02-003525 Department Of Environmental Protection vs. Southeastern Liquid Analyzers, Inc. Status: Closed Recommended Order on Tuesday, January 20, 2004.

Summary: Petitioner proved by clear and convincing evidence that Respondent`s Statistical Inventory Reconciliation method for release detection did not comply with Chapter 62-761, F.A.C., and, therefore, its 1994 equipment approval should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3525

)

SOUTHEASTERN LIQUID )

ANALYZERS, INC., )

)

Respondent. )

_ __________________________________)

RECOMMENDED ORDER

Notice was given and on August 12 - 14, 2003, a final hearing

was held in this case. Pursuant to the authority set forth in

Sections 120.569 and 120.57(1), Florida Statutes, the final

hearing was con ducted by Administrative Law Judge, Charles A.

Stampelos, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Martha N. Hertzberg, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Melvin L. Roberts, Esquire

Qualified Representative

Roberts & D'Agostino

Post Office Box 460

York, South Carolina 29745

STATEMENT OF THE ISSUE

Whether the Department of Environmental Protection

(Department) proved by clear and convincing evidence that

Southeastern Liquid Analyzers, Inc.'s (SELA) 1994 equipment

approval for its Tank Chek Statistical Inventory Reconciliation

(SIR) method should be revoked?

PRELIMINARY STATE MENT

By letter dated April 18, 2001, the Department notified

SELA that its equipment approval for SELA's Tank Chek SIR method

was being revoked. The Department sought to revoke the

equipment approval because "[t]he Tank Chek algorithm has not

been evalua ted by a Nationally Recognized Laboratory, has not

been verified that it works as designed by a third party

laboratory, and has not been certified that it meets the

performance standards in Rule 62 - 761.640, Florida Administrative

Code, [sic] (1998)(F.A.C.) , as required by Rule 62 - 761.850(2),

F.A.C."

SELA contested the Department's decision to revoke the

equipment approval and requested a hearing. An Amended Petition

for Administrative Hearing was filed on December 6, 2001, and

the matter was referred to the Division of Administrative

Hearings (DOAH) for assignment of an Administrative Law Judge

(ALJ) to conduct a hearing.

SELA requested that Melvin L. Roberts, Esquire, appear as

its Qualified Representative. The request was granted.

On October 25, 200 2, the Department filed a motion

requesting that jurisdiction be relinquished to the Department.

SELA filed a response. A hearing was held on the motion on

November 8, 2002, and the motion was denied by Order dated

November 12, 2002.

On or about July 29, 2003, SELA filed a motion to re - align

the parties and to establish which party had the burden of proof

in this proceeding. A hearing was held on the motion on

August 7, 2003. By Order dated August 7, 2003, it was

determined that "in light of the Departm ent's April 18, 2001,

[letter] advising of its intent to revoke the 1994 'equipment

approval for Tankcheck SIR'," the parties were re - aligned and

the Department had the burden of proof in this proceeding and

that the standard of proof would be determined i n the

recommended order.

The parties were unable to agree to a pre - hearing stipulation

and each party filed a separate pre - hearing statement.

After granting several continuances, the final hearing was

held on August 12 - 14, 2003, in Tallahassee, Florida.

The Department presented the testimony of five witnesses:

Marshall T. Mott - Smith, Environmental Administrator, Storage

Tank Regulation Section, Bureau of Petroleum Storage Systems,

Department of Environmental Protection; Farid Moghadam, Engineer

III, Sto rage Tank Regulation Section, Bureau of Petroleum

Storage Systems, Department of Environmental Protection;

Marcel Moreau, of Marcel Moreau & Associates; Jonathan Reeder,

Environmental Specialist II, Tank Section, Southwest District

Florida Department of En vironmental Protection; and

Ernest Roggelin, Environmental Manager, Environmental

Engineering Division, Storage Tank Program, Pinellas County

Health Department. SELA examined Department witnesses, but did

not call any witnesses.

The Department's Exhibit s 1, 2 (pages VII and EPA logo page

and 13 - 20), 3, 4, 5, 7, 8, 11a, 11b, 11c, 11d, 12a, 12b, 12d

(pages 12 - 14 and 25 - 27), 13b, 14, and 22 were admitted into

evidence. The Department's Exhibits 15 - 21 were admitted into

evidence and official recognition tak en. Joint Exhibit 1, a

stipulation of facts, 1 and SELA's Exhibit 1, were admitted into

evidence. (Transcript, pp. 620 - 621.)

