STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAUL CORBIEY and BARBARA )
CORBIEY, )
)
Petitioners, )
)
vs. )
) ACTION INSTANT CONCRETE, LLC ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
Case No. 05-2891
)
RECOMMENDED ORDER
On February 24, 2006, a final administrative hearing was held in this case in Ocala, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners: Robert W. Bauer, Esquire
Clayton-Johnston, P. A.
18 Northwest 33rd Court Gainesville, Florida 32607-2553
For Respondent Action Instant Concrete, LLC:
Robert E. Seymour, Esquire Savage Krim Law Firm
121 Northwest Third Street Ocala, Florida 34475-6640
For Respondent Department of Environmental Protection:
Stan M. Warden, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
PRELIMINARY STATEMENT
On April 29, 2005, AIC published notice in the Ocala Star- Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 16, 2005, Petitioners, Paul and Barbara Corbiey, filed a Petition for Administrative Hearing (Petition) opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation.2 On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and visible emissions (VE) observation report to DEP.
DEP referred the matter to DOAH on August 12, 2005, and it was scheduled for a final hearing in Ocala on October 13, 2005. When the Corbieys failed to file a witness list, as required by the Order of Pre-Hearing Instructions entered on September 7,
2005, the parties were ordered to whow cause why the final hearing should not be canceled, the case dismissed, and the DOAH file closed. In response, counsel appeared for the Corbieys and requested a continuance, which was not opposed and was granted, and the final hearing was re-scheduled for January 17, 2006.
However, to help resolve discovery disputes and allow time for discovery, the final hearing was again continued, with the agreement of the parties, to February 24, 2006.
On February 8 and 9, 2006, DEP filed a Motion to Relinquish Jurisdiction and a Motion to Strike or, in the Alternative, Motion in Limine, which were heard by telephone on February 14, 2006. On February 16, 2006, an Order Denying Motion to Relinquish Jurisdiction and Granting Motion to Strike was entered, which struck from the Petition issues relating to zoning, the location and hours of operation of AIC's facility, local construction permitting and licensing, roadway debris, diesel truck emissions, noise, and bright lights on trucks and on a billboard on the property.
At the final hearing, Joint Exhibits 1 through 12 were admitted in evidence. AIC called three witnesses: John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality; Louis Fernandez, Environmental Specialist III in the area of air general permits; and AIC's owner, Russell Barlow.
DEP called Adam Richardson, whose work for DEP includes air
general permit compliance enforcement. Petitioners called four lay witnesses to AIC's operation: Barbara Barnes; Peter Kross; Patricia Gabriel; and Paul Corbiey. Petitioners also offered Petitioners' Exhibits 1 through 6 in evidence, 1 through 4 of which were admitted without objection. (Petitioners' Exhibit 4 consists of designated portions3 of the transcript of the deposition of Robert Soich, a DEP Engineer II and an air compliance inspector.)
AIC and DEP objected to Petitioners' Exhibit 5, which consists of designated portions4 of the transcript of the deposition of William A. Proses, an employee of Koogler & Associates, who signed the VE Observations Report (Joint Exhibit 9), on the ground that the witness should have been subpoenaed to testify.5 Section 120.57(1)(c), Florida Statutes (2005)6, provides: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." As to the exhibit's admissibility over objection in civil actions, Florida Rule of Civil Procedure 1.330(a) provides that, under certain circumstances, a deposition may be used "so far as admissible under the rules of evidence applied as though the witness were then present and testifying . . . ."7 As to the circumstance applicable in this case, while "it does not appear that the
absence of the witness was procured" by Petitioners, the following mandatory finding could not be made: "that the witness is at a greater distance than 100 miles from the place of trial or hearing . . . ." (Emphasis added.) Fla. R. Civ. Pro. 1.330(a)(3)(B).8 As to the possibility that the deposition would be admissible in civil actions apart from Florida Rule of Civil Procedure 1.330(a)(3)(B), the hearsay exceptions found in Sections 90.803(22)9 and 90.804(2)(a)10, Florida Statutes, the only exceptions arguably applicable, both require that, during the deposition, the party against whom the testimony is offered at hearing, must have "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." (Emphasis added.) This predicate was not established in the case of this discovery deposition.11 See
Friedman v. Friedman, 764 So. 2d 754 (Fla. 2d DCA 2000). For these reasons, while Petitioners' Exhibit 5 is admitted in evidence for the purpose of supplementing or explaining other evidence, it is not sufficient in itself to support a finding.
