11-003627RP Combs Oil Company vs. Department Of Financial Services, Division Of State Fire Marshal Status: Closed DOAH Final Order on Friday, March 9, 2012.

Summary: Petitioner failed to satisfy its burden of establishing a factual basis for its objections to proposed FAC Rule 69A-6.005(2); and, therefore, its challenge to the proposed rule is denied.

Case No. 11-3627RP

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMBS OIL COMPANY, FINAL ORDER )

)

Petitioner, )

vs. )

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF STATE )

FIRE MARSHAL, )

)

Respondent. )

)

)

Pursuant to notice, on January 6, 2012, a formal hearing in

this cause was held in Tallahassee, Florida, before the Division

of Administrative Hearings by its designated Administrative Law

Judge Linzie F. Bogan.

APPEARANCES

For Petitioner: Robert D. Fingar, Esquire

Guilday, Tucker, Schwartz

and Simpson, P.A.

1983 Centre Pointe Boulevard, Suite 200

Tallahassee, Florida 32308-7823

For Respondent: Michael H. Davidson, Esquire

Linje Rivers, Esquire

Department of Financial Services

612 Larson Building 200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether a proposed amendment to Florida Administrative Code

Rule 69A-6.005(2) constitutes an invalid exercise of delegated

legislative authority in violation of section 120.52(8)(e),

Florida Statutes (2011). 1/

PRELIMINARY STATEMENT

Petitioner, Combs Oil Company (Combs Oil/Petitioner),

alleges that a proposed amendment to rule 69A-6.005(2) (Proposed

Rule), to the extent that it adopts National Fire Protection

Association (NFPA) 30, section 22.11.4.1 (2008), is arbitrary or

capricious and is, therefore, an invalid exercise of delegated

legislative authority within the meaning of section

120.52(8)(e). Combs Oil sets forth two theories for why the

proposed rule is arbitrary or capricious. First, Combs Oil

contends that the Proposed Rule, "to the extent it adopts

NFPA 30, section 22.11.4.1 (2008), would not allow [the company]

to install tanks of greater capacity than 12,000 gallons without

spill control." As set forth in the Amended Petition for

Determination of Invalidity of Proposed Rule 69A-60.005(2)

(Petition), the 12,000-gallon limitation found in NFPA 30 is

allegedly arbitrary or capricious, because the stated tank

capacity was chosen by the NFPA "to correlate with maximum

capacities allowed by NFPA 30A, Code for Motor Fuel Dispensing

Facilities and Repair Garages." According to the Petition,

NFPA 30A applies to aboveground tanks at service stations, and

since Petitioner's facility is not a service station, it is

either arbitrary or capricious, or both, for the NFPA 30

standard to use NFPA 30A as a basis for the 12,000-gallon

limitation.

Second, Combs Oil alleges that the Proposed Rule is

arbitrary or capricious because it is in direct conflict with

Florida Administrative Code Rule 62-762.501(2)(c)1.b. Rule

62-762.501(2)(c)1.b., which was promulgated by the Department of

Environmental Protection (DEP), places no capacity limitation on

aboveground storage tanks and allows for the installation of

tanks, such as those at issue in the instant proceeding, if the

tanks are approved in accordance with rule 62-762.851(2). There

is no dispute in the instant proceeding that DEP approved

Petitioner's three tanks for installation.

During the final hearing held on January 6, 2012, Combs Oil

offered the testimony of Dennis Combs and Charles Frank. The

Department offered the testimony of one witness, Charles Frank.

Combs Oil offered into evidence its Exhibits 1, 2A through 2M,

and 3 through 7. The Department offered into evidence its

Exhibits 1 through 5. On February 23, 2012, Combs Oil submitted

a Proposed Final Order, and on February 24, 2012, the Department

submitted its Proposed Final Order. The proposed final orders

submitted by the parties have been considered in the preparation

of this Final Order.

FINDINGS OF FACT

1. Combs Oil is engaged in the distribution and storage of

petroleum products in southwest Florida. The distribution and

storage facility (facility) operated by Combs Oil, which is

located at 76 Industrial Boulevard in Collier County, Florida,

contains both underground and aboveground petroleum storage

tanks and is considered a bulk petroleum storage facility. As a

bulk petroleum storage facility, the operation does not directly

dispense fuel to cars, boats, planes, and the like.

