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 The issues to be resolved in this proceeding concern whether the Petitioner, Webbs Wood Products, Inc., is eligible for participation and reimbursement in and from the Abandoned Tank Restoration Program (ATRP) as provided for in Section 376.305(7), Florida Statutes, concerning its facility located in Gonzalez, Florida.
Findings Of Fact The parties stipulated to certain facts which are found next below: The Petitioner, at times pertinent hereto, was the manufacturer of wood shipping pallets at its facility in Gonzalez, Florida. The Petitioner made a practice of storing petroleum fuel on its premises in order to fuel its forklifts, trucks, and other equipment. It stored this fuel until approximately September 1989 in UST's. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the ATRP provided for in Chapter 376, Florida Statutes, and regulating entry by private businesses and individuals into that program, by reviewing their qualifications. The UST's at issue were removed from the ground when contamination related to them was discovered in September 1989. It is undisputed that the UST's were causing contamination into the soil in the area immediately under and around the UST's. The UST's were properly closed according to Department- administered law and regulation by November 1989. Two AST's were installed to provide fuel for the Petitioner's business around September 1989 at approximately the same time that the UST's were removed from service and removed from the ground at the site. The AST's were installed inside a fenced compound, separated from the former location of the UST's by approximately 40 feet. There is no evidence, nor is it contended, that any contamination at the site has resulted from the AST's which were installed to replace the UST system. On June 30, 1992, the Petitioner filed an ATRP application pursuant to Section 376.305(7), Florida Statutes. This application related to contamination which had leaked at the facility from the UST's which had been installed there until approximately September 1989. On June 30, 1992, the Petitioner also filed a storage tank registration revision for its facility numbered 178520358, deleting the two AST's which had been included with the two UST's registered under that same facility number. The Petitioner also filed for a new storage tank registration in his own name as lessee/operator for the AST. The AST's were issued a new registration numbered 179202812 on or about October 7, 1992. On October 2, 1992, the Department issued an order denying eligibility for the ATRP concerning the contamination related to the UST's. The AST's were designed as replacement tanks for the UST's and were used to serve the same business purpose as had the UST's. Both the UST's and the AST's were used to fuel the same vehicles and type of vehicles used in the conduct of the Petitioner's business. The fueling facility and the business were conducted on the same contiguous parcel of property (the site) and the two tank systems were not used at the same time. That is, when the UST's were abandoned and removed, only then did the AST's get installed and continue the previous operation of fueling the Petitioner's vehicles. The UST's and AST's clearly were used for the same business purpose, and the AST's clearly replaced the UST's in performing that identical purpose. When the UST's were removed from the Petitioner's site, the Petitioner still intended to stay in business because it spent $18,000.00 on the purchase and installation of the AST's and immediately began using them for the same purpose, that is, fueling its vehicles. The Petitioner did store petroleum products for its own consumption in the AST's after March 1, 1990. The Petitioner did not attempt to obtain separate registration numbers, which might conceivably be deemed indicative of separate "facilities" until June 30, 1992. The Petitioner sought the new facility identification number, as shown by Mr. Webb's own testimony, in order to render the AST's to be considered a separate facility from the UST's which had been removed, so that eligibility in the ATRP could be obtained for cleaning up the contamination related to the UST's. It is ordinary practice for the Department to give both AST's and UST's the same facility identification number (and to consider them the same "facility") when the UST's and AST's are located in close proximity to each other, are on the same contiguous single parcel of land, and are used as replacement tanks for the other. Separate numbers for each petroleum storage system on a site creates an inspection problem for the Department and may triple the number of registered facilities in the State creating administrative problems and confusion for Department inspectors. The Petitioner did not establish evidence that the Department has as a policy of issuing or, in any given instance has issued, two separate facility identification numbers for any other two petroleum storage systems where the storage systems have the same owner, on the same relatively small parcel of land, in close proximity to the other tanks and where the tanks involved served the identical general business purpose of the owner. The mere issuance of a separate facility identification number for the AST's in 1992 does not indicate that the AST's were a separate "facility" for the purpose of eligibility under the ATRP as that eligibility is described in the authority cited below. The facts proven by the preponderant evidence of record establish that the Petitioner's UST petroleum system and the AST petroleum storage system were just that, separate storage systems at the same facility, owned by the same owner on a small contiguous parcel of property in close proximity to each other, serving the same business purpose, and doing it serially, with one tank system being a replacement for the other. Quite simply, the facts show that the Petitioner had one facility with two storage tank systems, one of which replaced the other, performing the same purpose.