During the final hearing, the parties agreed that after the

issuance of the final order, all SELA software in the possession

of th e Department and its agents shall be returned to SELA and

any information derived therefrom shall be deleted from

Mr. Moreau's computer. (Transcript, pp. 430 - 431.)

The four - volume Transcript of the final hearing was filed

with DOAH on September 17, 2003.

After unopposed extensions of time were granted, the

parties filed proposed recommended orders which have been

considered in preparing this Recommended Order.

FINDINGS OF FACT

The Parties

SELA

1. 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

2. The Department has the statutory authority to establish

rules to implement the storage tank regulation program.

See § 376.303(1)(a), Fla. Stat.

3. 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).

4. Storage tank system equi pment 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.

5. Owners of non - regulated tanks do not have to use

approved storage tank system equipment becaus e 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).

6. 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 t o 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).

7. 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

Lab oratory 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 ce rtification 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).

8. The function of a third - party evaluation is to verify

the accuracy of the performance of a particular p iece of release

detection equipment in light of the performance standards.

9. 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

unle ss expressly excepted by rule. See Fla. Admin. Code R. 62 -

761.850(2) (1998). Compare Rule 17 - 761.860 (1992).

10. The Department does not have the discretion, however,

to deny a request for equipment approval if the applicant

satisfies all of the requiremen ts 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 quart erly.

11. 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

Depart ment view an equipment approval as a license.

12. 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.

13. 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

14. 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.

15. 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.

16. The third - party evaluation was c onducted by Wayne E.

Hill of PetroWorks. In 1993, at the time of the third - party

evaluation, PetroWorks was a Nationally Recognized Laboratory.

17. 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

18. 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

t hat 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).

19. 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 o f 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

20. The general leak detection performance standard o f

"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).

21. SELA's 1993 Petro Works 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 Ta nk 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.

22. 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 a ccording to the

U.S. EPA's 'Standard Test Procedure for Evaluating Leak

Detection Methods: Statistical Inventory Reconciliation

Methods.'"

23. The State of Florida has not adopted the EPA protocol

because the Department does not perform third - party evaluatio ns

of SIR release detection software. However, the Department

accepts third - party evaluations that are run based on the EPA

protocol.

24. 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

regula ted owner or operator of an underground storage tank. The

instructions in the EPA Protocol for SIR formed the basis for

performing third - party evaluations.

25. The three - page "SIR Method Results Form" indicates

that PetroWorks evaluated SELA's "Statisticall y 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 r esults

(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.)

26. 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 th is response

is: "Qualitative (Tight/Leaking/Inconclusive)."

("Tight/Leaking/Inconclusive" corresponds to

"Pass/Fail/Inconclusive.")

27. A "Reporting Form for Test Results" is included with

the PetroWorks evaluation. There are 1 through 120 record

numbers wi th a "Submitted" "Induced Leak Rate (gal/h)" heading

for a vertical column. (The numbers listed vertically are

either "0" or "0.1.")

28. "The Results Reported by Vendor" are stated under two

categories: (1) "If Quantitative," and below with two separate

ve rtical 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

co lumn 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.

29. 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 Departme nt's 1994 Approval of SELA's SIR Method

30. 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: "Base d 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

e nvironmental 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

31. In 1994 and 1996, the Department made minor revisions

to the underground storage tank systems rules and Chapter 17 - 761

became Chapter 62 - 761.

32. 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.

33. 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 S ELA. (Other persons at the Department

including the Office of General Counsel, participated in the

discussions.)

34. 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 rep orted.

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:

1. Entropy Limited, EQ - 018

2. Horner Products, SIR Pro 1, Versions 1.0

and 2.0, EQ - 126

3. Syscorp, Inc., EQ - 179

4. South Eastern Liquid Analyzers, Inc., EQ -

157

5. 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 s pecifically 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.

35. On Ma y 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."

36. 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 w ould 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.)

37. 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 Q ualitative 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

offi ce 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

u se 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 r eview

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.

38. 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

wh ether 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.)

