CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1993 WL 390413
...nd associated equipment used for fueling vessels. On March 6, 1992, DNR published notice in the Florida Administrative Weekly of, inter alia, proposed rules 16N-16.032, 16.033, and 16.034. In essence, these rules, which purport to implement sections
376.065 and
376.07, Florida Statutes (1991), would require a "terminal facility" [1] to: (1) obtain a spill prevention and response certificate from DNR; (2) prepare a spill contingency/prevention plan for reporting pollutant discharges (e.g., fuel s...
...t statement the economic impact of the proposed rules on small businesses. After a hearing, the hearing officer issued an order which, among other things, found that proposed rules 16N-16.032, 16.033, and 16.034 are facially consistent with sections
376.065 and
376.07, and, therefore, are not an invalid exercise of delegated legislative authority....
...hearing officer nevertheless found the error to be harmless because those costs imposed on small businesses by the proposed rules were not shown to be unreasonable. LAW AND ANALYSIS As noted, the proposed rules at issue purport to implement sections
376.065 and
376.07, which are part of the Pollutant Spill Prevention and Control Act (Act)....
...al of pollutants; (3) development and implementation of criteria and plans to meet a variety of pollution occurrences; and (4) such other rules as may be reasonably necessary to carry out the intent of the Act. Section
376.07(2)(a), (c), (d), & (i). Section
376.065 provides in subsection (1) that every owner or operator of a terminal facility must obtain a spill prevention and response certificate from DNR. Section
376.065(2) requires each applicant for such a certificate to provide DNR with a list of information, including: (1) the length of the largest vessel docking at or providing service from the terminal facility; (2) all prevention, containment, and removal equipment; and (3) terms of any agreement of any discharge cleanup organization to which the terminal facility may belong. Then, section
376.065(3) states in relevant part: No person shall operate or cause to be operated a terminal facility without access to minimum containment equipment measuring five times the length of the largest vessel docking at or the largest vessel providing service from the terminal facility, whichever is larger....
...Within a reasonable time period, additional cleanup equipment shall be available ... to reasonably clean up 10,000 gallons of pollutants, unless the terminal facility does not store or service vessels having the capacity to carry that quantity as fuel or cargo. (Emphasis added). Finally, according to section 376.065(4), once DNR is satisfied that a terminal facility's containment and cleanup capability complies with section 376.065, DNR shall issue to that facility a spill prevention and response certificate. Proposed rule 16.032, entitled "Terminal Facility Spill Prevention and Response Certificates; Inspections," permits DNR to: (1) gather the information listed in section 376.065; (2) verify that information; (3) inspect terminal facilities to verify access to the containment equipment required by that section; and (4) review and verify the contents of the terminal facility's contingency plan. This rule also defines what section 376.065(3) refers to as "a reasonable time" within which additional cleanup equipment shall be made available....
...Proposed rule 16.033 requires an owner or operator of a terminal facility to have a spill contingency plan detailing the methods, means and equipment to be used in the removal of a pollutant in the event of a discharge. Seizing upon the language of section 376.065(3) emphasized above, subsections (1)(b) and (c) of the rule create a distinction between the contingency plan for terminal facilities "with a pollutant storage capacity of 10,000 gallons or greater," and those "with a pollutant storag...
...iding for a secondary cleanup response using "additional cleanup equipment." Finally, proposed rule 16.034 simply details the "additional cleanup equipment" DNR determined was necessary to clean up a 10,000 gallon pollutant discharge, as required by section 376.065(3), and notes that a waiver or substitution of equipment may be requested....
...10,000 GALLON STANDARD Initially, Stuart Yacht Club contends the proposed rules described above are arbitrary and capricious because DNR gave no basis for relying on 10,000 gallons as the "cut-off" provided in 16.033 and 16.034. However, because the 10,000 gallon figure derives from the express language of section 376.065(3), its use in these rules is completely rational....
...*1267 PROPOSED RULES 16.032 & 16.034 After closely reviewing proposed rules 16.032 and 16.034, we find there is nothing in those rules that is inconsistent with either the rulemaking authority granted DNR by section
376.07 or the specific law these rules purport to implement (section
376.065). Reduced to its essence, 16.032 involves nothing more than information gathering, an activity well within DNR's broad powers. In addition, with regard to 16.034, section
376.065(3) states that "additional cleanup equipment" is to be made available to reasonably clean up 10,000 gallons of pollutants, and all 16.034 does is list that equipment....
...[3] RULE 16.033 The final order of the hearing officer sets the stage for assessing the validity of proposed rule 16.033: 18. The gravamen of the dispute between the parties concerning the propriety of the proposed rule is a disagreement as to the interpretation to be accorded the provisions of section 376.065(3) which require a terminal facility to have "additional cleanup equipment" under the following circumstances: ......
...store [vessels] or service vessels having the capacity to carry that quantity [10,000 gallons of pollutants] as fuel or cargo," irrespective of the capacity of the facility. So read, proposed rule 16N-16.033 conflicts with the exemption provided by section 376.065(3)....
...Under the Act, no one is permitted to operate a terminal facility without first obtaining from DNR two separate certificates a registration certificate as required by section 376.06, and the spill prevention and response certificate required by section 376.065....
...Hence, the larger the fuel storage capacity at the facility, the greater the amount of equipment that must be available. Since the registration requirements are geared toward the storage capacity of the terminal facility, it follows that the procedures established by section 376.065 for obtaining a spill prevention and response certificate are directed at vessel capacity....
...mpel the facility to obtain additional cleanup equipment simply because its storage capacity is greater than 10,000 gallons. [4] Based on the foregoing, we reject DNR's interpretation of the exemption from the additional cleanup requirement found in section 376.065(3) as being clearly erroneous....
...[2] The hearing officer, however, did strike down proposed rules 16.009(3) and 16.028 on this basis. That ruling has not been challenged in this appeal. [3] As a corollary argument, Stuart Yacht Club urges that these proposed rules improperly enlarge DNR's delegated authority because the rules apply the requirements of section
376.065 to Stuart Yacht Club's facility when the legislature did not intend that result. In other words, and more specifically, Stuart Yacht Club maintains it is a "marine fueling facility" as defined in section
376.301, but not a "terminal facility"; and since the legislature only intended section
376.065 cover the latter, that section cannot be applied to Stuart Yacht Club (one of the former) via these proposed rules....