Recommendation In consideration of 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 RECOMMENDED that a Final Order be entered by the Department denying the application of the Petitioner for eligibility for the abandoned tank restoration program. DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 12th day of January, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1-30. Accepted, with the exception of the last sentence of proposed finding of fact number 30. However, the proposed facts, while true, are not necessarily accepted for their purported material import in deciding the issues in this case. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact 1-21 are accepted, although not all of them are relevant and necessary to a decision on the factual and legal issues in this case and are subordinate to the Hearing Officer's findings of fact on the subject matter as are the Petitioner's proposed findings of fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Rod Tallahassee, FL 32399-2400 Kenneth Plante, Esq. General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jesse W. Rigby, Esq. CLARK, PARTINGTON, HART, LARRY, BOND, STACKHOUSE & STONE One Pensacola Plaza 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, FL 32591-3010 Jefferson M. Braswell, Esq. Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether Respondent should deny the request for an increase in licensed capacity, from 12 to 65 children, because Petitioner's septic system is inadequate for the increased capacity.
Findings Of Fact Petitioner is a child care facility licensed for 12 children in accordance with relevant provisions in Chapter 402, Florida Statutes.1 Petitioner seeks to increase its licensed capacity from 12 to 65 children. Respondent is the state agency responsible for licensing child care facilities. Respondent stipulates that Petitioner satisfies all relevant licensing requirements except those pertaining to the capacity of the septic system at the facility. The child care facility is on the same property and is part of the O'Neal Memorial Baptist Church. The church has 25 members and shares the same septic system. Respondent is statutorily required to enforce minimum standards for licensing child care facilities, including standards for the health, sanitation, and safety of the children. Respondent did not delegate its statutory authority to a local governmental agency. The local governmental agency did not exercise licensing authority over Petitioner. Respondent properly relied on the Nassau County Health Department (the "Health Department") to determine whether the existing septic system is adequate for 65 children. Since 1990, the Health Department has performed local inspections for Respondent pursuant to Florida Administrative Code Rule 10D-6,2 Chapter 386, and valid inter-agency agreements.3 The Health Department properly determined that the current septic system is adequate for only 12 children. The Health Department correctly applied the formula prescribed in Rule 10D-6, including Rules 10D-6.048 and 10D-6.049. The capacity of a septic system is determined by flow rates prescribed by rule, the size and design of the septic tank, the type and size of the drainfield, and soil conditions. The current system consists of a 1200 gallon tank, a mound drainfield of 287 square feet, and adverse soil conditions.4 Flow rates are not limited to toilet flushes. Flow rates include toilet flushes, kitchen use, hand washing, and any other demand on the septic system. The flow rates prescribed by rule are 3 gallons for each member of the church, 10 gallons for each child, and 15 gallons for each worker in the child care facility. The current facility has three workers for 12 children. The facility serves food to the children. The flow rate prescribe for children must be increased by four gallons whenever food is served. The total flow for the existing capacity of the facility is 363 gallons. Church members produce a total flow of 150 gallons. Children and workers, respectively, produce a total flow of 168 and 45 gallons. The existing septic system is more than adequate for an a total flow of 363 gallons. A 900 gallon tank is the smallest tank allowed by rule for a total flow of 0-300 gallons. A 1050 gallon tank is the smallest tank allowed for a total flow of 301- 400 gallons. The existing 1200 gallon tank is more than adequate for 12 children and 50 church members. The evidence did not establish whether the existing 1200 gallon tank is a single compartment tank. A 1200 gallon single compartment tank, by rule, will accommodate 401 to 500 gallons of total flow. If the existing tank is a single compartment tank, it is more than adequate for 12 children. Petitioner argues that the actual membership of the church is only 25 and not 50. Even if the actual membership is 50, the existing septic system is adequate. The existing septic system is not adequate for 65 children with a total flow of 910 gallons. Assuming the number of workers would increase to 5 and that there are only 25 church members, the total flow for workers and members, respectively, would be 150 gallons. Total flow would be 1060 gallons. A 2200 gallon tank is the smallest tank allowed by rule for a total flow of 1060 gallons. The current 1200 gallon tank does not comply with applicable rules and is inadequate for a total flow of 1060 gallons. Even if the existing tank were designed as a single compartment