39. Mr. Moghadam evaluate d 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.

40. 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 n ew third - party evaluation as determined

by Mr. Moghadam.

41. 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 s tandards 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).

42. Chapter 62 - 761, Florida Administrative Code (1998),

does not specify that previously - approved equipmen t 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 f elt

it was necessary to determine whether previously - approved

equipment continued to satisfy the requirements of Florida

Administrative Code Rule 62 - 761.850(2) (1998).

43. The issue in this case is not whether SELA's Tank Chek

SIR method can produce and repo rt 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).

44. SELA declined to obtain a new thir d - 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 com plied with the

performance standards in Chapter 62 - 761, Florida Administrative

Code.

45. Other than the PetroWorks evaluation of SELA's SIR

method performed in 1993, SELA has not provided the Department

with another third - party evaluation.

46. On April 18, 2001, t he 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 p erformance

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 ef fective 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 storag e 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

47. 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.

48. 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).

49. 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 SI R. 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).

50. Under the 1998 revised rule s, 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.

51. The SIR - specific performance s tandards are intended to

limit use of SIR to quantitative SIR methods only and to

eliminate the use of qualitative SIR methods in Florida.

52. Marshall Mott - Smith, the Department's Environmental

Administrator, Storage Tank Regulation Section, Bureau of

Petrol eum 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 e xperience and discussion with experts

indicated that qualitative SIR methods were not really working

and were problematic.

53. There are two types of SIR methodology, qualitative

and quantitative. The major distinction between a qualitative

SIR and a quantit ative 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.

54. 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 "in conclusive" results is not

a quantitative SIR method.

55. 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.

56. Prior versions of t he 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 (1 992) 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).

57. The performance standard s 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 Fl orida

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

58. Florida Administrative Code Rule 6 2 - 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" requirem ents a. through i.

59. 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, t he

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 6 2 -

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.

60. A performance standard is something that determines

the performance of the method; something th at 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.

61. The requirement tha t 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 6 2 - 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

62. 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 produ ce 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. Admi n. Code R. 62 - 761.850(2)(b) and (c) (1998).

63. 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 res ults are accurate or

reliable. Determining whether the results produced by a

particular SIR method are reliable is the purpose of a third -

party evaluation.

64. As noted above, SELA has never had a third - party

evaluation that demonstrates that Tank Chek S IR 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 gener al

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

requir ed compliance only with the general performance standard

of "0.2 gallon per hour." Fla. Admin. Code R. 17 - 761.610(5)

(1992).

65. 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.

66. The 1993 PetroWorks evaluation specifically noted that

the SIR method results are on the basis of "qualitati ve 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.

67. The 1993 Petro Works 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 Co de Rule 62 - 761.640(3)(c)3. (1998), were

not included in Chapter 17 - 761 in 1993.

68. 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

prerequisit e to an equipment approval. SELA needs a new

equipment approval to comply with Florida Administrative Code

Rule 62 - 761.850(2) (1998).

CONCLUSIONS OF LAW

Jurisdiction

69. The Division of Administrative Hearings has

jurisdiction over the parties and the subje ct matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

Burden of Proof

70. In 1994, the Department approved SELA's request for

the use of the Tank Chek SIR method for release detection in the

State of Florida. "'License' means a franchise, permit,

certification, registration, charter, or similar form of

authorization required by law. . . ." § 120.52(9), Fla. Stat.

"'Licensing' means the agency process respecting the issuance,

denial, renewal, revocation, suspension, annu lment, withdrawal,

or amendment of a license or imposition of terms for the

exercise of a license." § 120.52(10), Fla. Stat.

71. In order to revoke a license, an agency must serve the

licensee with an administrative complaint. § 120.60(5), Fla.

Stat.

72. It is u ncertain whether the Department issued a

"license" to SELA when it approved its equipment in 1994.

Nevertheless, the Department, in its April 18, 2001, letter,

sought to revoke the prior equipment approval. The Department's

letter is comparable to, and i s treated as, an "administrative

complaint." See Cottrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); see also Fla. Admin. Code R. 28 -

107.004(2) and (4).

73. Whether the standard of proof is by a preponderance of

the evidence or cle ar and convincing is also uncertain. In

light of this uncertainty, the higher burden is applied here.

