approximately $1,000.00. Finally, the Department took into account the additional cost of ultimately replacing new underground storage tanks installed without secondary containment which will be incurred under the Existing Rules or the Proposed Amendments if secondary containment is not provided immediately in reaching its conclusion that it will be cheaper in the long-run to install new tanks with secondary containment. The Department included a cost comparison of the long-run cost of installing tanks with and without secondary containment in Annex I and Annex II to the EIS. Finally, the Department made the following finding in the EIS concerning the installation of new tanks: The only problem with requiring secondary containment by the end of 1991 instead of 1998 is that it gives the new underground storage tank owners a shorter period of time to generate the funds to install secondary containment. Smaller firms with lower financial leverage might have difficulty obtaining additional funds necessary to cover the incremental costs. This new requirement could have adverse effects on smaller gas stations that are already planned to be constructed in rural or remote areas where the market is very limited. The weight of the evidence failed to prove that these estimates impaired the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments. The Department did not make any specific findings in the EIS concerning the additional cost for new tanks which will be incurred in the short-term because of the acceleration of the date for which secondary containment will be required under the Proposed Amendments. See however, finding of fact 70.b., and 75.c., supra. The following conclusions were included in the EIS concerning the impact of the Proposed Amendments on existing tanks: The Department recognizes that "[t]he proposed requirements for existing underground storage tanks could have adverse economic impacts on some facilities, especially those with no corrosion protection and which were installed in 1981-1984 period." In reaching this conclusion, the Department recognized that owners of these tanks would not be able to "recoup their investments before the economic life of the tanks is reached." The Department's conclusion concerning the inability of facilities to recoup the useful life of existing underground storage tanks reasonably applies to almost all existing tanks. The Department recognized that approximately 731 of the owners of existing tanks (2,193 total tanks) constructed during the periods 1970-1975 and 1976-1980 will have to install secondary containment by 1992, and approximately 926 of such owners (2,778 total tanks) will have to install secondary containment by 1995, under the Proposed Amendments instead of the years 2012 and 2015, respectively, under the Existing Rules. These dates are extended to the year 2009 if corrosion protection is installed by December 31, 1991. The EIS indicates that the cost of adding corrosion protection is $2,500.00 to $4,000.00 per tank ($7,500.00 to $12,000.00 for a three tank facility). The EIS indicates that existing tank owners who do not install corrosion protection before December 31, 1991, "might experience economic hardship." The EIS estimates that, for "a typical facility with three tanks having a capacity of 10,000 gallons per tank, the replacement cost could be very high ranging from $101,500 to $107,000." This cost is compared to the $4,500.00 cost of adding internal lining or cathodic protection to an existing tank. The total cost of providing secondary containment for existing retailers is estimated to "range from $75 million to $79 million in 1992 and $94 million to $100 million in 1995." The EIS indicates the total cost could be higher if inflation is taken into account. Based upon these findings, the Department indicates in the EIS that "this could have some adverse economic impacts on some facilities which are currently struggling to survive under present economic conditions but are hoping to improve their business operations in the future." The Department recognizes that large suppliers will not experience the same difficulties as smaller facilities because of existing resources and the ability to pass on the additional costs to individual dealers. The Department also recognizes in the EIS that: smaller firms (gas stations) which are the recipient of this price hike could experience heavy financial strain. Since they operate in a highly competitive industry, they cannot just pass on any increase in the price of their products to the consumers without losing a certain part of their market share. Existing small gas stations without corrosion protection operating in rural areas where the market is small, might really be hurt financially by adoption of the proposed revisions. . . . The Department did not specifically address the costs of, or specify the total cost expected to be incurred for, replacing existing tanks with secondary containment in 1998, including those with field installed cathodic protection. Nor did the EIS specifically address cost which may be incurred by non-retail facilities in complying with the Proposed Amendments. The discussion in the EIS of some of the cost associated with existing tanks are more equivocal than the discussions of those costs in some of the internal documents utilized by the Department. The uses of "could" and "might" as opposed to "will" and "likely" did not impair the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments. The following conclusions were included in the EIS concerning the impact on competition and employment of the Proposed Amendments: The EIS indicates that the Proposed Amendments "might have some impacts on competition among existing underground storage tank owners and operators." In particular, the EIS indicates that some facilities "would have to either partly operate or shutdown their business for a while until the construction is done." During the time that facilities are partly operating or shutdown the Department projects that other facilities would have a competitive advantage and that employment would be adversely impacted. The EIS also indicates that smaller gas stations would be competitively disadvantaged by larger facilities because of their limited capitalization. The EIS concludes that "[s]ome [smaller facilities] may encounter difficulty in complying with secondary containment requirements." The EIS also indicates that competition will be enhanced between sellers/manufacturers of secondary containment materials at a much earlier date because the demand for such materials would increase much earlier. This same conclusion is reached with regard to businesses providing installation services associated with secondary containment. The EIS does not specifically address some of the costs which smaller facilities may be expected to occur as a result of the competitive advantage larger facilities will probably have in the short-run as a result of the Proposed Amendments. The EIS does not specifically discuss the competitive disadvantage to facilities which must replace tanks in 1995 or 1998. The EIS does not discuss the effect on competition between providers and installers of cathodic protection, single-walled corrosion resistant tanks or tank liners. The following conclusions were included in the EIS concerning the economic and environmental benefits of the Proposed Amendments: The Department indicates that "the new requirements would enhance protection of human health as well as to ground water resources of the State." Recognizing that it is difficult to quantify the economic benefits of the Proposed Amendments, the EIS indicates that "it can be strongly argued that the benefits would outweigh the costs in the long-run." It is concluded that the Proposed Amendments will prevent health hazards and groundwater contamination instead of relying on remedial solutions. The Department estimates that it is more economical to the public and to facility owners and operators to prevent contamination than to clean up contamination. It is estimated that the average cost of cleanup is approximately $200,000.00 per site. The Department also estimates that there are 56,018 underground storage tanks in Florida. Of these tanks, it is estimated that 10,500 are leaking underground fuel tanks, some of which are causing groundwater contamination. The Department has also estimated that 2,500 to 2,600 potable wells in Florida have been contaminated by petroleum storage systems. Because the groundwater level in Florida is very close to the surface, the Department indicates that discharge from a leaking tank will easily travel into the groundwater. The Department concludes that the Proposed Amendments will increase the protection of groundwater from potential contamination. The evidence failed to prove what the exact number of potable wells in Florida that have been contaminated by petroleum leaks. The evidence also failed to prove how many of the known petroleum contamination sites are attributable to underground storage tank leaks as opposed to other sources of leaks, i.e., overfill or pipe leaks. The weight of the evidence, however, failed to prove that the conclusions of the Department concerning the benefits of the Proposed Amendments are not reasonable or are so misstated as to be unreliable. The conclusions reached by the Department in the EIS concerning the benefits of the Proposed Amendments are consistent with the Legislatures intent set out in Chapter 376, Florida Statutes. The Department never conducts an econometric study in preparation of economic impact statements for proposed rules. Nor did the Department prepare such a detailed study in preparing the EIS in this case. As a consequence, there were a number of items of cost or amounts of cost which the Department did not specifically include in the EIS. Taking all of the facts concerning the EIS as a whole, based upon the conclusion that most of the economic impacts of the Proposed Amendments are fairly obvious and based upon the expression of Legislative intent found in Chapter 376, Florida Statutes, it is concluded that the evidence failed to prove that the EIS was so inadequate as to have impaired the fairness of the process or the correctness of the Proposed Amendments. Consideration of Small Businesses. In preparing the EIS, the Department assumed that a "small business" was any business with a net worth of $1,000,000.00 or less and which employed 25 or fewer employees. Small businesses in the petroleum industry often buy products from larger companies and are in competition with larger companies. It is recognized by the Department in several places in the EIS that small businesses will be adversely affected