tank, it would not be adequate for 65 children. A 1200 gallon single compartment tank is adequate for a total flow of only 401 to 500 gallons. Petitioner argues that the church members use the septic system on the weekends when the child care facility is not in operation. Petitioner argues that the flow rates for church members should be excluded from total flow when determining capacity of the existing system. Petitioner's argument is not dispositive even if it were correct. Even if 50 church members were excluded, total flow is 910 gallons. The maximum flow prescribed by rule for a 1200 gallon single compartment tank is 401-500 gallons. The inadequacy of the current septic system is exacerbated by the paucity of the existing drainfield. The smallest tank allowed by rule for the projected total flow of 1060 gallons is a 2200 gallon tank. However, a 2200 gallon tank is allowed only if it is used with a drainfield of 1,746 square feet. Petitioner's drainfield is only 287 square feet. Petitioner's drainfield is a mound. A mound has less capacity than an in-ground drainfield due to differences in loading rates. Moreover, soil conditions surrounding the drainfield further reduce its capacity. Petitioner can obtain the desired licensing capacity if it increases the capacity of the current septic system. Petitioner would need to obtain a repair permit to redesign the drainfield, increase its area, increase the size of the septic tank, or to perform all of the foregoing repairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinDENY Petitioner's application for a license for 65 children. DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.
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), F.A.C., 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 with its principal place of business in Leon County, Florida, 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, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991). In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum 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. Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. 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. As a result, Petitioner cannot be viewed as having filed the registration. 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. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the 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. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was 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), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable. 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. Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute. As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991). By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment. Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system. DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-23. Adopted, though not verbatim. Respondent's Proposed Findings. 1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted. Rejected, relevance. A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued. Accepted to the extent that the evidence establishes that there were four tanks in the pit. Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence. 16.-18. Rejected, weight of the evidence. 19.-20. Accepted. 21.-22. Rejected, subordinate. Accepted. Rejected, relevance. 25.-26. Accepted. 27.-29. Rejected, subordinate. Rejected, relevance. Rejected, argumentative. Accepted. Rejected, legal conclusion, argumentative. COPIES FURNISHED: Melissa Fletcher Allaman Attorney at Law Post Office Drawer 1170 Tallahassee, Florida 32302 Jefferson M. Braswell Lisa M. Duchene W. Douglas Beason Assistant General Counsels Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint? Respondent's proposed findings of fact and conclusions of law and petitioner's proposed recommended order have been considered in preparation of the following findings of fact. Proposed findings of fact have been adopted for the most part, in substance, but they have been rejected when not supported by the weight of the evidence, immaterial, cumulative or subordinate.
Findings Of Fact At all pertinent times respondent Son-Mar Propane, Inc. operated as a liquefied petroleum gas dealer under license No. 0156030178 issued by petitioner. Liquefied petroleum gas is stored under pressure. A gallon of the liquid expands to 270 gallons of vapor, at normal temperatures and pressures. Because it is so much denser, the liquid occupies the bottom of any space in which both liquid and vapor are confined. If a storage tank stands upright, and the valve is open or there is a leak at or near the valve (by far the most common place for leaks), vapor will escape. But, if the cylinder is on its side, the top-mounted valve is low enough that liquid can escape, immediately to expand as vapor to 270 times its volume as liquid. More fuel increases the risk of fire. The agent of ignition is unknown in the present case. SAINT PATRICK'S DAY 1983 Raymond Towse is not a well man; fourteen surgical operations have taken their toll; and Loretta Towse was arthritic. On March 17, 1983, Mr. and Mrs. Towse discovered that there was no propane to cook breakfast with, so they put the empty tank into their customized, 1975 Dodge Tradesman 200 van. The tank, big enough to hold 239 pounds of water, stands 49 1/4 inches tall. Curtis Howard