Accordingly, the Department has the burden of proving by clear

and convincing evidence that revocation of SELA's 1994 equipment

approval is appropriate. See Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA

1977)("The general rule is, that as in court proceedings, the

burden of proof, apart from statute, is on the party asserting

the affirmative of an issue bef ore an administrative tribunal.")

See also Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); § 120.57(1)(j), Fla. Stat.

Department Authority to Regulate Petrole um Storage Systems

74. The storage of pollutants and hazardous substances

"within the jurisdiction of the state and state waters is a

hazardous undertaking." § 376.30(2)(a), Fla. Stat. Discharges

of pollutants and hazardous substances "that occur as a result

of procedures taken by private and governmental entities

involving the storage, transportation, and disposal of such

products pose threats of great danger and damage to the

environment of the state. . . ." § 376.30(2)(b), Fla. Stat.

See also § 376.3071( 1)(a) - (c), Fla. Stat.

75. The Department has the power and the duty to

"[e]stablish rules, including, but not limited to, construction

standards, permitting or registration of tanks, maintenance and

installation standards, and removal or disposal standards, to

implement the intent of ss. 376.30 - 376.319 and to regulate

underground and aboveground facilities and their onsite integral

systems." § 376.303(1)(a), Fla. Stat.

76. Failure to comply with a rule adopted by the

Department pursuant to its lawful authority is a violation and

prohibited § 376.302(1)(b), Fla. Stat.

77. The Department has promulgated rules pertaining to the

regulation of petroleum storage systems to implement Section

376.303, Florida Statutes. See , e.g. , Fla. Admin. Code. R. 62 -

761.100, et seq . (1998).

78. "Except for aboveground mineral acid storage tank

systems, the purpose of [Chapter 62 - 761] is to provide standards

for the registration, construction, installation, operation,

maintenance, repair, closure, and disposal of storage tank

systems th at store regulated substances, and to minimize the

occurrence and environmental risks of release and discharges.

This chapter provides standards for underground storage tank

systems having individual storage tank capacities greater than

110 gallons, and a boveground storage tank systems having

individual storage tank capacities greater than 550 gallons."

Fla. Admin. Code R. 62 - 761.100(1) (1998). An owner or operator

of a regulated storage tank system must register with the

Department. Fla. Admin. Code R. 62 - 761.400(1)(a) (1998).

79. Category - A and Category - B underground storage tanks

are required to be equipped with one or more of several

enumerated release detection systems including "[a] statistical

inventory reconciliation system with a tightness test of the

storage tank every three years." Fla. Admin. Code R. 62 -

761.610(2)(f) (1998). See also Fla. Admin. Code R. 62 - 761.500 -

510 (1998). See Endnote 5. The release detection method "shall

meet the performance standards contained in Rule 62 - 761.640,

F.A.C. " Fla. Admin. Code R. 62 - 761.610(1)(a) (1998). See also

Fla. Admin. Code R. 62 - 761.610(1)(b) (1998) relating to

Category - C systems.

80. Department rules require notification of the discovery

of, for example, "[a] failed SIR evaluation, or inconclusive SIR

ev aluations as specified in Rule 62 - 761.640(3)(c)3., F.A.C., or

a failed or inconclusive tightness, pressure, or breach of

integrity test." Fla. Admin. Code R. 62 - 761.450(2)(a)1. (1998).

Storage Tank System Leak Detection Equipment

81. A "storage tank system" i s defined as "a tank used to

contain regulated substances, its integral piping, and all its

components, including dispensing systems, spill containment

devices, overfill protection devices, secondary containment

systems, and any associated release detectio n equipment ." Fla.

Admin. Code R. 62 - 761.200(79) (1998). (Emphasis added.) See

also Rule 17 - 761.200(38) (1992).

82. As a release detection methodology, the SIR computer

method is a piece of equipment that is subject to equipment

approval pursuant to Florida Administrative Code Rule 62 -

761.850(2) (1998), and was the subject of approval in 1994, Rule

17 - 761.860 (1992).