2. Through its operations, Combs Oil distributes petroleum

products to retail locations and to entities, such as

governmental agencies, golf courses, and the commercial fishing,

cattle, and citrus industries.

3. Several years ago, Combs Oil purchased three 29,000-

gallon aboveground, double-walled storage tanks and currently

desires to utilize the tanks at its facility to store Class I

petroleum products. These tanks are considered secondary

containment-type tanks. Regulatory officials in Collier County

have advised Combs Oil that the company will not be able to

store petroleum in the 29,000 gallon aboveground tanks because

to do so would be in violation of the 12,000-gallon capacity

limit established by NFPA 30.

4. NFPA 30, section 22.11.4.1 (2008), is included within

NFPA Standard 1, as referenced in section 633.0215(2), Florida

Statutes. NFPA 30, section 22.11.4.1 (2008), provides that

where a secondary containment-type tank is used to provide spill

control, the capacity of the tank shall not exceed 12,000

gallons. The 2008 version of NFPA 30 made no change to the

existing prohibition against the use of secondary containment-

type, aboveground tanks in excess of 12,000 gallons.

Substantively, NFPA 30, section 22.11.4.1 (2008), is the same as

the 2000 and 2003 versions; however, the 2008 version, according

to Combs Oil, includes commentary from NFPA's technical

committee that was not in previous versions of the rule.

5. The commentary from NFPA's technical committee reads,

in material part, as follows,

Subsection 22.11.4 was initially added, in

1993, as an exception to the spill control

provisions of NFPA 30. The exception

addressed the growing use of factory-built

aboveground tanks that incorporated some

form of secondary containment. The

secondary containment is primarily an

environmental protection measure and usually

takes the form of a double shell with an

annular (interstitial) space or an integral

spill pan. In developing this exception,

the NFPA 30 Technical Committee on Tank

Storage and Piping Systems considered many

issues and determined that a double shell

alone would not provide the level of spill

control originally intended.

First, the technical committee recognized

that secondary containment and spill control

are not synonymous. Secondary containment

is a term that was originally applied to

double shell underground tanks; such tanks

have been in use for many years and are now

the choice for underground installations, as

a result of stricter environmental

regulations. The outer shell contains any

release of product if the inner primary tank

develops a leak. The concept has now been

applied to aboveground tanks. However,

almost all product releases from aboveground

tanks result from overfilling or a break in

a pipe connected to the tank. Rarely does

an aboveground tank release product because

of a leak in its shell. In a sense,

secondary containment, when applied to an

aboveground tank, is a solution in search of

a problem.

Second, the technical committee was not

convinced that the bare steel outer shell

would not fail prematurely from an exposure

fire. Their concern arose from the fact

that the contained liquid is not in contact

with the outer shell and, therefore, cannot

absorb the thermal energy impinging on it.

Third, for smaller tanks, the outer shell

offered virtually no impact protection.

Piercing the outer shell would likely result

in piercing the primary tank as well. Even

if the primary tank were not damaged,

secondary containment would have been

compromised.

Nevertheless, the technical committee

determined that an aboveground secondary

containment-type tank could be installed

without meeting the original spill control

provisions of NFPA 30, if the protective

features enumerated here are provided. The

maximum capacity of 12,000 gal for Class 1

liquids and 20,000 gal for Class II and III

liquids was chosen to correlate with the

maximum capacities allowed by NFPA 30A, Code

for Motor Fuel Dispensing Facilities and

Repair Garages, for aboveground tanks at

service stations . Piping connections below

the liquid level are not allowed and an

anti-siphon device is required to prevent

release of liquid should there be a break in

the pipeline.

The emphasized portion of the quoted material provides the basis

for Petitioner's assertion that "NFPA has done no study to

warrant the application of this standard to terminal or bulk

facilities."

6. Combs Oil did not offer any testimony from any person

affiliated with NFPA's technical committee. Combs Oil did not

call any witness who has served on NFPA's technical committee.