Jones, Jr., the next door neighbor who owned the tank and had made a loan of it to the Towses, regularly helped the Towses lift the tank, which weighed 71 pounds empty, into the van. After getting something to eat at K-Mart, Mr. and Mrs. Towse drove to respondent's place of business. On their way inside, Mr. Towse asked John Dahlem to fill the cylinder tank with propane. Mr. Dahlem, who can handle these tanks single-handedly, even when they are full, retrieved the tank from the van, filled it with liquefied petroleum gas, and replaced the filled tank in the van. Only he and Mrs. Towse witnessed this replacement and she is no longer alive. Mrs. Towse went inside to look at a stereo cassette recorder they were considering purchasing, then returned to the van without it. She climbed into the front seat on the passenger's side. Later she left the front seat of the van and moved, inside the vehicle, toward the cylinder tank. She may have heard gas escaping or seen liquid leaking. She may actually have reached the tank and turned the valve perhaps, inadvertently, the wrong way. When the explosion occurred, the tank lay horizontally across the bottom of the van, leaving only the carpet underneath to tell the color of the whole before the conflagration. A moan then a sigh, as Mrs. Towse breathed her last, followed the whoosh of the exploding fire, gasping for oxygen. The windshield and the skylight popped out. The frame buckled. The Pasco County Fire Service arrived at two o'clock and put the fire out. The tank was red hot. The valve lacked a half turn being closed. Forty- nine and a half pounds of liquefied petroleum gas had escaped to be consumed by the fire. Full, the tank had weighed 171 pounds. NO RECERTIFICATION The propane cylinder tank involved was manufactured in January of 1959. Mr. Dahlem filled this tank, No. 23860, with propane at least four times in the last three and a half years. It had never been recertified, even though "NFPA requires recertification 12 years after date of manufacture" (T. 41) and periodically thereafter. Recertification contemplates at least a visual inspection for rust, dents and gouges in the cylinder, and soaping the welds and valve to determine whether there are any leaks. If the cylinder passes the test, "they mark it `E' for external, then the month and the year that they do the inspection. It's stamped right in the top of the cylinder." (T. 41) NOT SECURED VERTICALLY The Towses' neighbor, Mr. Jones, who used to help lay the tank on its side in the van, also saw it lying on its side, ready for unloading, after having been filled and driven back, on at least three occasions. The tank was too tall to be made to stand upright in the van, Mr. Jones believed. Whether the tank is too tall in fact was unclear from the evidence. Measurements of the van after the fire suggest there would not have been room enough, but the fire caused buckling of the van's roof and maybe other changes. Measurement of another Dodge van with different customizing suggest that there may have been room enough to stand the tank vertically, after all, perhaps with as much as an inch clearance. The burn patterns leave no doubt that the cylinder lay on its side during the fire. The bottom of the tank, which has a diameter of 16 to 18 inches, was almost flush with the side of the van; the likelihood that the cylinder simply fell over is very small. Mr. Dahlem testified that, although the empty tank arrived lying down, he stood the tank upright in the van, after he filled it, but his testimony that he left the tank in a vertical position has not been credited. There is no dispute that he did not say anything to the Towses about securing it on March 17, 1983. DAHLEM ACTED FOR CORPORATION John Dahlem is the brother-in-law of one of the principals of Son-Mar, Inc. He has worked there for three and a half years. He cuts the grass, pumps gas and works on trucks in addition to filling propane tanks. Before he filled propane tanks himself, Mr. Dahlem watched it being done many times over a period of a year and a half. This was evidently the extent of his training. (T. 143-144) Mr. Dahlem testified that he had been instructed to check for certification but had failed to do so on the four occasions he refilled the tank the Towses used. At one time, but not on the day of Mrs. Towse's death, he did use soapy water to check for a leak, and discussed replacing part of the tank with the Towses: I had checked that tank previous when I . . . on the shroud because he had an option then. He could either have a standard valve put in, which would have been cheaper, because he would have bought just the cap; he wouldn't have needed the shroud. (T. 138-139). Mr. Berdeaux and Mr. Johnson, respondent's principals, told Mr. Dahlem he need not secure propane tanks he filled and placed in people's conveyances. "They had to tie the tank off themselves. . . I didn't have to tie it off. No, sir." (T. 143) STANDARDS The National Fire Protection Association publishes safety standards which include the following: 6115. Containers and their appurtenances shall be determined to be leak-free before being loaded into vehicles. Containers shall be loaded into vehicles with sub stantially flat floors or equipped with suitable racks for holding containers. Containers shall be securely fastened in position to minimize the possibility of movement, tipping over or physical damage. 