05-000529RP Florida Petroleum Marketers And Convenience Store Association vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Thursday, June 16, 2005.

Summary: Petitioner proved that proposed rule 62-770.220(3)(b) and a portion of proposed rule 62-770.220(4) are invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PETROLEUM MARKETERS AND )

CONVENIENCE STORE ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0529RP

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

This case involves a challenge to a proposed rule and is

resolved based up on consideration of motions for summary final

order filed on behalf of Petitioner, Florida Petroleum Marketers

and Convenience Store Association (Florida Petroleum) , and

Respondent, Department of Environmental Protection (Department).

APPEARANCES

For Petitioner: Robert D. Fingar, Esquire

Frank & Gramling, P.A.

3323 - C Thomasville Road

Tallahassee, Florida 32308

For Respondent: W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwe alth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

There are three legal issues which remain for

determination: (1) Whether Florida P etroleum has standing in

this case; (2) Whether proposed rule 62 - 770.220(3)( b), requiring

constructive notice to residents or business tenants of real

property into which the temporary point of compliance is allowed

to extend is an invalid exercise of delegated legislative

authority within the meaning of Section 120.52(8)(c), Flor ida

Statutes; and (3) Whether proposed rule 62 - 770.220(4), requiring

additional constructive notice of the status of site

rehabilitation is an invalid exercise of delegated legislative

authority within the meaning of Section 120.52(8)(c), Florida

Statutes. i

PRELIMINARY STATEMENT

On December 23, 2004, the Department published a Notice of

Proposed Rulemaking regarding amendments to Florida

Administrative Code Chapter 62 - 770.

On February 14, 2005, Florida Petroleum filed a Petition

for Determination of In validity of Proposed Rule challenging the

validity of proposed rule 62 - 770 .220(3)(b) and (4).

The case was set for hearing to commence on March 17, 2005.

However, on March 4, 2005, the Department published a Notice of

Change regarding the above - referen ce Notice of Proposed

Rulemaking. As a result, an unopposed motion for continuance

was granted and the final hearing was rescheduled to commence on

May 26, 2005.

On May 13, 2005, the Department filed a motion for summary

final order. Thereafter, pre - h earing conferences were held on

May 19 and 20, 2005, to discuss the status of the case.

Ultimately, the parties agreed to stipulate to relevant facts

and the final hearing was cancelled.

On May 16, 2005, the Department's motion requesting the

undersign ed to take official recognition of the Department's

official notices with respect to the proposed rulemaking was

granted without objection.

On May 18, 2005, Florida Petroleum filed a motion

requesting official recognition of the Enrolled version of Hous e

Bill ( HB ) 937 from the 2005 legislative session , the Florida

Ho use of Representatives and Senate votes on HB 937, the

original filed version of HB 937, and Florida Administrative

Code Chapter 62 - 771. The Department filed a motion to strike

the request. Florida Petroleum’s motion is granted , and i t is

noted that HB 937 became law and appears as Chapter 2005 - 50,

Laws of Florida.

On May 26, 2005, Florida Petroleum filed a motion for

summary final order and a response to the Department ' s motion

for summary final order .

On June 9, 2005, the parties filed a Joint Pre - Hearing

Stipulation in which the parties agreed, in part, to adopt the

proposed findings of fact (1 - 4) set forth in the Department’s

motion for summary final order and several paragraphs reci ted in

section (e) of the Joint Pre - Hea ring Stipulation. These agreed -

to findings of fact have been incorporated into this Recommended

Order as findings of fact.

On June 13, 2005, the Department filed a response to

Florida Petroleum's motion for summary final order .

FINDINGS OF FACT

1. On December 23, 2004, the Department published a Notice

of Proposed Rulemaking regarding amendments to Florida

A dministrative C ode C hapter 62 - 770. In particular, proposed

rule 62 - 770.220(3)(b) and (4), provide s :

(3) Subsequent Notice of Contamination

Beyond Source Property Boundaries for

Establishment of a Temporary Point of

Compliance (TPOC) - Prior to the Department

authorizing a temporary extension of the

point of compliance beyond the boundary of

the source prop erty (i.e., the location from

which the contamination originates) in

conjunction with Natural Attenuation

Monitoring pursuant to Rule 62 - 770.690,

F.A.C., or Active Remediation pursuant to

Rule 62 - 770.700, F.A.C., the PRSP shall

provide the following notice s:

* * *

(b) Constructive notice to residents [if

different from the real property owner(s)

notified pursuant to paragraph 62 -

770.220(3)(a), F.A.C.] and business tenants

of any real property into which the point of

compliance is allowed to extend. Su ch

constructive notice, which shall include the

same information as required in the actual

notice, shall be provided by complying with

the following:

* * *

(4) Status Update 5 - Year Notice - When

utilizing a TPOC beyond the boundary of the

source propert y to facilitate natural

attenuation monitoring or active

remediation, an additional notice concerning

the status of the site rehabilitation shall

be similarly provided every five years to

[the classes of] those persons who received

notice pursuant to subse ction 62 - 770.220(3),

F.A.C., unless in the intervening time, such

persons have been informed that the

contamination no longer affects the property

into which the point of compliance was

allowed to extend.

* * *

(The language in brackets was added pursua nt to the Department's

Notice of Change and "those" was deleted.) The proposed rule

implements Section 376.3071, Florida Statutes. The specific

authority for the proposed rule is Sections 376.303 and

376.3071, Florida Statutes.

2. On February 2, 2005, the Environmental Regulation

Commission held a public hearing on the proposed rules and

approved the proposed rules with certain amendments.

3. On February 14, 2005, Florida Petroleum filed a

Petition for Determination of Invalidity of Proposed Rule

(P etition) challenging the validity of proposed amendments to

pro pose d rule 62 - 770.220(3)(b) and (4). The P etition was filed

pursuant to Section 120.56(1) and (2), Florida Statutes, and in

each instance, Florida Petroleum alleges that the proposed rule

viol ate s Section 120.52(8)(c), Florida Statutes.

4. On March 4, 2005, the Department published a Notice of

Change regarding the above - referenced Notice of Proposed

Rulemaking. With respect to the pending proceeding, the Notice

of Change reflect s revisions to language of proposed rule 62 -

770.220(4), which are not subject to challenge. See Finding of

Fact 1.

5. On May 16, 2005, without objection, official

recognition was taken of the Department's Notice of Proposed

Rulemaking and Notice of Change.

6. Florida Petroleum is a Florida voluntary, non - profit

trade association , which comprise, in part, approximately 194

Marketer Members who own and/or operate petroleum storage system

facilities in Florida.

7. F lorida Petroleum’s purposes include providing

representation on behalf of its members in legislative and

regulatory matters before the Florida legislature and agencies.

F lorida P etroleum routinely represents its members in rule

development proceeding and other regulatory matters before the

Departme nt of Environmental Protection, Department of Revenue,

and Department of Agriculture and Consumer Services.

8. Florida Petroleum’s By - Laws state that its purposes

include advancing the business concerns of its members, pooling

the energy and resources of its members, and communicating with

elected officials at the national, state, and local levels of

government. Towards those ends, F lorida Petroleum has

represented it members before the Florida L egislature in matters

relating to the regulation of petro leum facilities under Chapter

376, Florida Statutes, and has appeared before the Department in

rulemaking proceedings involving the regulation of petroleum

cleanups, and the various state restoration funding assistance

programs. The subject matter of the rule at issue is within the

general scope of interest and activity of F lorida Petroleum, in

particular, its m arketer m embers, who own or operate facilities

that store petroleum products for consumption, use, or sale.

9. Florida Petroleum submitted oral and written comments,

recommendations, objections, and proposed amendments to the

Department and the Environmental Regulation Commission in

connection with the rules at i ssue in this case.

10. A substantial number of F lorida Petroleum m arket er

m embers are "persons responsible" for assessment and remediation

of one or more petroleum - contaminated sites. Florida

Administrative Code Chapter 62 - 770, governs the remediation of

petroleum - contaminated sites.

11. A substantial number of F lorida Petroleum’ s m arket er

m embers are "persons responsible" for assessment and remediation

of sites identified by the Department as "confirmed" or

"suspected" sources of contamination beyond the boundary of the

facility ( i.e. , "off - site contamination").

12. In certai n instances, the Department's rules allow for

the use of No Further Action with Conditions procedures in cases

of petroleum contamination where applicable regulatory

requirements are met because the use of conditions , such as

institutional and engineering controls , may be more cost -

effective than active remediation.