83. The equipment approval request must include a

"demonstration that the equipment will provide equivalent

protection or meet the appropriate pe rformance standards

contained in this chapter." Fla. Admin. Code R. 62 -

761.850(2)(b) (1998). A third - party demonstration of the

equipment by a Nationally Recognized Laboratory is required in

order to successfully obtain equipment approval from the

Depart ment. Fla. Admin. Code R. 62 - 761.850(2)(c) (1998). This

"demonstration shall provide: 1. A technical evaluation of the

equipment; 2. Test results that verify that the equipment will

function as designed; and 3. A professional certification that

the equi pment meets the performance standards contained in Rule

62 - 761.500, F.A.C." Id.

84. A review of the 1992 and 1994 versions of the storage

tank system rules recited herein indicates that SIR was not

specifically referenced as a release detection methodology. SIR

was indirectly referenced as "other similar release detection

method." Rule 17 - 761.610(5) (1992); Rule 62 - 761.610(5) (1994).

85. Also, under the 1992 and 1994 versions of these rules,

either a "qualitative" or a "quantitative" SIR methodology was

accepta ble to comply with these rules, because no rule specified

the numeric results that a SIR method must produce in order to

be in compliance with the rule. See Rule 17 - 761.610(5) (1992)

and Rule 61 - 761.610(5) (1994).

86. Although the 1992, 1994, and 1998 rules p rovide for

the general release detection standard of "0.2 gallon per hour,"

neither Chapter 17 - 761 (1992), nor Chapter 62 - 761 (1994)

contained performance standards specific to SIR. In 1998, the

Department amended the rule adding performance standards

spe cific to SIR at Florida Administrative Code Rule 62 -

761.640(3)(c)3. (1998). See also Fla. Admin. Code R. 62 -

761.600(1)(a)3. (1998); Fla. Admin. Code R. 62 - 761.610(2)(f)

(1998).

87. Florida Administrative Code Rule 62 - 761.640(3)(c)3.b.,

(1998), requires that t he results of the monthly analyses for

the SIR method "include the calculated results from the data set

for leak threshold, the minimum detectable leak rate, the

calculated leak rate, and a determination of whether the result

was 'Pass,' 'Fail,' or "Inconc lusive.'" 6

88. The evidence established that a quantitative SIR

methodology requires the production and reporting of leak rates.

By definition, Florida Administrative Code Rule 62 -

761.640(3)(c)3.b. (1998), allows only the "quantitative" SIR

methodology to be used in Florida.

89. SELA argues that the equipment approval cannot be

revoked because Chapter 62 - 761, Florida Administrative Code,

does not expressly provide for revocation of SELA's equipment

approval. On the other hand, no party disputes that the

Depart ment had the authority to approve SELA's SIR method in

1994.

90. "[A]dministrative bodies have no common law powers.

They are creatures of the Legislature and what powers they have

are limited to the statutes that create them." State ex rel.

Greenberg v. Fl orida State Board of Dentistry , 297 So. 2d 628,

636 (Fla. 1st DCA 1974)(citations omitted), cert. dismissed , 300

So. 2d 900 (Fla. 1974).

91. The storage of significant quantities of petroleum and

petroleum products in underground storage tanks is declared to

be a hazardous undertaking. §§ 376.30 and 376.3071, Fla. Stat.

Discharges are to be detected and avoided. Id. Owners and

operators of regulated facilities are required to establish and

maintain evidence of financial responsibility to meet the

liabiliti es which may be incurred under Sections 376.30 - 376.319,

Florida Statutes. § 376.309(1), Fla. Stat. Elaborate release

detection method rules have been promulgated many of which have

been cited herein.

92. The remedies provided in Sections 376.30 - 376.319,

Flor ida Statutes, are cumulative and not exclusive.

§ 376.313(1), Fla. Stat. For example, except as otherwise

provided, any person can bring a cause of action for all damages

resulting from a discharge covered by these sections. A showing

of negligence is not required. § 376.313(3), Fla. Stat.

However, Subsection 376.313(3) does not apply if it can be

proven, at the time of the discharge, that, in part, "[a] leak

detection system or systems or a monitoring well or wells were

installed and operating in a m anner consistent with technical

requirements of chapter 62 - 761, Florida Administrative Code, as

that chapter may hereafter be amended." § 376.313(4)(b), Fla.

Stat.

93. The Legislature gave the Department the express

authority to regulate certain storage ta nks and the authority to

promulgate rules which would authorize the use of, for example,

the SIR method of release detection equipment. The Legislature

also contemplated amendments to Chapter 62 - 761, Florida

Administrative Code.