6116. Containers having an individual water capacity exceeding 200 pounds shall be transported with the relief valves of containers in direct communication with the vapor space. * * * B-212. All containers, including those apparently undamaged, must be periodically requalified for continued service. The first requalification for a new cylinder is required within 12 years after the date of manufacture. Subsequent requalifications are required within the periods specified under the requalification method used. B-213. DOT regulations permit three alternative methods of requalification for most commonly used LP-Gas specification containers (see DOT regulations for permissible requalification methods for specific cylinder specifications). Two use hydrostatic testing, and the third uses a carefully made and duly recorded visual examination by a competent person. In the case of the two hydrostatic test methods, only test results are recorded but a careful visual examination of each container is also required. DOT regulations cite in detail the data to be recorded for the hydrostatic test methods, the observations to be made during the recorded visual examination method, and the marking of containers to indicate the requalification date and the method used. The three methods are outlined as follows: The water jacket type hydrostatic test may be used to requalify containers for 12 years before the next requalification is due. A pressure of twice the marked service pressure is applied, using a water jacket (or the equivalent) so that the total expansion of the container during the application of the test pressure can be observed and recorded for comparison with the permanent expansion of the container after depressurization. The following disposition is made of containers tested in this manner: Containers which pass the retest, and the visual examination required with it (see B-213), are marked with the date and year of the test (Example: "6-70", indicating requalification by the water jacket test method in June 1970) and may be placed back in service. Containers which leak, or for which the permanent expansion exceeds 10 percent of the total expansion (12 percent for Specification 4-E aluminum cylinders) shall be rejected. If rejected for leakage, containers may be repaired in accordance with B-220. The simple hydrostatic test may be used to requalify containers for 7 years before the next requalification is due. A pressure of twice the marked service pressure is applied but no provision is made for measuring total and permanent expansion during the test outlined in B-213(a) above. The container is carefully observed while under the test pressure for leaks; undue swelling or bulging indicating weaknesses. The following disposition is made of containers tested in this manner: Containers which pass the test, and the visual examination required with it (see B-213) are marked with the date and year of the retest followed by an "S" (Example: "8-715", indicating requalification by the simple hydrostatic test method in August 1971), and may be placed back in service. Containers developing leaks or showing undue swelling or bulging shall be rejected. If rejected for leaks, containers may be repaired in accordance with B-220. The recorded visual examination may be used to requalify containers for 5 years before the next requalification is due provided the container has been used exclusively for LP-Gas commercially free from corroding components. Inspection is to be made by a competent person, using as a guide Compressed Gas Association "Standards for the Visual Inspection of Compressed Gas Cylinders" (CGA Pamphlet C06, 1975), and recording the inspection results as required by DOT regulations. (Note: Reference to NLPGA Safety Bulletin Recommended Procedures for Visual Inspection and Requalification of ICC Cylinders in LP-Gas Service is also recommended). The following disposition is to be made of containers inspected in this manner: Containers which pass the visual examination are marked with the date and year of the examination followed by an "E" (Example: "7-70E," indicating requalification by the recorded visual examination method in July 1970), and may be placed back in service. Containers which leak, show serious denting or gouging, or excessive corrosion shall either be scrapped or repaired in accordance with B-220. Petitioner's Exhibit No. 1, NFPA No. 58 (1979 ed.). These provisions are adopted by reference in Rule 4B-1.01, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's license No. 0156030178. DONE and ENTERED this 29th day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1984. COPIES FURNISHED: Dennis Silverman, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Leslie King O'Neal, Esquire Markel, McDonough & O'Neal Post Office Drawer 1991 Orlando, Florida 32802 William Gunter, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301