by the Proposed Amendments: It is recognized that small businesses will have difficulty raising capital and/or obtaining financing for the installation of secondary containment under the shorter time schedules of the Proposed Amendments; It is recognized that small businesses will have difficulty passing the cost of complying with the Proposed Amendments they incur on to consumers like larger facilities will likely be able to do; It is recognized that small businesses will be at a competitive disadvantage with larger facilities which are better able to obtain the funds necessary to pay the cost of complying with the Proposed Amendments; and It is recognized that rural facilities, which generally tend to be smaller facilities, will be adversely effected by the Proposed Amendments. The EIS does not specifically identify the number of small businesses which will be affected by the Proposed Amendments or the amount of additional cost small businesses can expect to incur. Although the majority of the cost which will be incurred by small businesses in complying with the Proposed Amendments will be the same as those for larger businesses, the effect on competition of small businesses will be greater. Therefore, the effect of the Proposed Rules will have somewhat of a disproportionate impact on small businesses. This impact, despite the Department's assertion in this case that there will be no disproportionate impact, is recognized in the EIS. As required by Section 120.54(2)(a), Florida Statutes, a number of options concerning secondary containment requirements with varying impacts on small businesses were considered at the Environmental Regulation Commission meeting of January 10, 1991. The express purpose of this meeting was to consider such options. The options specifically addressed during the meeting are set out in proposed findings of fact 98 and 99 of the Department's Recommended Final Order. Among the options obviously considered, are those which are contained in the Existing Rules which FPMA has argued should not be changed. Testimony was presented by representatives of the FPMA and others before the Environmental Regulation Commission at the January 10, 1991, meeting and at the March 14, 1991 public workshop concerning the impact of the Proposed Amendments on small businesses. The weight of the evidence failed to prove that the adverse impact on small businesses will be so great that the Department should have tiered the Proposed Amendments to reduce the impact on small businesses. The weight of the evidence failed to prove that small businesses do not contribute significantly to the problem the Proposed Amendments are designed to regulate. The Proposed Amendments do allow some flexibility by providing that facilities that provide the alternative forms of protection prior to December 31, 1991, need not provide secondary containment until after December 31, 1992, 1995, 1998 or 2009. Not all facilities will be able to take advantage of this flexibility because not all facilities can meet the December 31, 1991, deadline. The Department of Commerce's Review of the Proposed Amendments. The Department mailed a copy of the Proposed Amendments to the Department of Commerce, Bureau of Business Assistance, on February 8, 1991. A copy of the Proposed Amendments was logged into the Small and Minority Business Advocate's Office (hereinafter referred to as the "Advocate's Office") on February 12, 1991. Between February 12, 1991, and February 15, 1991, Jonathan Elimimian, an economic legislative analyst in the Advocate's Office, received a copy of the Proposed Amendments from the Bureau of Business Assistance. The evidence failed to prove what happened to the copy of the Proposed Amendments logged into the Advocate's office on February 12, 1991. Dr. Elimimian reviewed the Proposed Amendments and prepared two analyses. In his first analysis, he concluded that the economic impact on small and minority business "is very significant" and that: [m]ost importantly the existing small and minority businesses already operating underground storage tank systems will close their door to business because of economic hardships that might result form the proposed revised rule. To make the situation worst [sic] for small and minority businesses, the scheduled replacement of underground storage tanks shifted from the year 2012 to 12/31/95 makes it further difficult for small and minority underground storage tank owners to raise capital to carry out the expense involved in the changes and still be able to remain competitive or survive. The economic impact is direct and is not productive to small and minority businesses in the field. These findings are not inconsistent or different from the conclusions reached by the Department in the EIS. The findings of Dr. Elimimian were not provided to the Department. Nor was any other correspondence sent to the Department by the Advocate's Office. Instead, as was the practice of the Advocate's Office prior to the employment of the current Small and Minority Business Advocate (hereinafter referred to as the "Advocate"), Dr. Elimimian's review was simply filed in the Advocate Office's files. The weight of the evidence failed to prove that the Department failed to follow any of the procedural requirements of Section 120.54(3)(b), Florida Statutes, concerning the Advocate's Office. In light of the fact that the Advocate did not provide the Department with any comments, the Department did not fail to consider the Advocate's comments or take any action required under Section 120.54(3)(b), Florida Statutes. The weight of the evidence failed to prove whether the Advocate had any "evidence and argument . . . [or] alternatives regarding the impact of the rule on small business" concerning the Proposed Amendments. The weight of the evidence also failed to prove that the Advocate had any "evidence and argument . . . [or] alternatives regarding the impact of the rule on small business" which was not considered by the Department, the Environmental Regulation Commission or the Governor and Cabinet. Therefore, the weight of the evidence failed to prove that the fairness of the proceedings adopting the Proposed Amendments or the correctness of the Proposed Amendments were impaired by the Advocate's failure to comment of the Proposed Amendments pursuant to Section 120.54(3)(b), Florida Statutes.
The Issue Whether the Department of Environmental Protection (Department) proved by clear and convincing evidence that Southeastern Liquid Analyzers, Inc.'s (SELA) 1994 equipment approval for its Tank Chek Statistical Inventory Reconciliation (SIR) method should be revoked?
Findings Of Fact The Parties SELA Southeastern Liquid Analyzers, Inc., is a vendor of Tank Chek, a computer program that conducts Statistical Inventory Reconciliation for petroleum storage tanks. The vice president of SELA is David L. Roberts. SIR is a method of release or leak detection for petroleum storage tank systems. In 1994, the Department approved SELA's Tank Chek SIR method (equipment) for use in the State of Florida. The Department The Department has the statutory authority to establish rules to implement the storage tank regulation program. See § 376.303(1)(a), Fla. Stat. Regulated storage tank systems are required to use a method or combination of release detection that meet the applicable performance standards in Florida Administrative Code Rule 62-761.640 (1998). Fla. Admin. Code R. 62-761.610 (1998). Storage tank system equipment that does not have approval from the Department can still be sold in Florida, but purchasers cannot use that equipment to comply with Department rules. Owners of non-regulated tanks do not have to use approved storage tank system equipment because they are not obligated to comply with Department rules. Only aboveground storage tank systems having individual storage tank capacities greater than 550 gallons, and underground storage tank systems having individual storage tank capacities greater than 110 gallons, are regulated by the Department. See Fla. Admin. Code R. 62-761.100(1) (1998). As a release detection methodology, the SIR computer program or method is a piece of release detection equipment that is subject to equipment approval pursuant to Florida Administrative Code Rule 62-761.850(2) (1998), as it was in 1994 when the Department approved SELA's Tank Chek SIR method. See Rule 17-761.860 (1992). Pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) (1998), "[e]quipment approval requests shall be submitted to the Department with a demonstration that the equipment will provide equivalent protection or meet the appropriate performance standards contained in this chapter." "A third-party demonstration by a Nationally Recognized Laboratory shall be submitted to the Department with the application. The third-party demonstration shall provide: 1. A technical evaluation of the equipment; 2. Test results that verify that the equipment will function as designed; and 3. A professional certification that the equipment meets the performance standards contained in Rule 62-761.500, F.A.C." Fla. Admin. Code R. 62-761.850(2)(c)1.