13. As of February 2005, the Department estimated that it

had reports of approximately 23,000 petroleum - contaminated

sites. In 2004, the Department received an estimated 539

Discharge Repor t Forms in connection with petroleum storage

facilities.

14. As of March 2005, the Department had information

indicating that approximately 2 , 000 "off - site" properties have

been affected by contamination. Assessment Reports filed with

the Department i ndicate that a substantial number of these sites

may have been affected by discharges of petroleum or petroleum

products.

15. Petroleum discharges will in all likelihood continue

to occur in the future at petroleum facilities.

16. Petroleum dischar ges will in all likelihood continue

to affect off - site properties in the future.

CONCLUSIONS OF LAW

Jurisdiction

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § § 120.56, 120 .569, and 120.57(1), Fla. Stat.

Standing

18. Florida Petroleum has standing to initiate this

proceeding. See NAACP, Inc. v. Florida Board of Regents , 8 63

So. 2d 294 (Fla. 2003).

Invalid Exercise of Delegated Legislative Authority

19. Any substanti ally affected person may seek an

administrative determination of the invalidity of any proposed

rule by filing a petition seeking such a determination with the

Division of Administrative Hearings within the time set forth in

Section 120.56(2)(a), Florida S tatutes. In this proceeding,

Florida Petroleum has the burden of going forward and the

Department then has the burden to prove by preponderance of the

evidence that the proposed rule is not an invalid exercise of

delegated legislative authority as to the objections raised by

Florida Petroleum. Id.

20. The proposed rule is not presumed to be valid or

invalid. § 120.56(2)(c), Fla. Stat.

21. "'Invalid exercise of delegated legislative authority'

means action which goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or existing rule is an

invalid exercise of delegated legislative authority if,"

material here, the rule “ enlarges, modifies , or contravenes the

specific provisions of law implemented, citation to which i s

required by s. 120.54(3)(a)1." § 120.52(8)(c), Fla. Stat.

2 2 . In Southwest Florida Water Management District v. Save

the Manatee Club, Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000) ( Save

the Manatee ), the court stated :

[a] rule that is used to implement or carry

out a directive will necessarily contain

language more detailed than that used in the

directive itself. Likewise, the use of the

term 'interpret' suggests that a rule will

be more detailed than the applicable

enabling statute. There would be no need

for interpretation if all of the details

were contained in the statute itself.

It follows that the authority for an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

a uthority for the rule, not whether the

grant of authority is specific enough.

Either the enabling statute authorizes the

rule at issue or it does not. As the

Florida Chamber of Commerce said in its

brief, this question is one that must be

determined on a case - by - case basis.

Id. a t 599. See also Board of Trustees of the Internal

Improvement Trust Fund v. Da y Cru i se Ass ociation , Inc. , 794 So

2d 696 , 700 (Fla. 1st DCA 2001) (agency may adopt r u les "only

whe re the L egislat ure has enacted a specific statut e, and

authorized the agency to implement it , and the n only if the

(proposed) r u le implements or interprets specific powers or

duties") .

23. T he Department is accorded b road discretion and

deference in the interpretation of the statutes which it

admi nisters , including Section 376.3071, Florida Statutes. See

Board of Podiatric Medicine v. Florida M edical Ass ociation , 779

So. 2d 658, 660 (Fla. 1st DCA 2001)(citing Public Employees

Relations Commission v. Dade County P olice Benevolent

Association , 467 S o. 2d 987 (Fla. 1985)). Also, t he

Department’s interpretation “ should be upheld when it is within

the range of permissible interpretations.” Id. ( citing Board of

T rustees of Internal Improvement Trust Fund v. Levy , 656 So. 2d

1359 (Fla. 1st DCA 1995)).

24. Nevertheless, “ judicial adherence to the agency’s view

is not demanded when it is contrary to the statute’s plain

meaning. ” Sullivan v. Department of Environmental Protection ,

890 So. 2d 417, 420 (Fla. 1st DCA 2004)(citations omitted).

25. Furtherm ore, t he guiding purpose in construing a

statute is to give effect to the L egislature’s intent. State v .