94. There is no dispute that S ELA obtained equipment

approval for its Tank Chek SIR method pursuant to the 1992 rules

and that the Tank Chek SIR method met the requirements of the

rules at that time.

95. The issue in this case is not whether SELA's Tank Chek

SIR method is capable of prod ucing leak rates required by

Florida Administrative Code Rule 62 - 761.640(3)(c)3. (1998). It

is capable of producing a report with these values. The issue

is whether SELA's 1993 PetroWorks evaluation remains valid after

the 1998 amendments.

96. SELA no longer satisfies the requirements for an

equipment approval pursuant to Florida Administrative Code Rule

62 - 761.850(2) (1998), because the PetroWorks evaluation did not

and could not demonstrate or certify that the Tank Chek SIR

method complies with the 1998 per formance standards in Florida

Administrative Code Rule 62 - 761.640(3)(c)3. (1998).

97. It necessarily follows that owners and operators of

regulated storage tanks may not use SELA's SIR method and comply

with existing release detection method requirements. To allow

non - conforming equipment to remain on a Department equipment

approval list, which explicitly authorizes its use in the State

of Florida by regulated storage tank owners and operators, is at

odds with the legislative intent recited above and potential ly

exposes these persons to liability.

98. Given the nature and scope of the statutes recited

herein and the nature and scope of a release detection method

equipment approval in light of those statutes, the Department

has the authority to revoke SELA's equip ment approval. See

generally State Board of Education v. Nelson , 373 So. 2d 114

(Fla. 1st DCA 1979). 7

99. The Department has shown by clear and convincing

evidence that SELA does not comply with Florida Administrative

Code Rule 62 - 761.850(2) (1998), that SELA's 1993 PetroWorks

evaluation does not demonstrate SELA's compliance with the

performance standards of Florida Administrative Code Rule 62 -

761.640(3)(c)3. (1998), and that, therefore, the 1994 equipment

approval should be revoked.

RECOMMENDATION

Ba sed 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

approv al 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 Hearing s

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of January, 2004.

ENDNOTES

1 / The parties stipulated to the following facts:

1. In 1994, [SELA] Tank Chek Statistical Inventory

Reconciliation (SIR) equipment was evaluated by Wayne

Hill of Petroworks [sic] and received third party

approval .

2. Wayne Hill and Petroworks [sic] in 1993 and 1994

were a nationally recognized laboratory.

3. The certification shows and verifies that SELA's

Tank Chek SIR works as it was designed by a third

party.

4. The State of Florida Department of Environm ental

Protection on January 21, 1994, by John M. Ruddell,

Director issued an approval for storage tank system

and release detection equipment to SELA for and

authorized the use of Tank Chek SIR for release

detection in the State of Florida.

2 / The underg round storage tank systems rules, in 1993, were

under Chapter 17 - 761 (1992), which contained a single

performance standard for release detection methods at Rule 17 -

761.610(5) (1992). See Finding of Fact 18.

3 / The Department, in its 1994 approval of SEL A's SIR method,

found that it "will provide environmental protection

substantially equivalent to that provided by compliance with the

requirements established in Florida Administrative Code Rule,

[sic] 17 - 761.640(6)[1992]" which provided: "Automatic tank g auge

systems shall be capable of detecting 0.2 gallons per hour leak

rate with a probability of detection of 0.95 and a probability

of false alarm of 0.05." See Finding of Fact 30.

4 / Marcel Moreau explained the problems associated with

inventory contro l which led to the development of SIR and the

EPA Protocol for SIR. He credibly explains:

Inventory control in the gasoline industry is

keeping track of how much is in the underground

storage tank to try and determine whether any is

missing. And the ba sic procedure is to measure

how much is in the underground storage tank, keep

track of how much is delivered into that tank,

how much is taken out, and that gives you --

allows you to calculate a number of how much is

left in that underground storage tank, or how

much ought to be in that tank.

And then you go out and physically measure

how much is the tank and you compare what you

predicted to be in there based on your

measurements and what you actually find in the

tank based on your physical measurement of the

tank. And the differences in those two numbers I

refer to as the variance. Typically these

measurements are made on a daily basis, so that's

the daily variance.