-3. (1998). The function of a third-party evaluation is to verify the accuracy of the performance of a particular piece of release detection equipment in light of the performance standards. The Department does not make exceptions to the requirement that all equipment used by owners and operators of regulated storage tanks in the State of Florida must be approved unless expressly excepted by rule. See Fla. Admin. Code R. 62- 761.850(2) (1998). Compare Rule 17-761.860 (1992). The Department does not have the discretion, however, to deny a request for equipment approval if the applicant satisfies all of the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). Once a vendor has met the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), the equipment is approved and designated on a list maintained by the Department and updated quarterly. Marshall Mott-Smith testified that permits are not issued for equipment approvals, and the approvals are not viewed as a permit. Mr. Mott-Smith testified that the Department does not write any permits for storage tank systems, nor does the Department view an equipment approval as a license. The Department, however, can and does place conditions on equipment approvals. For example, the Department's 1994 SELA equipment approval Order required the installation of at least two monitoring wells at any facility using the SELA system for release detection. Equipment approvals can be and have been revoked. One of the reasons that equipment approvals have been revoked is because the equipment no longer meets the performance standards in the rule. SELA's PetroWorks Evaluation of SELA's Tank Chek SIR Method In 1993, SELA sought equipment approval from the Department of Environmental Protection Bureau of Petroleum Storage Systems (BPSS) pursuant to Rule 17-761.860 (1992), for SELA's Tank Chek SIR method. As part of its request for equipment approval, SELA submitted a third-party evaluation, dated June 3, 1993, of its SIR method. SELA has not submitted to the Department any other third-party evaluation of its SIR method. The third-party evaluation was conducted by Wayne E. Hill of PetroWorks. In 1993, at the time of the third-party evaluation, PetroWorks was a Nationally Recognized Laboratory. The 1993 PetroWorks evaluation verified that SELA's Tank Chek SIR method met the performance standard of the existing rule (1992) and that it "works as it was designed by a third party."2 The 1992 and 1994 versions of the underground storage tank systems rules contained a general release detection performance standard applicable to storage tanks that required that release detection methods demonstrate that the method can detect a "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05." Rule 17-761.610(5) (1992); Rule 62-761.610(5) (1994). See also Rule 17-761.620(7) (1992); Rule 62-761.620(7) (1994). The 1998 version remained substantially the same, although the term "leak rate" is omitted. See Fla. Admin. Code R. 62-761.640(1)(a) (1998)("(1) General. Method of release detection shall: (a) Be capable of detecting a release of 0.2 gallons per hour or 150 gallons within 30 days with a probability of detection of 0.95, and a probability of false alarm of 0.05.").3 The general leak detection performance standard of "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05" was applicable to all release detection methods under Chapter 17-761 (1992). SELA's 1993 PetroWorks evaluation concluded that the Tank Chek SIR method met the general release detection performance standard ("of 0.2 gallons per hour leak rate . . .") contained in Rule 17-761.610(5) (1992). The Department accepted this evaluation such that SELA's Tank Chek SIR method met the general leak detection performance standard as of the 1993 evaluation as evidenced by the Department's equipment approval Order dated January 21, 1994. The 1993 PetroWorks evaluation submitted to the Department by SELA is on a form entitled "Results of U.S. EPA [Environmental Protection Agency] Standard Evaluation Statistical Inventory Reconciliation Method" and states explicitly that "[t]he evaluation was conducted by the vendor of the SIR method or a consultant to the vendor according to the U.S. EPA's 'Standard Test Procedure for Evaluating Leak Detection Methods: Statistical Inventory Reconciliation Methods.'" The State of Florida has not adopted the EPA protocol because the Department does not perform third-party evaluations of SIR release detection software. However, the Department accepts third-party evaluations that are run based on the EPA protocol. The EPA Protocol was developed in response to the varied performance of leak detection methods.4 The EPA wanted to have leak detection methodologies that could be relied upon by tank owners to accurately detect leaks. The EPA published these "tests" (the protocols) that manufacturers of leak detection equipment must meet in order to sell their equipment, e.g., to a regulated owner or operator of an underground storage tank. The instructions in the EPA Protocol for SIR formed the basis for performing third-party evaluations. The three-page "SIR Method Results Form" indicates that PetroWorks evaluated SELA's "Statistically based proprietary method." This Form provides: This statistical inventory reconciliation method reports on the following basis (check one): [actual box displayed] quantitative results (leak rate reported) X [actual box displayed] qualitative results (pass, fail, inconclusive) Test results are reported and the Form further provides: "Based on these results, the method X [actual box displayed] does [actual box displayed] does not meet the federal performance standards established by the U.S. Environmental Protection Agency of 0.10 and 0.20 gallon per hour at P(D) of 95% and P(FA) of 5%." (Emphasis in original.) A three-page "Description Statistical Inventory Reconciliation Method" document is included as part of the PetroWorks evaluation. On page two under the heading "Identification of Causes for Discrepancies," the question is asked: "Which of the following effects does the method identify and quantify." Among other items, "leak rate" is a factor "identified and quantified by running a series of additional reports." On page three and under the heading "Reporting of Leak Status," the response "no" is given in response to the question, "Is the leak status reported in terms of a leak rate (e.g., gal/h or gal/day)?" The explanation for this response is: "Qualitative (Tight/Leaking/Inconclusive)." ("Tight/Leaking/Inconclusive" corresponds to "Pass/Fail/Inconclusive.") A "Reporting Form for Test Results" is included with the PetroWorks evaluation. There are 1 through 120 record numbers with a "Submitted" "Induced Leak Rate (gal/h)" heading for a vertical column. (The numbers listed vertically are either "0" or "0.1.") "The Results Reported by Vendor" are stated under two categories: (1) "If Quantitative," and below with two separate vertical columns identified as "Estimated Leak Rate (gal/h)" and "Est. Ind. Leak Rate (gal/h)" and (2) a separate category with one vertical column identified as "If Qualitative (Tank Tight? (Yes, No, or Inconclusive)." Only the "If Qualitative" vertical column is completed with "yes" or "no" responses. The data table for the two "If Quantitative" columns is blank. PetroWorks did not evaluate SELA's SIR method for leak rates. The 1993 PetroWorks evaluation described above certified that SELA's SIR method complied with the performance standard of Chapter 17-761 (1992), i.e., that the SELA Tank Chek SIR method is capable of reporting qualitative results such as "pass," "fail," and "inconclusive," and detecting a "0.2 gallon per hour leak rate." The Department's 1994 Approval of SELA's SIR Method The Department approved SELA's Tank Chek SIR Analysis System (method) on January 21, 1994, in an Order entitled "APPROVAL OF STORAGE TANK SYSTEM AND RELEASE DETECTION EQUIPMENT." The Department found, in part: "Based on the information provided by Warren [ ] Southeastern Liquid Analyzers, Inc., the Department finds that the applicant's Tank Chek Statistical Inventory Reconciliation Analysis System is comparable to an automatic tank gauging system and will provide environmental protection substantially equivalent to that provided by compliance with the requirements established in Florida Administrative Code Rule, [sic] 17-761.640(6)." See Findings of Fact 18 and 19 for a discussion of the slight differences in the wording of the "0.2 gallon per hour leak rate" performance standard. See also Endnote 3. The Department Re-examines Prior Release Detection Equipment Approvals In 1994 and 1996, the Department made minor revisions to the underground storage tank systems rules and Chapter 17-761 became Chapter 62-761. Effective July 13, 1998, the Department adopted revisions to Chapter 62-761, Florida Administrative Code ("Petroleum Storage Systems") which are detailed below. See also Findings of Fact 3-10 and 47-61. Beginning around December 30, 1999, Department personnel began a dialogue (by e-mail) relating to the requirements of the July 13, 1998, revisions. The participants included Jonathan Reeder and Farid Moghadam for the Department, and David L. Roberts for SELA. (Other persons at the Department including the Office of General Counsel, participated in the discussions.) Mr. Reeder requested guidance from Mr. Moghadam as follows: There seems to be a fundamental conflict between the 7/13/98 Rule requirements for SIR value and data reporting and the qualitative SIR method's ability to provide those values. Specifically, Rule 62-761.640(3)(c)3., F.A.C., requires that the data set leak threshold, the minimum detectable leak rate, and the calculated leak rate be reported. However, the SIR qualitative method will only produce a Pass, Fail, or Inconclusive result. My question is as follows: Does the above situation effectively rescind the approval status of the SIR qualitative methods? This "anomaly" affects those vendors that have approved qualitative SIR methods. Specifically: Entropy Limited, EQ-018 Horner Products, SIR Pro 1, Versions 1.0 and 2.0, EQ-126 Syscorp, Inc., EQ-179 South Eastern Liquid Analyzers, Inc., EQ- 157 Ustman Industries, YES SIR 90, EQ-065 I do know that South Eastern Liquid Analyzers is quite active in Florida as I have seen their reports and have, in fact, discussed this problem with David Roberts, the owner. I guess the real question here is "Can we make a new Rule that specifically excludes previously approved equipment?" Maybe we would need to get OGC's comments? This e-mail was sent to Mr. Moghadam on December 30, 1999, after Mr. Reeder had a phone conversation with Mr. Roberts. It was also sent to Mr. Roberts. On May 12, 2000, Mr. Roberts sent an e-mail to Mr. Reeder with the following message: "I understand from Curt Johnson that I need to talk with you about SIR evaluation list. I have several issues to be resolved to be included [sic]. I would like to see if I can work with you to resolve them. What happened with the questions in FL? For SC, I have added the leak rates per John Kneece's instructions. I have providing [sic] in FL as well for your regulators." On May 12, 2000, Mr. Reeder sent an e-mail to Mr. Roberts and stated: To resolve the issues in Florida you will need to submit a third-party evaluation for a QUANTITATIVE method to Farid Moghadam at our Tallahassee office. His phone number is (850) 921-9007. Since this third-party QUANTITATIVE method would initially be routed through me via the NWGLDE it most likely would also address the past issues of the Work Group. I have not seen the file on your Method but Curt is sending it to me via post. If you have any questions you may call either myself or Farid. I will be in Daytona Beach the week of the 15th for our annual DEP Tanks meeting, returning on May 22, 2000. On May 15, 2000, Mr. Roberts responded: "I do not have a third party on the quantitative method. My third party is for qualitative. We discussed this in regard to Florida. You were talking to the legal department about my being an approved vendor and then the state changed to quantitative at a later date and how you are going to handle it. The work group is a separate issue. . . ." (Emphasis added.) On May 22, 2000, Mr. Reeder responded to Mr. Roberts: I discussed this situation