J.M. , 824 So. 2d 105, 109 (Fla. 2002). A determination of

legislative intent “is derived primarily from the language of

the statute.” State v. Bodde n , 877 So. 2d 680, 685 (Fla. 2004),

cert. denied , 125 S. Ct. 628 (2004). If the intent is unclear

from the plain language of the statute, only then are rules of

statutory construction and legislative history used to determine

legislative intent. BellSout h Telecommunications, Inc. v.

Meeks , 863 So. 2d 287, 289 (Fla. 2003).

26. If a statutory term is not defined, its plain and

ordinary meaning generally can be ascertained by reference to a

dictionary. Seagr a ve v. State , 802 So. 2d 281, 286 (Fla. 2001).

Whether p roposed r ule 62 - 770.220(3)(b) and (4) “enlarges,

modifies, or contravenes” Section 37 6 . 3 071, Florida Statutes .

2 7 . The Legislature created the “Inland Protection Trust

Fund” to “enable the department to respond without delay to

incidents of in land contamination related to the storage of

petroleum and petroleum products to protect the public health,

safety, and welfare and to minimize environmental damage.”

§ 376.3071 (2)(a) , Fla. Stat. Section 376.3071(5)(a), Florida

Statutes, require s the Depa rtment to “adopt rules to establish

priorities for state - conducted cleanup at petroleum

c ontamination sites base[d]” upon several non - exclusive factors.

2 8 . Section 376.3071(5)(b), Florida Statutes, provides :

( 5) Site selection and cleanup criteria.

* * *

(b) It is the intent of the Legislature to protect

the health of all people under actual circumstances of

exposure. The secretary shall establish criteria by

rule for the purpose of determining, on a site -

specific basis, the rehabilitation progra m tasks that

comprise a site rehabilitation program and the level

at which a rehabilitation program task and a site

rehabilitation program may be deemed completed. In

establishing the rule, the department shall

incorporate, to the maximum extent feasible, risk -

based corrective action [RBCA] principles to achieve

protection of human health and safety and the

environment in a cost - effective manner as provided in

this subsection. Criteria for determining what

constitutes a rehabilitation program task or

comp letion of site rehabilitation program tasks and

site rehabilitation p rograms shall be based upon the

factors set forth in paragraph (a) and the following

additional factors:

1. The current exposure and potential risk of

exposure to humans and the environ ment including

multiple pathways of exposure.

2. The appropriate point of compliance with cleanup

target levels for petroleum products' chemicals of

concern. The point of compliance shall be at the

source of the petroleum contamination. However, the

de partment is authorized to temporarily move the point

of compliance to the boundary of the property, or to

the edge of the plume when the plume is within the

property boundary, while cleanup, including cleanup

through natural attenuation processes in conjun ction

with appropriate monitoring, is proceeding. The

department also is authorized, pursuant to criteria

provided for in this paragraph, to temporarily extend

the point of compliance beyond the property boundary

with appropriate monitoring, if such exten sion is

needed to facilitate natural attenuation or to address

the current conditions of the plume, provided human

health, public safety, and the environment are

adequately protected. Temporary extension of the

point of compliance beyond the property boun dary, as

provided in this subparagraph, shall include notice to

local governments and owners of any property into

which the point of compliance is allowed to extend.

3. The appropriate site - specific cleanup goal. The

site - specific cleanup goal shall be t hat all petroleum

contamination sites ultimately achieve the applicable

cleanup target levels provided in this paragraph. . .

.

4. The appropriateness of using institutional or

engineering controls. Site rehabilitation programs

may include the use of institutional or engineering

controls to eliminate the potential exposure to

petroleum products' chemicals of concern to humans or

the environment . . . .

5. The additive effects of the petroleum products'

chemicals of concern. The synergistic effects of

petroleum products' chemicals of concern shall also be

considered when the scientific data becomes available.

6. Individual site characteristics which shall

include, but not be limited to, the current and

projected use of the affected groundwater in the

vicinity of the site, current and projected land uses

of the area affected by the contamination, the exposed

population, the degree and extent of contamination,

the rate of contaminant migration, the apparent or

potential rate of contaminant degradation t hrough

natural attenuation processes, the location of the

plume, and the potential for further migration in

relation to site property boundaries.