AIC and DEP also objected to Petitioners' Exhibit 6, a videotape of AIC's operations taken in October and
November 200512, on the ground that it cannot form the basis of the required VE observations and is irrelevant. While the videotape cannot form the basis of those observations, the objections were overruled and the exhibit admitted in evidence
for the purpose of completing the testimony of Mr. Corbiey, who referred to it. In addition, the videotape may be relevant to issues under Rule 62-296.414(2).
After presentation of evidence, no party ordered a transcript of the final hearing, and the parties requested until March 16, 2006, to file proposed recommended orders (PROs). The PROs filed by Petitioners and jointly by DEP and AIC have been considered.
The joint PRO filed by DEP and AIC contained a request to retain jurisdiction to enter an award of costs and attorney fees pursuant to Section 57.105(1) and (5), Florida Statutes.
FINDINGS OF FACT
Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa.
Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse.
AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak.
During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and,
at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete.
When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust.
When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid.
It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations.
As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner
that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP.
At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA
Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates.
In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing.
Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit.
Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified
technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo.
Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra.
Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules.
Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice.
In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
CONCLUSIONS OF LAW
With certain provisos, Rule 62-210.300(4)(a)2. authorizes the use of an Air General Permit for: "Concrete batching plants as subject to the requirements of Rule 62- 296.414, F.A.C. . . . ." Rule 62-296.414 sets out requirements that "apply to new and existing emissions units producing concrete and concrete products by batching or mixing cement and other materials. This rule also applies to facilities processing cement and other materials for the purposes of producing concrete." In accordance with the reasonable interpretation of these rules by DEP and AIC's expert, AIC's operation is subject to Rule 62-296.414 and may use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2.
The provisos for use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. include:
The owner or operator timely submits a completed Concrete Batching Plant Air General Permit Notification Form (DEP Form No. 62-210.920(7)) to the Department. The owner or operator of any proposed new
concrete batching plant shall publish a notice of intent to use the general permit in a newspaper of general circulation in the area affected by the proposed project no more than 21 days prior to submitting a completed notification form to the Department, shall submit a completed notification form with proof of notice publication to the Department at least 30 days prior to beginning construction, and shall demonstrate compliance no more than 30 days after beginning operation. . . . .
Under Rule 62-296.414, the demonstration of compliance includes:
(1) Stack Emissions. Emissions from silos, weigh hoppers (batchers), and other enclosed storage and conveying equipment shall be controlled to the extent necessary to limit visible emissions to 5 percent opacity.
* * *
Test Methods and Procedures. All emissions tests performed pursuant to the requirements of this rule shall comply with the following requirements.
The test method for visible emissions shall be DEP Method 9, incorporated in Chapter 62-297, F.A.C.
Test procedures shall meet all applicable requirements of Chapter 62-297, F.A.C.
Visible emissions tests of silo dust collector exhaust points shall be conducted while loading the silo at a rate that is representative of the normal silo loading rate. The minimum loading rate shall be 25 tons per hour unless such rate is unachievable in practice. If emissions from the weigh hopper (batcher)
operation are also controlled by the silo dust collector, the batching operation shall be in operation during the visible emissions test. The batching rate during the emissions test shall be representative of the normal batching rate and duration. Each test report shall state the actual silo loading rate during emissions testing and, if applicable, whether or not batching occurred during emissions testing.