with our Office of General Council (sic) and the Tallahassee Engineering Department during our Conference last week. It is a consensus opinion that the SIR Qualitative Method does not meet the requirements of Florida Rule 62-761-640, F.A.C., and therefore any Facility that uses it as a method of Release Detection is in violation of Rule 62-761.610(1)(a), F.A.C. A letter is being sent from our Tallahassee office to the five vendors that currently have Florida approved Qualitative SIR Methods. This letter will basically state the above position and require that either the vendor "upgrade" their SIR method to that of Quantitative or have their Florida equipment approval revoked. This new Rule has been in effect since July 13, 1998 which is ample time for all SIR vendors to make the necessary adjustments to their methods in order to comply with the new requirements. Additionally, any Facility that continues to use the Qualitative method will be cited for using a Release Detection Method that does not meet the Florida Rule requirements. If you choose to comply with the Florida requirements and have your method third-party evaluated as Quantitative then that would most likely address the past concerns of the Work Group - - mainly the data set problem. However, if you elect to cease doing business in Florida and still desire to have your Qualitative Method listed we can then discuss the items needed to reopen the review process. Please let me know what you wish to do and if you would like to discuss this with Farid in Tallahassee his number is (850) 921-9007. From 1993 until the effective date of the 1998 amendments to Chapter 62-761, Florida Administrative Code, SELA complied with the performance standard in the rules. See Findings of Fact 17 and 21. After Chapter 62-761 was amended in 1998, Department employee Farid Moghadam was told to evaluate all SIR methods being used in the State of Florida to determine whether they were in compliance with the new performance standards. (Some of the recorded dialogue among Department employees and Mr. Roberts is recited above which led to the Department's decision to revoke SELA's equipment approval.) Mr. Moghadam evaluated the already-approved SIR methods by reviewing the third-party evaluations that had been submitted as part of the original application for equipment approval for each SIR method. Mr. Moghadam discovered that at the time of the 1998 amendments to Chapter 62-761, there were 15 SIR methods approved in the State of Florida and each appeared on the Department's approved equipment list. (SELA's SIR method remains on this approved list.) Ten of the approved SIR methods were a quantitative SIR methodology, and five were a qualitative SIR methodology. All 15 of the SIR methods had previously submitted a third-party evaluation. Among the five SIR programs that were qualitative, three of the SIR vendors voluntarily reapplied for equipment approval. All three of these programs were re-approved. One of the SIR vendors requested that the Department rescind its prior order approving the SIR method, thereby requesting that the SIR method be removed from the approved equipment list. Only SELA continued to require a new third-party evaluation as determined by Mr. Moghadam. Mr. Moghadam determined that SELA's Tank Chek SIR method required a new third-party evaluation because the previously submitted PetroWorks evaluation did not indicate that SELA met the performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), as required by Florida Administrative Code Rule 62-761.850(2) (1998). Chapter 62-761, Florida Administrative Code (1998), does not specify that previously-approved equipment required re- approval, re-certification, or re-evaluation. Because performance standards were added to Chapter 62-761 specific to SIR and because no previous versions of Chapter 62-761 contained any performance standards specific to SIR, the Department felt it was necessary to determine whether previously-approved equipment continued to satisfy the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). The issue in this case is not whether SELA's Tank Chek SIR method can produce and report the leak rates required pursuant to Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998), because the testimony and documentary evidence established that Tank Chek can produce leak rates in its reports. The issue in this case is whether SELA's Tank Chek SIR method must be re-evaluated by a third-party so that the Department can know that the leak rates that are produced and reported are accurate and reliable. See Fla. Admin. Code R. 62-761.850(2)(b) and (c). SELA declined to obtain a new third-party evaluation. As a result, the Department gave notice of its intent to revoke the SELA Tank Chek SIR method equipment approval because, as of 1998, the Department no longer had a third-party evaluation certifying that SELA's Tank Chek SIR method complied with the performance standards in Chapter 62-761, Florida Administrative Code. Other than the PetroWorks evaluation of SELA's SIR method performed in 1993, SELA has not provided the Department with another third-party evaluation. On April 18, 2001, the Department advised Mr. Roberts as follows: The Bureau of Petroleum Storage Systems has reviewed the information submitted February 1, 16 and 20, 2001, regarding the Tankcheck Statistical Inventory Reconciliation (SIR) equipment approval order, DEP File Number EQ-157 dated January 21, 1994. The Tankcheck SIR algorithm has not been evaluated by a Nationally Recognized Laboratory, has not been verified that it works as designed by a third party laboratory, and has not been certified that it meets the performance standards in Rule 62-761.640, Florida Administrative Code, (1998) (F.A.C.), as required by Rule 62-761.850(2), F.A.C. Therefore, the equipment approval for Tankcheck SIR, DEP File No. EQ-157 is revoked and is no longer in effect. As of the effective date of this order, you must remove all references to the State of Florida and/or Department of Environmental Protection approval from any and all marketing materials distributed in the State of Florida regarding the use of Tankcheck SIR for storage tank systems regulated by the State of Florida. SELA filed a timely challenge to this Department action. The Department Amends Chapter 62-761 in 1998 Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically enumerated "performance standards" for SIR. The general leak detection standard of "0.2 gallon per hour" was the only release detection performance standard applicable to SIR under Chapter 17-761 (1992). See Finding of Fact 18. Department witnesses testified that, from an inspection standpoint, a SIR methodology that met only the "0.2 gallon per hour" general performance standard would not be in compliance with Florida Administrative Code Rule 62- 761.640(3)(c)3. (1998), but would have been in compliance with Rule 17-761.610(5) (1992). In 1998, the Department amended Chapter 62-761 (1994), formerly Chapter 17-761 (1992), substantially revising this Chapter, including for the first time, at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), performance standards specific to SIR. The general release detection standard set forth in, e.g., Rule 62-761.610(5) (1994) (formerly Rule 17- 761.610(5) (1992)), see Finding of Fact 18, was subsumed by Florida Administrative Code Rule 62-761.640(1)(a) (1998). Under the 1998 revised rules, the general leak detection standard of "0.2 gallons per hour" was retained in the rule in Florida Administrative Code Rule 61-761.640(1)(a) (1998), and remained applicable to all release detection methods including SIR. The SIR-specific performance standards are intended to limit use of SIR to quantitative SIR methods only and to eliminate the use of qualitative SIR methods in Florida. Marshall Mott-Smith, the Department's Environmental Administrator, Storage Tank Regulation Section, Bureau of Petroleum Storage Systems, was instrumental in drafting the 1998 amendments to Chapter 62-761, and also recommended to the Department that the acceptance of either type of SIR methodology for use in Florida be changed. Mr. Mott-Smith testified that there was a need for the Department to address the type of SIR methodology because the Department was concerned that the current use of SIR in the State of Florida was not providing adequate protection for the groundwaters and the surface waters of the state. Field experience and discussion with experts indicated that qualitative SIR methods were not really working and were problematic. There are two types of SIR methodology, qualitative and quantitative. The major distinction between a qualitative SIR and a quantitative SIR methodology is how the results produced by the SIR method are reported. The fact that a SIR method meets the general performance standard of "0.2 gallon per hour" does not indicate whether it is a qualitative or a quantitative method. Third-parties evaluate the SIR method as either a qualitative or quantitative method. A qualitative SIR methodology produces release detection results identified as "pass," "fail," or "inconclusive." A SIR methodology that produces only "pass," "fail," and "inconclusive" results is not a quantitative SIR method. A quantitative SIR methodology, in addition to "pass," "fail," or "inconclusive," will produce release detection results in terms of other values such as the leak threshold, the calculated leak rate, and the minimum detectable leak rate. The general performance standard ("0.2 gallon per hour") is a measurement that works in conjunction with other quantitative results, but it is not determinative of the type of SIR methodology. Prior versions of the rule, including for example Chapter 17-761 (1992) and Chapter 62-761 (1994), allowed either a "qualitative" or a "quantitative" SIR methodology. In contrast to the requirements of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), the previous versions of the rules did not specify that the SIR method had to produce any particular numeric results in order to be in compliance with the rule, only the "0.2 gallon per hour" general performance standard had to be satisfied. Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically identified SIR as a release detection method. SIR was indirectly referenced as "other similar release detection method." See Rule 17-761.610(5) (1992) and Rule 62-761.610(5) (1994). The performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), do not specifically identify the SIR method as either a "qualitative" or "quantitative" SIR methodology. However, all of the Department witnesses persuasively testified that Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requires a "quantitative" SIR methodology. For, example, Mr. Reeder testified that the 1998 rule specifies a specific type of SIR method "in the sense that it requires the production of a leak rate, minimum detectable leak rate and threshold, because those are values that are only produced by a quantitative method and not a qualitative method. So, by that fact, it specifies that a quantitative method be used."5 Florida Administrative Code Rule 62-761.640 (1998), is entitled "Performance Standards for Release Detection Methods." Florida Administrative Code Rule 62-761.640(3)(c)3. (1998) provides, in part: "Statistical Inventory Reconciliation (SIR). SIR shall be conducted according to" requirements a. through i. Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998) requires that the results of each monthly analysis for the SIR method "include the calculated results from the data set for leak threshold, the minimum detectable leak rate, the calculated leak rate, and a determination of whether the result was 'Pass,' 'Fail,' or 'Inconclusive.' For the purposes of this section, the 'leak threshold' is defined as the specific leak threshold of the SIR method approved in accordance with Rule 62- 761.850(2), F.A.C., to meet the release detection level specified in Rule 62-761-640(1)(a), F.A.C." These required reported values are performance standards. A performance standard is something that determines the performance of the method; something that shows what the equipment is supposed to do. Prior versions of the rule, including specifically Chapter 17-761 (1992), did not require that if SIR was used as a leak detection methodology that the SIR method report these leak rates. The requirement that the SIR methodology produce and report these leak rates, see Finding of Fact 59, as well as "pass," "fail," and "inconclusive" results, are SIR-specific performance standards. The SIR performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requiring that these results be produced defines the required SIR methodology as a quantitative methodology. Resolution of the Controversy Notwithstanding the 1993 PetroWorks evaluation, the evidence presented during the final hearing demonstrates that SELA's Tank Chek SIR method is capable of producing quantitative calculated results from a data set for leak threshold, the minimum detectable leak rate, and the calculated leak rate. Stated otherwise, SELA's SIR method can produce and report these values that are required. However, even though SELA's Tank Chek SIR method can produce and report quantitative results, and necessarily these values, a new third-party evaluation is required pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) and (c) (1998), to demonstrate that SELA's Tank Chek SIR method complies with the performance standards of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998). Compare Fla. Admin. Code R. 62-761.640(3)(c)3.b. (1998) with Fla. Admin. Code R. 62-761.850(2)(b) and (c) (1998). The problem with the quantitative results (leak threshold, the minimum detectable leak rate, and the calculated leak rate) SELA's Tank Chek SIR method produces in reports is that it is not known whether those results are accurate or reliable. Determining whether the results produced by a particular SIR method are reliable is the purpose of a third- party evaluation. As noted above, SELA has never had a third-party evaluation that demonstrates that Tank Chek SIR can reliably produce and report a leak threshold, a calculated leak rate, or a minimum detectable leak rate. SELA only has a third-party evaluation that demonstrates that its Tank Chek SIR method can detect a release of "0.2 gallon per hour," the general performance standard, and report the results as "pass," "fail," or "inconclusive." Importantly, the 1992 rules which applied when PetroWorks performed SELA's evaluation in 1993 did not require the production or reporting of leak rates; the rules required compliance only with the general performance standard of "0.2 gallon per hour." Fla. Admin. Code R. 17-761.610(5) (1992). The problem with the leak rates reported on, for example, DEP Exhibit 4, the Seffner Food Stores SIR Historical Summary Report, is that the PetroWorks evaluation did not evaluate the SELA Tank Chek SIR method to accurately produce the numbers (leak rates) that are reported. The 1993 PetroWorks evaluation specifically noted that the SIR method results are on the basis of "qualitative results (pass, fail, inconclusive)" and not on "quantitative results (leak rate reported)." The 1993 PetroWorks evaluation specifically noted that the testing results are not reported in terms of a leak rate. See Findings of Fact 26-29. The 1993 PetroWorks evaluation of SELA's Tank Chek SIR method did not and cannot have certified that Tank Chek meets the requirements of the 1998 rule as required for an equipment approval because the 1998 performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), were not included in Chapter 17-761 in 1993. The 1993 Petroworks evaluation is no longer valid as it no longer satisfies the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), which is a prerequisite to an equipment approval. SELA needs a new equipment approval to comply with Florida Administrative Code Rule 62-761.850(2) (1998).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking SELA's 1994 equipment approval, EQ- 157, without prejudice to SELA submitting a new equipment approval application in compliance with Department rules. DONE AND ENTERED this 20th day of January, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2004.
The Issue Whether respondent should grant petitioner's application for eligibility for restoration coverage under the abandoned tank restoration program?
Findings Of Fact For decades the Hamilton County Road Department has stored refined petroleum products (gasoline and diesel fuel) in underground tanks at its maintenance yard off Highway 249. Testimony of Cox; Petitioner's Exhibit No. 8. On September 25, 1991, the three oldest storage tanks were dug up and removed from the yard. Remaining nearby were the four 5,000-plus-gallon underground tanks the County installed in the early 1980s, see Petitioner's Exhibit No. 7, which are still in use (or were at the time of the hearing.) After the newer tanks were put in service, Hamilton County never refilled any of the three older tanks. "Approximately three to four feet" (T.22) separate the pit which yielded the three older tanks from the "remaining [newer underground storage tank] area," id., to the northwest. In dealings with DER, Hamilton County has used the same "facility number" for both sets of tanks. Immediately after they removed the last of the old tanks, Chris Brockmeier took soil samples. Every sample he took southerly of the tanks left in the ground he found (with the use of a flame ionized detector) to contain in excess of a thousand parts of volatile hydrocarbons per million, undoubtedly a remnant of gasoline or diesel fuel. The soil samples he took from the area on the other side of the remaining tanks contained from 460 to 700 parts of volatile hydrocarbons per million. The contamination may well have come from the old, not the new, storage tanks, but the evidence did not reliably establish its source, Mr. Brockmeier's opinion notwithstanding.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for restoration coverage for Facility No. 248518525 under the abandoned tank restoration program. DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2682 Petitioner's proposed findings of fact Nos. 1-5 and 7-15 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the proof did not eliminate the possibility that leakage or spillage since the old tanks' removal also contributed. Petitioner's proposed findings of fact Nos. 16 and 17 are treated in the section on conclusions of law. Respondent's proposed findings of fact Nos. 2, 3, 4 and 6-13 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 1, the route number was different. With respect to respondent's proposed finding of fact No. 5, Petitioner's Exhibit No. 7 and Cox's testimony suggest they were last used between 1981 and 1986. COPIES FURNISHED: John H. McCormick, Esquire Post Office Drawer O Jasper, Florida 32052 Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues to be resolved in this proceeding concerns whether the Respondent installed a septic system without a permit; whether a permit was required for the installation; whether the installation was of inadequate size; whether the Respondent caused the disconnection of an existing system without a permit, and whether that system was improperly abandoned. A related issue is whether the proposed $1,500.00 fine should be imposed if the violations are proven or what, if any, fine is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, by its organic statutes and rules, with regulating the practice of septic tank contracting and the installation and repair of septic tank and drainfield waste disposal systems and with licensure of such contractors pursuant to Rule Chapter 64E, Florida Administrative Code. The Respondent, Trammel Fowler (Fowler), is a licensed septic tank contractor regulated by the statutes and rules cited herein. Fowler has never been issued any citations or been subjected to discipline under the relevant statutes and rules enforced by the Petitioner with regard to septic system design, construction, installation and repair. He has worked in the septic tank installation business for 19 years. The Respondent installed a septic tank and drainfield system at 5642 Old Bethel Road, Crestview, Florida, a residential construction project (home) in 1993. The original septic tank system installed by the Respondent was finally approved on June 11, 1993. The home site at issue was originally designed to have the septic tank and drainfield system located in the backyard of the residence. Plumbing errors by the general contractor and the plumbing sub-contractor caused the plumbing system to be "stubbed-out" to the front of the house so that the septic tank and drainfield system was installed in the front of the house rather than in the backyard as originally designed and approved by the Petitioner. Additional excavation work was required at the site, which caused the soil type to change in the front of the house where the septic tank and drainfield were to be installed. This in turn required the Okaloosa County Health Department to require additional drainfield square footage to be added to the previously approved 600 square feet of drainfield, so that the drainfield installed in the front of the house by the Respondent ultimately encompassed 800 square feet. Thus, although the original site plans approved by the Okaloosa County