Combs Oil did not offer any documentary evidence showing the

workings of NFPA's technical committee as the committee

contemplated the inclusion of the newly inserted notes into the

technical committee's commentary.

7. Per the requirements of section 633.0215, the

Department, as part of its three-year update to the Florida Fire

Prevention Code, seeks to amend rule 69A-6.005(2) to reflect the

adoption of the 2008 version of NFPA 30. It is undisputed that

NFPA 30 governs the facility operated by Combs Oil. It is also

undisputed that NFPA 30A, when considered in isolation, does not

apply to the facility at issue.

8. Mr. Charles Frank works as an operations review

specialist for the State Fire Marshall's Office, Bureau of Fire

Prevention. In this capacity, Mr. Frank offers "informal

interpretation for various agencies that are looking for code

interpretations." Mr. Frank does not serve in a policy-making

position with the State Fire Marshall's Office.

9. From 2005 until 2009, Mr. Frank was a member of the

NFPA. Mr. Frank is familiar with how NFPA develops and compiles

its fire code, but he has personally never participated in

NFPA's code development process. Mr. Frank is neither

qualified, nor authorized to speak on behalf of NFPA with

respect to technical matters related to NFPA's rules.

10. Prior to filing the instant challenge, Combs Oil,

pursuant to section 120.542, filed with the Department on or

about August 3, 2007, a "Petition for Variance From, or Waiver

of, Rule 69A-3[.]012(1), Florida Administrative Code [Waiver]."

Petitioner's Waiver application requested that the Department

waive the requirements of the applicable rule and allow

Petitioner to install the three 29,000-gallon tanks. On or

about November 2, 2007, the Department denied Petitioner's

Waiver request. In response to the denial, Petitioner filed a

Petition for Formal Administrative Hearing, which was assigned

DOAH Case No. 08-1714. On July 8, 2008, pursuant to a Joint

Motion to Dismiss, the Division of Administrative Hearings

issued an Order closing its file and relinquishing jurisdiction

to the Department.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

Stat.

12. Section 120.56(1)(a) provides that "[a]ny person

substantially affected by a rule or a proposed rule may seek an

administrative determination of the invalidity of the rule on

the ground that the rule is an invalid exercise of delegated

legislative authority." Combs Oil is substantially affected by

the proposed rule and, therefore, has standing.

13. Under section 120.56(2)(c), a "proposed rule is not

presumed to be valid or invalid." In a proceeding challenging a

proposed rule, "[t]he petitioner has the burden of going forward

[with] [t]he agency then [having] the burden to prove by a

preponderance of the evidence that the proposed rule is not an

invalid exercise of delegated legislative authority as to the

objections raised." § 120.56(2)(a).

14. A petitioner satisfies its burden of going forward by

"establishing a factual basis for the objections to the

[proposed] rule." St. Johns River Water Mgmt. Dist. v.

Consolidated-Tomoka Land Co. , 717 So. 2d 72, 77 (Fla. 1st DCA

1998), rev. den. , 727 So. 2d 904 (Fla. 1999)(superseded on other

grounds by Chap. 99-379, §§ 2 and 3, Laws of Fla.). Petitioner

is required to offer more than mere conclusions in order to

sustain its initial burden of going forward. It is not enough

to simply allege that a rule is arbitrary or capricious without

providing a factual basis to support the allegation. Petitioner

can satisfy its initial burden of going forward by offering

expert testimony, documentary evidence, or other competent

evidence. In the absence of a factual basis for a challenge to

a proposed rule, a challenger's objection amounts to nothing

more than conjecture and supposition.

15. Section 120.52(8) provides, in part, as follows:

'Invalid exercise of delegated legislative

authority' means action that 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 any one of the

following applies:

* * *

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational[.]

16. Section 633.0215 provides, in part, as follows:

(1) The State Fire Marshal shall adopt, by

rule pursuant to ss. 120.536(1) and 120.54,

the Florida Fire Prevention Code which shall

contain or incorporate by reference all

firesafety laws and rules that pertain to

and govern the design, construction,

erection, alteration, modification, repair,

and demolition of public and private

buildings, structures, and facilities and

the enforcement of such firesafety laws and

rules. The State Fire Marshal shall adopt a

new edition of the Florida Fire Prevention

Code every third year.