7. Applicable state water quality standards . . . .

8. Whether deviation from state water quality

standards or from established criteria is appropriate .

. . .

9. Appropriate cleanup target levels for soils . . . .

§ 376.3071(5), Fla. Stat. (emphasis added). See also Ch. 96 -

277, § 5, at 1131, 1134 - 1137, Laws of Fla. ( amending Section

376.3071, Florida Statut es , and add ing many of the factors set

forth in Section 376.3071(5)(b)1. - 9., including S ub paragraph

376.1071(5)(b)2. and the language emphasized above) .

2 9 . The L egislature’s grant of rulemaking authority to the

D epartment is both clear and unequivoca l. The Department has

the specific authority to adopt rules to implement the RBCA

process pursuant to Section 376.3071(5)(a) and (b), Florida

Statutes.

30 . Under Section 376.3071(5)(b ) 2., Flor i da Statutes, the

appropriate point of compliance with clea nup target levels for

petroleum products’ chemicals of concern is a factor the

Legislature directed the Department to consider in implementing

the RBCA process. Id. As a general rule, the statute provides

that the point of compliance is at the source of the petroleum

contamination. However, the Department is authorized to

temporarily move the point of compliance to the boundary of the

property, or to the edge of the plume when the plume is within

the property boundary, while cleanup, in conjunction with

appropriate monitoring, is proceeding. Id . See also Ch. 2005 -

50, §1, Laws. of Fla.(amending Section 376.301, Florida

Statu t es, to define ”t emporary point of c ompliance ” and “c leanup

target level ” for purposes of Sections 376.30 - 319, which

includes Sectio n 376.3071, Florida Statutes ) .

31 . As noted, in certain circumstances, the D epartment is

authorized to temporarily extend the point of compliance beyond

the property boundary. If this occurs, the temporary extension

of the point of compliance beyond t he property boundary, “shall

include notice to local governments and owners of any property

into which the point of compliance is allowed to extend.”

§ 376.3071(5)(b)2., Fla. Stat.

32 . If the point of compliance is temporarily extended,

p roposed rule 62 - 770.220(3)(b) requires “[c]onstructive notice

to residents [if different from the real property owner(s)

notified pursuant to paragraph 62 - 770.220(3)(a), F.A.C.] and

business tenants of any real property into which the point of

compliance is allowed to extend.” See Finding of Fact 1 .

Florida P etroleum contends that the proposed rule requirement

enlarge s , modif ies , or contravene s the statutory language quoted

in Finding of Fact 31 .

3 3. “When used in ss. 376.30 - 376.319, 376. 7 0, and 376.75,

unless the context clearly requires otherwise, the term. .

.‘[o]wner’ means any person owning a facility.” § 376.301(26),

Fla. Stat. A “facility” means, in part, “a nonresidential

location containing, or which contained, any underground

stationary tank or tanks whi ch contained hazardous substances or

pollutants. . . .” § 376.301(18), Fla. Stat. The statuto r y

definition of “owner” does not assist in defining the term

“owners” in Subsection 376.3071(5)(b)2 . because , in context,

notice is required to be given to a cl ass of persons owning

p roperty , which would not be expected to be the source of the

petroleum contamination at, for example, a facility.

34. On the other hand, “owner,” when used as a noun, means

“one who owns; the rightful proprietor; one who has the legal

and rightful title, whether he is in possession or not.”

Webster’s Ne w Twentieth Century Dictionary 1279 (2d ed. 1977).

See also Hialeah, Inc. v. Dade County , 490 So. 2d 998, 1000

(Fla. 3d DCA 1986)(citing to Florida Jurisprudence Second and

other authorities regarding the definition of “owner” ) ; Black’s

Law Dictionary 1105 (6th ed. 1990)(“Owner. The person in whom

is vested the ownership, dominion, or title of property ;

proprietor. He who has dominion of a thing, real or personal,

corporeal or in corporeal, which he has a right to enjoy and do

with as he pleases, even to spoil or destroy it, as far as the

law permits, unless he be prevented by some agreement or

covenant which restrain s his right. The ter m is, however, a

nomen generalissimum, and i ts meaning is to be gathered from the

connection in which it is used, and from the subject - matter to

which it is applied. The primary meaning of the word as applied

to land is one who owns the fee and who has the right to dispose

of the property, but the term also includes one having a

possessory right to land or the person occupying or cultivating

it. . . .”; and 42 Fla. Jur. 2d Property § 14 (2000) .