If emissions from the weigh hopper (batcher) operation are controlled by a dust collector which is separate from the silo dust collector, visible emissions tests of the weigh hopper (batcher) dust collector exhaust point shall be conducted while batching at a rate that is representative of the normal batching rate and duration. Each test report shall state the actual batching rate during emissions testing.
Compliance Demonstration. Per the conditions of Rule 62-297.310(7)(a), F.A.C., each dust collector exhaust point shall be tested annually for compliance with the visible emission limiting standard of Rule 62-296.414(1), F.A.C. New facilities permitted pursuant to Rule 62-210.300(4), F.A.C., Air General Permits, shall demonstrate initial compliance no later than
30 days after beginning operation, and annual compliance within 60 days prior to each anniversary of the air general permit notification form submittal date. Existing facilities permitted pursuant to Rule 62- 210.300(4), F.A.C., Air General Permits, shall demonstrate compliance within 60 days prior to submitting an air general permit notification form and within 60 days prior
to each anniversary of the air general permit notification form submittal date.
As found, it is reasonable for DEP to interpret these rules to allow a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62- 210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice.
As found, the evidence proved that AIC submitted valid VE test results and that there were no emissions from AIC's baghouse during cement loading of the silo.
Under Rule 62-296.414(2), the demonstration of compliance also includes:
Unconfined Emissions. The owner or operator shall take reasonable precautions to control unconfined emissions from hoppers, storage and conveying equipment, conveyor drop points, truck loading and unloading, roads, parking areas, stock piles, and yards as required by Rule 62-296.320(4)(c), F.A.C. For concrete batching plants the following shall constitute reasonable precautions:
Management of roads, parking areas, stock piles, and yards, which shall include one or more of the following:
Paving and maintenance of roads, parking areas, and yards.
Application of water or environmentally safe dust-suppressant chemicals when necessary to control emissions[.]
Removal of particulate matter from roads and other paved areas under control of the owner or operator to mitigage [sic] reentrainment, and from building or work areas to reduce airborne particulate matter.
Reduction of stock pile height or installation of wind breaks to mitigage [sic] wind entrainment of particulate matter from stock piles.
Use of spray bar, chute, or partial enclosure to mitigage [sic] emissions at the drop point to the truck.
The evidence was that AIC's operation takes the required reasonable precautions. AIC maintains its parking areas and yards and applies water when necessary to control emissions. AIC also uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck.
As found, DEP allowed AIC to continue operations prior to and during the pendency of this proceeding as part its manner of enforcing compliance. But DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See § 120.60(5), Fla. Stat. (revocation or suspension of a permit is initiated by the agency). See also Rule 28-107.104 (implementing the statute); Rule 62-4.530(4)(DEP general permits); Rule 62-4.100(3)(DEP permits, in general); Associated
Home Health Agency, Inc. v. Dept. of Health and Rehabilitative Services, 453 So. 2d 104 (Fla. 1st DCA 1984)(proceeding to revoke a license filed by a private party must be dismissed for lack of jurisdiction and standing).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order.
DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
ENDNOTES
1/ Except as otherwise noted, Rule references are to the current codification of the Florida Administrative Code, as reflected in the Joint Exhibits.
2/ The Petition incorrectly identified the permittee as Action Rental Equipment, Inc. This was corrected after the matter was referred to DOAH.