Findings Of Fact Friends of Lloyd, Inc. is a Florida non-profit corporation formed for the purpose of protecting Jefferson County from harmful development. The Council of Neighborhood Associations of Tallahassee/Leon County (CONA) is a non- profit Florida corporation whose members are the neighborhood associations in Leon county; members of those associations reside in 42 Leon County neighborhoods dispersed throughout Leon County. CONA's purposes and goals include protection of the quality of life and environment in Leon County. The Thomasville Road Association's members are principally residents of Leon County. The Association was formed to promote responsible growth management in northern Leon County. None of the Petitioners are owners or "developers" of a Development of Regional Impact within the terms or scope of Chapter 380, Florida Statutes. Rather, Petitioners are members of non-profit organizations interested in the environment and growth management of Leon County. The Department of Community Affairs (the "Department") is the state land planning agency with the power and duty to administer and enforce Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. Sections 380.031(18), and 380.032(1), Florida Statutes (1987). Texaco is a business entity that proposes to develop a "tank farm" near the community of Lloyd in Jefferson County, Florida. The Texaco tank farm is a "petroleum storage facility" as that term is used in Rule 28-24.021, F.A.C. Colonial is a business entity that proposes to develop a petroleum pipeline that will connect to the Texaco tank farm. The pipeline is designed to carry and contain petroleum products For purposes of standing, the parties have stipulated that certain environmental hazards can reasonably be expected to occur as a result of the existence of the pipeline/tank farm. No competent evidence was submitted regarding those hazards. As a result of the stipulation, Petitioners have each established injury-in-fact so that they are "adversely affected" by the challenged rule to an extent sufficient to confer upon them standing to maintain this action under Section 120.56, Florida Statutes. On September 7, 1989, one of the Petitioners sent Respondent a letter suggesting that the proposed tank farm development to be built in Jefferson County should be required to undergo review as a DRI. Enclosed with the letter was a proposed circuit court complaint pursuant to Section 403.412(2)(c), Florida Statutes. Petitioner expressed its intention of filing this circuit court action, but first provided Respondent a copy of the proposed complaint in accordance with the provisions of Section 403.412, Florida Statutes. In two letters dated September 8 and 25, 1989, Petitioner supplied additional information to Respondent concerning the tank farm project and contended that in making its determination as to whether the development must undergo DRI review, Respondent should consider the storage capacity of both the tank farm and the pipeline. On October 9, 1989, Respondent answered Petitioner's first letter, and stated that the proposed project was not required to undergo DRI review because the total storage capacity of the tanks was only seventy-eight percent (78%) of the threshold set out in Chapter 28-24, F.A.C. On October 13, 1989, Respondent answered Petitioner's second and third letters, stating that with respect to the pipeline, it has been long standing departmental policy to interpret "storage facilities" as meaning only the tanks, not the pipeline, when determining whether petroleum storage facilities meet the DRI thresholds set out in Chapter 28-24. The proposed tank farm would have nine tanks with a total capacity of 155,964 barrels, which is, as Respondent determined in its letters, approximately seventy-eight percent (78%) of the applicable DRI threshold for "petroleum storage facilities" set forth in Chapter 28-24, F.A.C. The proposed pipeline's capacity over its approximate forty-five mile length from Bainbridge, Georgia to the tank farm is approximately 34,000 barrels. The proposed pipeline's volume flow capacity from the Florida/Georgia state line to the site of the prosed tank farm is approximately 13,500 barrels over approximately 18 miles. If the pipeline's volume capacity from Bainbridge, Georgia is added to the tank farm's volume capacity, the resulting project would be approximately ninety-five percent (95%) of the applicable DRI threshold in Chapter 28-24. If the pipeline's volume capacity from the state line is added to the tank farm's volume capacity, the resulting project would be approximately eighty-five percent (85%) of the threshold. In either instance, the project would exceed the eighty percent (80%) threshold that may require it to undergo DRI review although the project would be Presumed not to be a DRI under the Statute. The Department does not require developments outside Chapter 28-24's enumeration to undergo DRI review. The Department has never treated petroleum Pipelines as "petroleum storage facilities," or as otherwise subject to DRI review. On Several occasions, the Department has applied the petroleum storage facility guideline and standard to petroleum tank farms without determining whether a pipeline was attached to the tank farm. On one prior occasion, the Department has explicitly stated that Petroleum Pipelines are not subject to DRI review. The Petitioners contend that Department's Position that pipelines are not "petroleum storage facilities" is an invalid policy because it has not been adopted as a rule. There is no dispute the Department's Position on this issue has not been promulgated as a rule. If a facility were represented to be a Petroleum pipeline, but was actually designed as and operating as a petroleum storage facility, the Department would apply the Petroleum storage facility DRI guideline and standard to that facility.
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
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