Health Department were not followed, subsequent modifications to the system resulted in the septic tank system being fully approved by the Petitioner (through the Okaloosa County Health Department), on June 11, 1993. In the ensuing months, landscaping problems at the site caused surface water to collect around and above the drainfield area. This, coupled with a continuous water flow from the residence caused by leaking appliances, and particularly the commode, resulted in raw or partially treated wastewater becoming exposed on the surface of the ground, as a sanitary nuisance. This was caused as the septic tank and drainfield system became saturated by the excess water from the two referenced sources. This caused the failure of that septic tank and drainfield system within nine months of its original installation, as was noted on March 4, 1994, by the Department's representative Mr. Sims. It is undisputed that the Respondent, Mr. Fowler, did not cause or contribute to this septic tank system failure. He constructed the system as designed and approved by the Department (or as re- approved by the Department in June 1993 with the relocation of the system to the front yard of the residence and with the augmentation of the drainfield referenced above). The Department was aware of the failure of the original system in the front yard of the residence as early as March 1994. There is no evidence that an actual permit for repair of that system was ever issued. Mr. Fowler maintains that the Department had a policy at that time of authorizing repairs to systems that failed within one year of original installation, as this one did, without a written, formal permit process, but rather by informal approval and inspection of the repair work. The Petitioner disagrees and Mr. Sims, the Petitioner's representative, states that a permit was required, although no fee was charged. Indeed in 1994 a rule was enacted authorizing issuance of a permit for repair work for systems that failed within one year of original installation without being accompanied by the charging of a fee for that permit. In any event, prior to the rule change, repairs were authorized for failures within one year by the Department without a permit, but were required to be inspected and a notation made in the permit file or in some cases on a "nuisance complaint card," so authorization and inspection was supposed to be documented. When by the time the repair was effected by the installation of the backyard septic tank and drainfield system or "overflow-system" in February 1995, the rule change requiring issuance of a repair permit without fee had become effective. There is evidence that the Respondent was aware of this since, sometime in 1994, he had obtained a permit authorizing repair of a septic tank and drainfield site on "Windsor Circle" as shown by the Petitioner's Exhibits 6 and 7 in evidence. Be that as it may, the Respondent contends that Mr. Brown, the environmental specialist and inspector for the Department, met with him at the repair site in question and at least verbally authorized the repair of the system by installation of the septic tank and drainfield in the backyard of the residence; to be connected to the sewer line which also was connected with the malfunctioning system in the front yard of that residence. Mr. Brown in his testimony purports to have no memory of authorizing the repair work or inspecting it and seems confused as to whether he met with the Respondent at the site. The Petitioner acknowledges, as does Mr. Brown, that he has had problems since that time with memory lapses, attendant to two life-threatening injuries, which have apparently caused problems with memory loss. He purportedly suffers from post-traumatic stress syndrome and is taking medication with regard thereto. There is no dispute that he has problems with recall. Moreover, there is evidence that Mr. Brown met with the Respondent at an address on Old Bethel Road for some reason, as shown by a notation in Department records in February 1995. Consequently, while there is no doubt that the repair work in question was done without a written permit, there is evidence to corroborate Mr. Fowler's testimony to the effect that Mr. Brown inspected and reviewed the repair system while it was actually being installed by Fowler and approved it. Thus, it is possible that Mr. Fowler was under a good faith impression that the Department had a policy of inspecting and approving repair work without there being a permit related to it at the time when he installed the secondary "overflow" system at the Old Bethel Road site in February of 1995, even though that impression may have been legally mistaken, because the rule requiring a permit at no fee for repair work was already in effect. In any event, Mr. Fowler installed the so-called "repair system" in February 1995, which he has termed an "overflow" system designed to augment the treatment capability of the previously-approved system installed in the front yard at that residence. That system, as found above, consisted of 800 square feet of drainfield. The "overflow" system installed in the backyard by Mr. Fowler in February 1995 without the permit, has only 300 square feet of drainfield. This is clearly well below the minimum required for such a system and tends to support Mr. Fowler's testimony that it was intended really as a repair job in the form of a overflow system to handle extra flow that the original system in the front yard would not be able to handle in performing the intended treatment function. It is unlikely that Mr. Fowler, with or without a permit, would have installed a system he clearly would know to be of only one-half (or less) of the adequate size and treatment capability for the residence, if it had been intended to be a separately functioning independent treatment system for the residence. In fact, the "overflow" system was connected through a "T" or "Y" fitting in the sewer line outfall pipe from the house with the original septic tank and drainfield system in the front yard of the residence, so that flow could go to both systems simultaneously from the residential sewer line. There is conflicting testimony as to whether such a dually draining system could work properly. One septic tank contractor testified that it could and could adequately split the flow between the two septic tank and drainfield systems so as to perform adequate treatment without backups or overflows, while a witness for the Department testified that such a split-fitting could cause stoppages and therefore sewage backups. Be that as it may, the installation of the system in a connected fashion to the original system supports Mr. Fowler's testimony and contention that the system installed in the backyard, with 300 square feet of drainfield, was intended as a repair system merely to augment the treatment function being provided by the poorly functioning original system in the front yard. In fact, the preponderant evidence shows that, with the elimination of leakage from the appliances in the house and the correction of the water-pooling problem caused by improper landscaping, that the system would function adequately thus connected. Indeed, when the plumber or the general contractor for the residence disconnected the original front-yard septic tank system from the overflow system, so that all of the sewage in the house went to the overflow system with the smaller drainfield, that system still functioned adequately for one and one-half years until failure in approximately August 1997. It is undisputed that the Respondent had no part in the unreported and unapproved disconnection of the original front system from the overflow tank and drainfield system in the backyard. The evidence shows a preponderant likelihood that the total system would have functioned adequately indefinitely had the two remained connected so that sewage could flow to the front yard system with the 800 square feet of drainfield, with the excess water flow problems referenced above already corrected. Mr. Brown, the Department environmental specialist and inspector, did not recall specifically whether he had been at the Old Bethel Road site at issue, but testified that it was definitely possible. He testified that the time entry notation he made admitted into evidence as Exhibit No. 3, may have reflected an inspection for a repair job at the Old Bethel Road site. Mr. Brown admitted that he was present on Old Bethel Road in February 1995, but did not recall his purpose of being there. His testimony thus did not contradict the testimony of Trammel Fowler. Mr. Brown also testified that he was aware of problems at the Old Bethel Road site and testified that Mr. Wykle of the Department and Mr. Sims were also aware of problems at the Old Bethel Road site. Douglas Sims of the Department testified that the two systems, the original front tank and drainfield and the overflow tank and drainfield installed in the backyard by Mr. Fowler could not work together if they were connected. This is belied by testimony of a septic tank contractor, Ken Arnett, who was a rebuttal witness called by the Department. Mr. Arnett testified that he would expect a system of the type contemplated by Mr. Fowler and Mr. Brown to function properly. It thus seems from the preponderant weight of the evidence that the reason the Old Bethel Road residential system quit functioning properly, in approximately August 1997, is that the plumbing contractor, at the behest of the residential building contractor for the residence constructed there, disconnected the overflow system from the original front yard system, so that all the house effluent was going to the overflow system, which was never intended to have a complete, standard-sized drainfield for such a dwelling, prevalent soil conditions, elevations and the like. Mr. Brown, a long time employee of the Department was familiar with the statewide rules affecting septic tank contractors and installation and familiar with local department rules and policies relating to repairs. He testified that for a period of time in the early 1990's, there was an unwritten policy by the Okaloosa County Health Department that some repair permits would be waived for certain repairs provided a final inspection by the Department was made. He stated that if the septic tank system failed within one year under certain circumstances, a repair permit would be waived as long as the Department was aware of the repair. Mr. Brown could not recall when the policy ended, but estimated it to be sometime between 1995 and 1997. He called the discontinuation of the local policy to waive repair permits a "gradual phase out." Mr. Brown also recalled that the Okaloosa