35. In context, it appears that the term “owners” means

the person having the legal and rightful titl e to the property

and does not include a resident or business tenant of the real

property. See also Samuel J. Morley, Florida’s New Petroleum

Contamination Reimbursement Program , 70 Fla.B.J. 24, 28 (Dec.

1996)(“Specifically, where RBCA allows temporary ex tension of

the point of compliance beyond the property boundary, notice to

local governments and the affected landowner is required.”) . ii

This conclusion is buttressed because the Legislature was well

aware of the language used.

36. For example, in 1 997, the Legislature created the

“Brownfields Redevelopment Act ,” including , as part of this act,

Section 376.81, Florida Statutes, which provides for b rownfield

site and brownfield areas contamination cleanup criteria. Ch.

97 - 277, § 5, Laws of Fla. ( codif ied in Section 376.81, Florida

Statutes ) . In particular, the Legislature required the

Secretary of the Department “to establish criteria by rule for

the purpose of determining, on a site - specific basis, the

rehabilitation program tasks that comprise a sit e rehabilitation

program and the level at which a rehabilitation program task and

a site rehabilitation program may be deemed completed . . . . ”

§ 376.81(1), Fla. Stat. “The criteria for determining what

constitutes a rehabilitation program task or compl etion of a

site rehabilitation program task or site rehabilitation program

must . . . [e]stablish the point of compliance at the source of

the contamination. However, the department is authorized to

temporarily move the point of compliance . . . . Temporar y

extension of the point of compliance beyond the property

boundary, as provided in this paragraph, must include actual

notice by the person responsible for brownfield site

rehabilitation to local governments and the owners of any

property into which the p oint of compliance is allowed to extend

and constructive notice to residents and business tenants of the

property into which the point of compliance is allowed to

extend . . . . ” § 376.81(1) (b), Fla. Stat. (emphasis added).

See also § 376.3078(4)(b), Fla. Stat. (similar notice

provision) iii ; and § 376.30701(2)(b), Fla. Stat. (same). iv

37. In each of the statutes recited in Finding of Fact 36 ,

t he Legislature expressly expanded the class of persons to whom

notice is required and expressly referred to a speci fic type of

notice to be given (actual or constructive) depending on the

class of persons design at ed to receive the notice. E ach of

these provisions was enacted after, and presumably with

knowledge of Subsection 376.3071(5)(b) 2 . (Pursuant to

Subs ection 3 76.3071(5)(b) 2. , the Legislature required that

notice be given to a specific class of persons. The Legislature

did not specify the type of notice. )

3 8 . “T]he L egislature must be assumed to know the meaning

of words and to have expressed its intent by the use of the

words found in the statute.” Thayer v. State , 335 So. 2d 815 ,

817 (Fla. 1976). Also, “where a statute enumerates the things

on which it is to operate, or forbids certain things, it is

ordinarily to be construed as excluding from its operat ion all

those not expressly mentioned.” Id.

39 . The Legislature provided that notice be given to

“local governments and owners of any property. . . .” v The

proposed rule expands the class of persons to whom notice must

be given when there is a tempora ry extension of the point of

compliance. The effect of the proposed rule is to “ enlarge ” the

notice provision in Subsection 376.3071(5) (b) 2., Florida

Statutes, and add a requirement not included nor intended by the

Legislature. Cf. Ortiz v. Department of Health, Board of

M edicine , 882 So. 2d 402 (Fla. 4th DCA 2004)(invalidating rule

that modified or enlarged terms of specific provisions of law

implemented); Department of Business Regulation, Division of

Alcoholic Beverages and Tobacco v. Salvation Limited , Inc. , 452

So. 2d 65 (Fla. 1st DCA 1984)(same); Department of Health and

Rehabilitative Services v. Petty - Eifert , 443 So. 2d 266 (Fla.

1 st DCA 1983)(same) ; Department of Health and Rehabilitative

Services v. McTigue , 387 So. 2d 454 (Fla. 1st DCA 1980)(sam e) .