(2) The State Fire Marshal shall adopt the

National Fire Protection Association's

Standard 1, Fire Prevention Code but shall

not adopt a building, mechanical, or

plumbing code. The State Fire Marshal shall

adopt the Life Safety Code, Pamphlet 101,

current editions, by reference. The State

Fire Marshal may modify the selected codes

and standards as needed to accommodate the

specific needs of the state . Standards or

criteria in the selected codes shall be

similarly incorporated by reference. The

State Fire Marshal shall incorporate within

sections of the Florida Fire Prevention Code

provisions that address uniform firesafety

standards as established in s. 633.022. The

State Fire Marshal shall incorporate within

sections of the Florida Fire Prevention Code

provisions addressing regional and local

concerns and variations.

* * *

(9) The State Fire Marshal shall make rules

that implement this section and ss. 633.01

and 633.025 for the purpose of accomplishing

the objectives set forth in those sections.

(emphasis added.)

17. Paragraphs 8 and 9 of the Petition provide that

NFPA 30A, Section 4.3.2.3, limits the

capacity of any aboveground tank, i.e.,

single-or double-walled, to 12,000 gallons

at the motor fuel dispensing facilities and

other facilities described in NFPA 30A,

Section 1.1.1 (2008). The capacity limit

'was deliberately chosen on the basis of

typical underground systems in use . . . .'

This limitation was not meant to apply to

bulk plants or terminals.

Based on the foregoing, it is clear that the

12,000 gallon limit (without spill control)

on any aboveground tanks was chosen to

reflect the size of tanks at typical motor

fuel dispensing facilities. Applying the

capacity limitation to other facilities,

including bulk plants, is arbitrary and

capricious, as NFPA has done no study to

warrant the application of this standard to

terminal or bulk facilities. In contrast,

DEP has determined that any double-walled

tank does not require separate spill

control.

18. The first predicate upon which Petitioner's instant

challenge to the Proposed Rule rests is found in a note from the

NFPA technical committee. According to Combs Oil, NFPA 30,

section 22.11.4 (2008), provides, in part, that "[t]he maximum

capacity of 12,000 gal[lons] for Class I liquids . . . was

chosen to correlate with the maximum capacities allowed by

NPFA 30A, Code for Motor Fuel Dispensing Facilities and Repair

Garages, for aboveground tanks at service stations."

19. A committee note for a rule that references a standard

contained in a second rule is not presumptively arbitrary or

capricious simply because the second rule, when viewed in

isolation, pertains to subject matter not covered by the first

rule.

20. As previously noted, Combs Oil argues that "[a]pplying

the capacity limitation to other facilities, including bulk

plants, is arbitrary and capricious, as NFPA has done no study

to warrant the application of this standard to terminal or bulk

facilities." Although Combs Oil argues that "NFPA had done no

study," it has failed to produce any evidence that provides a

factual basis for this assertion.

21. On cross-examination by Petitioner, Charles Frank was

asked to explain the basis for NFPA placing the 12,000 gallon

limitation on aboveground petroleum storage tanks. In response

to Petitioner's inquiry, Mr. Frank advised that he could not

answer the question asked of him, because he did not have

authority to speak on behalf of NFPA. Petitioner then asked

Mr. Frank the following,

Q: Do you know the scientific basis for the 12,000

gallon capacity limit?

A: No.

Q: Do you know of any data that support the 12,000

gallon capacity limit?

A: No.

Q: Are you aware of any scientific studies that

demonstrated that the capacity limit should be

limited to 12,000 gallons?

A: No, sir.