County Health Department's unwritten, local policy concerning waiver of repair permits was known and relied upon by septic tank contractors in certain situations. Cecil Rogers, a long-time septic tank contractor who dealt with the Okaloosa County Health Department regularly, testified that there was a standard policy to allow repairs to be made to septic tank systems that failed within one year without requiring a permit. There thus seems to have been an unwritten policy or practice among septic tank contractors and the Okaloosa County Health Department to the effect that if a system failed within one year and the contractor was willing to repair the system without cost to the homeowner, that the permit would be waived as long as the system or repair could be inspected by the Department. The system originally installed which failed appears to have been installed before the effective date of the rule requiring that a no-charge permit be obtained for repair work. The repair work in question, the installation of the overflow system, appears to have been effected after the effective date of the new rule. It also appears that Mr. Fowler knew of the new rule because of his obtaining a permit for repair work at the Windsor Circle repair site in 1994. It also would appear that Mr. Brown likely verbally approved and inspected the repair work at the subject site, giving Mr. Fowler the impression that he was authorized to go ahead and make the repair by installing the overflow system. Thus, although he may have technically violated the rule requiring a no-charge permit for repair work, it does not appear that he had any intent to circumvent the authority of the Department, since the preponderant evidence shows that Mr. Brown knew of and approved the installation. Thus, in this regard, a minimal penalty would be warranted. Moreover, after the original septic system at the Old Bethel Road site failed in March of 1994, through no fault of Fowler, Fowler paid to make the repair by installing the overflow system at his own expense. The original new home purchaser at that site, and Mr. Fowler's customer, Mr. Wayne Aaberg, thus did not sustain any personal expenses for the repair work performed by Fowler. The Petitioner did not present any evidence to establish that the repairs made by Fowler caused the septic tank system at Old Bethel Road to fail. The Petitioner, through the testimony of environmental manager Douglas Sims, itself established that the plumbing contractor actually disconnected the front system from the overflow system and made a physical connection only to the rear system installed by Mr. Fowler, rather than Fowler, and without Mr. Fowler's knowledge. The Petitioner, apparently through Douglas Sims, failed to conduct an investigation to determine which party actually was responsible for physically abandoning or disconnecting the original front system from the home and from the overflow system prior to the charges being filed against Mr. Fowler. Mr. Fowler did not cause the physical disconnection of the two systems and the residence and is not a licensed plumber. He did not, during the course of his contracting business for septic tanks and drainfields make physical connections or disconnections to dwelling units, but instead left that to the responsibility of the general contractor and/or the plumbing contractor. The Petitioner presented no evidence establishing any monetary harm to any customer of the Respondent. The disconnection of the systems which caused the failure was not shown to have been the responsibility nor fault of Mr. Fowler. Rather, any monetary harm to the homeowner who owned the residence when the failure occurred in August 1997, after the original repair installation had been paid for by Mr. Fowler was caused by the plumbing contractor and/or the general contractor, Kemp Brothers, who directed the plumbing contractor to disconnect the original front system from the overflow system. Consequently, any monetary damage caused by fixing the failure which occurred in August 1997, and which engendered the subject dispute, was not caused by Mr. Fowler. Finally, Mr. Douglas Sims of the Department, testified that he knew of two other un-permitted repairs by septic tank contractors which were known to the Department. In both of those cases, the contractors were only issued a Letter of Warning. Mr. Sims testified that if the Respondent herein had made repairs to the existing system at his own cost after the failure occurring in August of 1997, then the Department would have only issued a Letter of Warning. Mr. Fowler paid to fix the original system in February 1995, but felt that monetary responsibility for the August 1997 failure was not his fault and thus did not offer to pay for that.
Recommendation Accordingly, 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 a final order be entered finding that the Respondent effected repair work to a septic tank and drainfield system without the required written permit but that, in view of the above-found and concluded extenuating circumstances, that a minimal penalty of a letter of warning be issued to the Respondent by the Department and that the citation for violation, in all other respects, be dismissed. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2000. COPIES FURNISHED: Rodney M. Johnson, Esquire Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 Matthew D. Bordelon, Esquire 2721 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether Petitioner is eligible for Florida Petroleum Liability Insurance and Restoration Program (FPLIRP) coverage for petroleum discharges on March 10, 1992 and June 22, 1992.
Findings Of Fact Realadyne is a Florida corporation. The current president of Realadyne is Mary J. Martin. Realadyne was the owner and operator of a facility located at 4846 4th Street North, St. Petersburg, Florida (Save-A-Step Food Store #7) (the "Facility"). The Facility was registered with the Department and was assigned DER Facility No. 52-8624627. The underground petroleum storage system located at the Facility included five underground petroleum storage tanks - four 4,000 gallon tanks and one 10,000 gallon tank. The date(s) that the tanks were installed at the Facility is unknown. At all times material, the Department has delegated to Pinellas County the authority to perform certain types of inspections with regard to underground petroleum storage systems. These inspections are performed by the Pinellas County Public Health Unit ("PCPHU"). Realadyne filed three (3) individual applications for eligibility for restoration coverage under FPLIRP for the Facility for petroleum discharges reported July 30, 1990, March 10, 1992, and June 22, 1992. The applications were all denied by the Department, for reasons articulated by the Department in individual responses to each application all dated September 3, 1993. Realadyne applied for FPLIRP coverage on or about July 25, 1991. Realadyne obtained FPLIRP coverage for the Facility for the period of October 7, 1991 to October 7, 1992. The July 30, 1990 discharge is not eligible for restoration coverage since it occurred outside the FPLIRP coverage period (prior to October 7, 1991). The parties have reviewed the grounds for FPLIRP restoration coverage ineligibility. The parties stipulate and agree that the sole remaining basis for a determination of ineligibility is the following: Failure to upgrade petroleum storage system in accordance to the schedule required by Section 17-761.510(6), F.A.C. The parties also stipulate and agree that if either discharge from the Facility shall be determined eligible for FPLIRP restoration coverage, then the Facility shall be eligible for reimbursement under the restoration program. Under the aforementioned regulations, the petroleum storage system at the Facility was required to be retrofitted on or before December 31, 1989. On July 13, 1990, a PCPHU Inspector (Arthur Caden) performed a compliance inspection at the Facility. A Pollutant Storage Tank System Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin. On July 19, 1990, Ms. Martin had a phone conversation with Moghadam regarding the Facility. As noted, Moghadam's job duties included review of alternative procedure requests under Rule 17-761.850, Florida Administrative Code. As a result of the phone conversation, Martin sent correspondence to John Svec, an employee with the Department's Bureau of Waste Cleanup. The referenced letter requested the Department to grant an "alternate technical proceedings to be able to apply for FDER/FPLIRP" (the "Proceeding"). The July 19, 1990 letter signed by Martin provided in part: The above facility has not been in compliance for over a year, due to company not being able to afford or support a loan for the removal of and replacement of the tanks. By correspondence dated July 25, 1990, the PCPHU directed Petitioner to file a Discharge Notification Form (DNF) concerning a potential discharge of petroleum product. On August 1, 1990, Ms. Martin met with the PCPHU inspector concerning the results of the compliance inspection conducted on July 13, 1990. At that time, PCPHU informed Ms. Martin that "she had to . . . line/replace the old tanks which are unknown as to date of installation." On August 1, 1990, Petitioner filed a DNF with the PCHPU concerning a potential discharge of petroleum product. On or about September 12, 1990, the PCHPU sent Petitioner a Warning Letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks. On September 25, 1990, Petitioner provided PCPHU with a copy of a contract proposal for removal and replacement of the underground storage tanks. The contract proposal was from Adams Tank and Lift dated September 4, 1990. Attached to the proposal was a "SNAP-A-GRAM" signed by Ms. Martin which provides in part: Regarding the above facility please be advised that I should be able to give you a date as to when the work will be started the first week of October. I am enclosing a copy of a proposal from Adams Tank and Lift of work to be done at this location. The work contemplated under the proposal from Adams Tank was never performed. On June 5, 1991, a PCPHU Inspector (Joyce Welch) performed a compliance inspection at the facility. A Pollutant Storage Tank Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin. On or about July 8, 1991, the PCPHU sent Petitioner a Warning Notice concerning the DNF that Petitioner filed on July 30, 1990. On July 8, 1991, PCPHU sent Petitioner another warning letter concerning the DNF which Petitioner filed on August 1, 1990. The warning letter provided in part: On August 1, 1990, this agency received a discharge notification form with a discovery date of June 1990. The discovery was based upon the