4 0 . Based upon the foregoing, proposed rule 62 -

770.220(3)(b) is an invalid exercise of delegated legislative

authority. That portion of proposed rule 62 - 770.220(4) that

requires additional notice every five years to “residents. . .

and business tena nts” is invalid for the same reason. The

remainder of proposed rule 62 - 770.220(4), which requires an

additional status update notice every five years in proposed

rule 62 - 770.220(4) , is not invalid.

4 1 . The additional notice requirements for the status

updates give effect to the explicit notice requirements of

Subsection 376.3071(5)(b)2. The additional notice required does

not change the nature of the initial notice that must be given

when the temporary point of compliance is extended. The statute

con templates that rehabilitation is an on - going process. It is

not unreasonable to require additional notice of the status of

site rehabilitation be given to local governments and owners

(who may have changed in the interim). The additional

requirement is a lso not contrary to the plain meaning of

S ubsection 376.3071(5)(b)2 . vi

CONCLUSION

Based upon the foregoing , Florida Petroleum has standing in

this case; proposed rule 62 - 770.220(3) is an invalid exercise of

delegated legislative authority; and proposed rul e 62 - 770.220(4)

is not an invalid exercise of delegated legislative authority,

except insofar as notice must be given every five years to

persons other than “ local governments and owners of any property

into which the point of compliance is allowed to exte nd , ” as

provided in Section 376.3071(5)(b)2., Florida Statutes.

DONE AND ORDERED this 16th day of June , 2005 , in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrati ve 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 16th day of June , 2005 .

E NDNOTES

i Citations are to the 2004 version of the Florida Statutes.

ii / The staff analysis, cited in footnote 5 of the article,

pertaining to Chapter 96 - 277, Laws of Florida, i.e. , HOUSE OF

REPRESENTATIVES AS FURTHER REVISED BY THE COMMITTEE ON NAT URAL

RESOURCES FINAL BILL ANALYSIS & ECONOMIC IMPACT STATEMENT (M ay

6, 1996) ( storage name h1127s1z.nr. , Florida State Archives,

Department of State , Series 19, Carton 2734) , explains the

“ effect of proposed changes ” and, in part, stated: “The

department is directed to incorporate Risk - Based Corrective

Action (RBCA) principles into its cleanup criteria rule to

achieve protection of human health and safety and the

environment in a cost - effective manner. If through the use of

RBCA the point of compliance is allowed to temporarily extend

beyond the property boundary of the source of contamination,

notice to local governments and the affected adjacent landowners

is required .” Id. at 4 (emphasis added). Referring to sect ion

5 of Chapter 96 - 277, the staff analysis also stated in part:

“ [p] rovides notice requirements for certain circumstances.” Id.

at 7. Section 5 of Chapter 96 - 277 included the amendments to

Subsection 376.3071(5)(b)2. See also D’Alto v. Department of

En vironmental Protection , 860 So. 2d 1003, 1004 (Fla. 1st DCA

2003)(citing a staff analysis for CS/CS for SB 648 (1996), a

companion bill for what ultimately was enacted as Chapter 96 -

277).

iii / See Ch. 98 - 189, § 10, Laws of Fla.

iv / See Ch. 2003 - 173, § 1, Laws of Fla. See also Kerper v.

Department of Environmental Protection , 894 So. 2d 1006, 1010

(Fla. 5th DCA 2005)(citing a legislative staff analysis for HB

1123 creating Section 376.30701).

v / The Department’s proposed use of “constructive” notice is n ot

necessarily fatal because the Legislature did not expressly

designate the type of notice to be given as it did in the other

statutes referenced herein. It is only the proposed attempt to

extend the class of persons to receive notice that is

problematic .

vi / But see § 376.30701(2)(b), Fla. Stat . In Section

376.30701(2)(b), Florida Statutes, the Legislature created the

notice provision and provided in part: “Additional notice

concerning the status of natural attenuation processes shall be

similarly prov ided to persons receiving notice to this paragraph

every 5 years.” This language was enacted in 2003. Ch. 2003 -

173, § 1, Laws of Fla. See Endnote 4 and related text, supra .

COPIES FURNISHED :

R obert D. Fingar, Esquire

Frank & Gramling, P.A.

3323 - C T homasville Road

Tallahassee, Florida 32308

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

Kathy C. Carter, A gency Clerk

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Summary Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.