(Hearing transcript, pgs. 160, 161)

22. Combs Oil failed to establish that Mr. Frank, in his

capacity as an operations review specialist for the State Fire

Marshall's Office, Bureau of Fire Prevention, is qualified to

render an opinion or testify factually about what NFPA did or

did not do as it relates to correlating the standards of NFPA 30

to those contained in NFPA 30A. Petitioner offered no other

evidence regarding this issue and, accordingly, has failed to

prove a factual basis for its contention that the Proposed Rule

is arbitrary or capricious because "NFPA has done no study to

warrant the application of this standard to terminal or bulk

facilities." 2/

23. Combs Oil also challenges the Proposed Rule as being

arbitrary or capricious on the grounds that the Proposed Rule

prohibits the installation of aboveground petroleum tanks

exceeding 12,000 gallons, whereas Florida DEP rule

62-762.501(2)(c)1.b. (DEP Rule) allows for the installation of

such tanks. Legal argument notwithstanding, Petitioner must,

nevertheless, meet its initial burden of going forward as to

this issue by offering a factual basis to support its assertion.

24. The DEP Rule was promulgated pursuant to section

376.303, Florida Statutes (2003). Chapter 376, Laws of Florida,

deals, in general, with pollutant discharge prevention and

removal. The Legislature, in enacting sections 376.30 through

376.317, Florida Statutes (2003), expressed its intent to confer

upon DEP certain police powers related to protecting the State's

surface and ground waters.

25. By comparison, section 633.01(2) provides, in part,

that "it is the intent of the Legislature that the State Fire

Marshal shall have the responsibility to minimize the loss of

life and property in this state due to fire." DEP's legislative

charge of protecting the State's surface and ground waters is

very different from the State Fire Marshall's charge of

minimizing the loss of life and property due to fire. Given

that the State Fire Marshall and DEP have very different

legislative missions, the undersigned will not infer, as

suggested by Petitioner, that the Proposed Rule is arbitrary or

capricious simply because it prohibits an activity that is

otherwise allowed by DEP's Rule. To embrace such an inference,

when the instant record is devoid of a factual basis for doing

so, would be unreasonable and contrary to the language of

section 120.56(2)(c), which expressly provides that a "proposed

rule is not presumed to be valid or invalid." As for this

issue, like the first, Combs Oil has also failed to establish a

factual basis for the objection to the Proposed Rule. 3/

26. Because Combs Oil has failed to meet its initial

burden of establishing a factual basis for its objections to the

Proposed Rule, the Department is relieved of its burden of

proving that the Proposed Rule is not an invalid exercise of

delegated legislative authority. Id.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is, therefore,

ORDERED that the Amended Petition for Determination of

Invalidity of Proposed Rule 69A-60.005(2) is denied.

DONE AND ORDERED this 9th day of March, 2012, in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March, 2012.

ENDNOTES

1/ All future references to Florida Statutes will be to 2011,

unless otherwise indicated.

2/ In considering the entirety of the comments from the

technical committee as noted in Findings of Fact, paragraph 5,

it plainly appears that the committee was quite deliberate and

thorough in the process utilized and rationale articulated when

correlating the 12,000 gallon limitation in NFPA 30 to that of

NFPA 30A.

3/ The absence of a factual basis for Petitioner's challenge is

further illustrated by the following colloquy:

Mr. Fingar: Your Honor, I've got the burden

of going forward trying to demonstrate that

the rule is arbitrary or capricious. My

intent would be to move to Section 4.3.2.3.,

because that's the rule that demonstrates

arbitrary and capricious.

I don't know, other than through argument,

of any artful way to get the rule--well, the

rule is in the record. I don't know of any

artful way to highlight it. So we can ask

Mr. Combs about it or we can deal with it in

argument, but I think I've got to highlight

the portion of the rule that's--that I'm

alleging is invalid.

Mr. Davidson: Your Honor, that's what

closing argument and PRO's are for.

COPIES FURNISHED

:

Ken Plante, Coordinator

Joint Administrative

Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399-1400

[e-mail]

Liz Cloud, Program Administration

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

[e-mail]

P.K. Jameson, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

[e-mail]

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Robert D. Fingar, Esquire

Guilday, Tucker, Schwartz

and Simpson, P.A.

1983 Centre Pointe Boulevard, Suite 200

Tallahassee, Florida 32308-7823

Michael H. Davidson, Esquire

Linje Rivers, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this 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 one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second 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 Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.