manual sampling of a monitor well. A routine compliance inspection on July 13, 1990 verified the presence of free product in well number 3. Said free products present in the groundwater confirms your site has excessively contaminated as defined in . . . Chapter 17-770. You are instructed to initiate a contamination assessment report (CAR) in accordance with . . . Chapter 17-770 within thirty days of receipt of this letter to determine the extent of contamination. On or about July 19, 1991, Ms. Martin had a phone conversation with Mr. Moghadam. The July 19 letter, which was received by the Department on or around July 22, 1991, requested that the Department grant "alternate technical proceedings to be able to apply for FDER/FPLIRP." (the "Proceeding") Petitioner requested the Proceeding in an effort to bring the Facility into compliance with applicable underground storage tank regulations. After filing the Proceeding, Petitioner applied for FPLIRP coverage on July 25, 1991. The Department never responded, in writing, to the request for the "Proceeding". On February 11, 1992, PCPHU performed another compliance inspection at the facility. On February 17, 1992, PCPHU sent Petitioner a Final Non- Compliance letter concerning the results of the inspection conducted on February 11, 1992. The above-referenced PCPHU noncompliance letter provides in part: Storage tanks do not meet storage tank standards. Please upgrade tanks to meet applicable storage tank standards. On March 10, 1992, Petitioner filed a second DNF for the Facility, based upon evidence of a discharge discovered while inspecting and repairing a portion of the storage tank system. On June 22, 1992, Petitioner began closure activities with regard to removal of the underground petroleum system. On that date, Petitioner filed a third DNF based on evidence of a discharge discovered during its closure activities. On June 23, 1992, Petitioner concluded closure activities with regard to removal of the underground petroleum storage system. Petitioner was not required to obtain the Department's approval of an alternate procedure as a condition precedent to the removal of the underground storage tanks. Removal of the tanks would have brought Petitioner into compliance with the requirements of Rule 17-761, Florida Administrative Code. On or about September 12, 1992, after the tanks were removed, PCPHU sent Petitioner a warning letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks. The warning letter provided in part: . . . Chapter 17-61.061(1)(b)2, requires all tanks to be lined or replaced before certain dates. In the case of your facility, since the installation date is unknown, you are required to have the tanks relined or replaced by December 31, 1989. You were previously advised of this violation during an inspection by one of our staff, Arthur L. Caden, on July 13, 1990, and by letter dated July 25, 1990. You requested and obtained a meeting with our staff on August 1, 1990 at which time you were directed to submit a discharge notification form (DNF), and to advise this office whether you would reline or replace the tanks. The DNF had been filed, but staff has not been formally advised of your decision regarding the tanks. Therefore, since you have not responded formally to this office, we have no alternative than to advise you that we will proceed with an appropriate enforcement action if you ignore this letter of warning. Please be advised that the subject tanks shall be relined or replaced no later than November 30, 1992. Petitioner's request for the "proceeding" seeks an after-the-fact "exception" to the retrofit requirements of Rule 17-761.510, Florida Administrative Code. The basis for Petitioner's request for an exception is "financial inability". When Petitioner's request for a "proceeding" was filed, the Department had a policy of not proceeding with the review of any request for an alternative technical procedure if the facility submitting the request was then out of compliance with the retrofitting requirements of Chapter 17-761, Florida Administrative Code. The request for a "proceeding" was not a viable procedure to extend the December 31, 1989 retrofitting deadline even assuming the request otherwise complied with Rule 17-761.850, Florida Administrative Code. Likewise, the Department lacked authority to extend the December 1989 retrofitting deadline. The Department received Petitioner's application for FLIRP coverage on July 29, 1991, approximately three days after the Department received Petitioner's request for the "Proceeding". 1/ On July 26, 1991, Ms. Martin executed a FLIRP affidavit on behalf of Petitioner as part of its application for coverage under FLIRP. The introductory portion of the FLIRP affidavit provides in part: In order to be eligible for the. . . restoration program, a facility owner or operator must sign this affidavit to affirm that the facility is in compliance with the Department's storage tank rules. . . and Chapter 376, Florida Statutes, and that he/she has read and is familiar with these rules and statutes. The attestation portion of Petitioner's FLIRP affidavit, as executed by Ms. Martin, provides in part: The petroleum storage systems, as defined under Chapter 376.301, Florida Statutes, located at the facilities listed on the application, are now in compliance and shall maintain compliance with the applicable provisions of Chapter 376.303, Florida Statutes, and Florida Administrative Code Rule 17-761. . . including, but not limited to, those provisions: * * * (b) The installation, maintenance and repair of new and existing underground petroleum storage system; * * * (e) Notification of sale, abandonment, replacement or upgrading of petroleum storage systems. The attestation portion of Petitioner's FLIRP affidavit, as executed by Martin, also provides in part: I, Realadyne, Inc. have read Chapter 376, Florida Statutes, and Florida Administrative Rule 17-761 and the facility or facilities listed on the attached application meet the requirements for the participa- tion in the Florida Petroleum liability insurance and restoration program as described in Chapter 376.3072, Florida Statutes. In executing the affidavit, Ms. Martin knew, or should have known, that the facility was not in compliance with the Department's applicable storage tank regulations. On December 4, 1991, Petitioner contacted the Department, via telecommunique, concerning its request for the "proceeding" to apply for FDER/FPLIPA. At that time, the Department informed Petitioner that the Department would not proceed with the review of the request of an alternate technical proceeding because the facility was already out of compliance with applicable retrofitting requirements. On that day, Petitioner informed the Department that it could not afford to have the underground storage tanks removed. At that time, the Department requested that Petitioner take the tank out of service, pending a decision by it as to whether the tanks would be removed and/or replaced. Also, the Department requested that Petitioner provide it with an updated storage tanks registration form reflecting that the tanks had been taken from service. Petitioner informed the Department that the underground storage tanks would be taken out of service, pending its decision whether it would remove or replace the tanks. Petitioner also agreed, at that time, to provide the Department with an updated storage tank registration form reflecting that the tanks had, in fact, been removed or taken out of service. The Department requested that the tanks be taken out of service to minimize the potential for a discharge of a petroleum product. If Petitioner had taken the underground tanks out of service as requested (and as agreed), the facility would have been in compliance with the requirements of Rule 17-761.510, Florida Administrative Code. On September 11, 1991, PCPHU sent Petitioner another warning letter concerning its failure to comply with the retrofitting requirement. The above-referenced warning notice provides in part: On July 13, 1990, agency personnel inspected your storage tank facility for compliance with Florida's tank regulations and violations were noted. Then on July 25, 1990, this office sent you a letter requesting that you provide the Division with a written explanation of your failure to comply with F.A.C. Chapter 17-61, and to proceed with certain steps. This agency has received no response from your company. On September 25, 1991, the Department contacted Petitioner, by phone, concerning the request for an alternate technical proceeding. During the course of the conversation, Petitioner indicated that it had scheduled a meeting with PCPHU concerning the removal and/or replacement of the tanks. On September 25, 1991, the Department requested that Petitioner provide it with an updated registration form reflecting that the tanks had been taken out of service. On that date, Petitioner agreed to provide the registration form reflecting that the tanks had been taken out of service. On September 30, 1991, the Department again contacted Petitioner concerning its request for an alternate proceeding. At that time, the Department again requested the updated registration form reflecting the tanks had been taken out of service. On that date, Petitioner telecopied the Department a letter and a copy of a contract proposal from UST Engineering for the relining of the underground storage tanks. The contract was dated June 28, 1991, and was signed by Martin on behalf of Petitioner. Petitioner's letter dated September 30, 1991, to the Department was also signed by Martin. The above-referenced letter provides in part: "UST has assured me they will be able to complete the work before the first of the year." The document submitted by Petitioner to the Department on September 30, 1991, included a copy of a check issued by Petitioner made payable to UST Corrosion Engineering. The work contemplated under the UST contract proposal was never performed. Petitioner did not inform the Department of its decision not to have the work performed. A release of petroleum product occurred prior to removal of the petroleum storage system. Petitioner failed to comply with the retrofitting requirements set forth under Rule 17-761.510, Florida Administrative Code. Petitioner continued to sell petroleum products until mid June, 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Environmental Protection enter a final order denying Petitioner's application for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. RECOMMENDED in Tallahassee, Leon County, Florida, this 7th day of December, 1994. JAMES E. BRADWELL 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 7th day of December, 1994.