Now, measuring or determining the volume of

product in underground storage tank is o ftentimes

done with nothing more sophisticated than an

extra long ruler, about a 16 - foot stick that is

inserted into the underground storage tank, and

you bring it back up and you see how far up the

stick is wet, and that gives you a number of

inches. And then you go to a piece of paper,

which is a tank chart provided by the tank

manufacturer, and you look up on the chart how

many inches you have, and that tells you how many

gallons. So that procedure, there's a lot of

room for error in terms of reading t he stick,

going to the tank chart, having the proper chart,

all that kind of stuff. So it's a measurement

that includes a fair amount of error. The meters

that dispense gasoline, which is how you measure

how much you've sold, are accurate to about a

half a percent, so there's an error incorporated

into that measurement as well. The amount of

product that's delivered into the tank is

measured when it's put into the truck, but it's

not measured when it's put into the underground

storage tank, so there's a certain amount of

error inherent in the delivery volume as well.

So when you put all those errors together,

what happens is that your predicted amount in the

tank based on the calculations is never the same

as what's actually in the tank. However, a lot

of these errors are measurement errors that are

random, which means some days you're going to

find more product in the tank than you think

there ought to be, and some days there will be

less product in the tank than you think there

ought to be. So over a period of time, say 30

days, a month, if you add up your daily

variances, these plusses and minuses are going to

cancel out so that by the end of the month, your

total variance at the end of the month is

relatively small.

If you have a leak in the system, however,

then you're going to tend to find less product in

the tank than you think is there more often, and

when you add up your daily variances, you're

going to end up with a larger number, and that's

your indication that there's a problem with the

syste m. So that's how basic, ordinary inventory

control works, and that's been standard in the

industry since the industry existed, basically,

for the last 75 years.

So the problem was that all of these errors and

measurements would confuse the picture with i nventory

control so that at the end of the month, it was very

hard for a person to say whether or not there's a

problem. So about 1980, thereabouts, Warren Rogers

set about -- who is a Ph.D. statistician -- set about

to apply statistics to this problem of trying to

figure out what was going on with inventory control,

and he developed a method that he calls statistical

inventory reconciliation to sort of see through some

of all these measurement errors and get a better idea

of whether or not there is, in fa ct, a leak as

represented by the inventory records or not. So SIR

is an additional layer of calculation or data analysis

that is added on to the basic inventory control

information.

5 / Florida Administrative Code Rule 62 - 761.600 (1998) provides

for "Rel ease Detection Standards." Florida Administrative Code

Rule 62 - 761.600(1)(a)3. provides: "(1) General. (a) Storage

tank systems shall have a method or combination of methods, of

release detection that:. . .3. Meets the applicable performance

standards in Rule 62 - 761.640, F.A.C. . . . ." See also Fla.

Admin. Code R. 62 - 761.610(2)(f)(authorizing Category - A and

Category - B underground storage tanks to be equipped with a SIR

system (among other release detection systems) with a tightness

test of the storage t ank every three years.)

6 / All release detection devices are required to be tested

annually to ensure proper operation. Inventory control must be

performed for underground and aboveground storage tanks

containing vehicular fuel that do not have secondar y containment

and one of several methods, including SIR in accordance with

Florida Administrative Code Rule 62 - 761.640(3)(c)3, shall be

used. Fla. Admin. Code R. 62 - 761.700(1)(c)3. and 6.b.

7 / Although there might be other reasonable interpretations, an

agency's interpretation of a statute that it administers is

entitled to great weight even if the agency's interpretation is

one of several permissible interpretations. Doyle v. Department

of Business Regulation , 794 So. 2d 686, 690 (Fla. 1st DCA 2001);

S tate Department of Health and Rehabilitative Services v. Framat

Realty, Inc. , 407 So. 2d 238, 241 - 242 (Fla. 1st DCA 1981). See

also Golfcrest Nursing Home v. State, Agency for Health Care

Administration , 662 So. 2d 1330, 1333 (Fla. 1st DCA 1995). ("An

ag ency's interpretation of its own rules and regulations is

entitled to great weight, and shall not be overturned unless the

interpretation is clearly erroneous.")

COPIES FURNISHED :

Martha N. Hertzberg, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Melvin L. Roberts, Esquire

Roberts & D'Agostino

Post Office Box 460

York, South Carolina 29745

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwe alth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.