3/ Designated were: pages 6-7; page 8, lines 1-3, 12-14; page
9, lines 6-13; page 10, lines 4-12; page 15, lines 22-25; page
16, lines 1-6; page 17, lines 5 and 12-25; page 18, lines 1-21;
page 19, lines 11-12; page 20, lines 8-25; page 21, lines 1-2
and 9-25; page 23, lines 17-25; page 24, lines 1-4 and 12-19;
page 25, lines 1-5; page 27, lines 12-18; page 28, lines 1-25;
page 29, lines 1-3 and 8; page 30; page 31, lines 12-25; page
32, lines 1-6, 12-14, and 18-22; pages 33-34; page 36, lines 12-
25; page 38, lines 9-17 and 20-21; page 39, lines 9-25; page 40,
lines 1-10; page 41, lines 3-6 and 13-25; pages 42-45; pages 48-
49; page 50, lines 13-15 and 20-25; page 51, line 5 through page
52, line 17; page 54, lines 14-25; page 55, lines 108; page 56,
lines 18-25; page 57, lines 5-18; page 58, lines 8-14; page 59,
lines 1-9 and 21-25; page 60, lines 1-11 and 16-18; pages 61-65;
page 66, lines 5-25; pages 68-69; page 70, lines 10-25; pages
71-73; page 74, lines 12-16; page 75, lines 14-22; page 77, line
11 through page 78, line 4.
4/ Designated were: page 4, lines 6-20; page 6-8; page 9, lines
1-3, 6-8, and 14-25; page 10, lines 1-25; page 11, lines 19-25;
page 12, lines 1-2; page 14, lines 2-13; page 15, line 1 through
page 16 line 20; page 17, lines 1-25; page 19, lines 6-24; page
22, lines 11-12, 19, and 21-25; page 23, lines 1-3, 9-12, 16-18,
and 20-25; page 24, lines 1-2; page 25, lines 21-25; page 26, lines 1-10 and 20-21. (AIC moved to strike additional designations made by Petitioners as untimely. While the additional designations were one day late, the motion to strike is denied, since both AIC and DEP still had time to respond with additional designations of their own.
5/ The parties were invited to further argue the point in post- hearing submissions but did not.
6/ All statutory references are to the 2005 codification of the Florida Statutes.
7/ Use of a deposition in this fashion does not depend upon the hearsay exceptions found in the Florida Evidence Code, in particular Sections 90.803(22) and 90.804(2)(a), Florida Statutes. See W.M. v. Dept. of Health, etc., 553 So. 2d 274,
277 (Fla. 1st DCA 1989).
8/ At the hearing, counsel for Petitioners asserted that the witness resided more than 100 miles away, and counsel for AIC disputed the assertion. It can be determined from the deposition itself where the witness resides and works, which (according to "http://maps.yahoo.com") is more than 100 miles from the place of the final hearing, but there is no indication where the witness was at the time of the final hearing.
9/ In In re Amendments to the Florida Evidence Code, 782 So. 2d 339, 342 (Fla. 2000), the Supreme Court refused to adopt Section 90.803(22) as a rule of evidence, declined to address the issue until there was a true "case or controversy," and expressed "grave concerns" about the statute's constitutionality. The Fourth District held the statute unconstitutional as applied in a criminal case. See Abreu v. State, 804 So. 2d 442 (Fla. 4th DCA 2001). In Grabau v. Dept. of Health, Bd. of Psychology, 816 So. 2d 701, 709 (Fla. 1st DCA 2002), an administrative professional licensing discipline proceeding, the First District declared the statute facially unconstitutional "as an infringement on the authority conferred on the Florida Supreme Court by article V, section 2(a), of the Florida Constitution; and as a violation of article II, section 3, of the Florida Constitution, because it obviates and conflicts with section 90.804, Florida Statutes; and with Florida Rule of Civil Procedure 1.330; and denies due process." The Grabau court certified the issue to the Supreme Court, but the Court's online docket does not indicate that further review in the Supreme Court was sought. As noted in Jones v. R.J. Reynolds Tobacco Co., 830 So. 2d 854 (Fla. 2d DCA 2002), both Abreu, as a criminal case, and Grabau, as a professional license revocation proceeding, "had more serious constitutional implications for the defendants than this civil suit for damages due to wrongful death." Similarly, and perhaps a fortiori, they had more serious constitutional implications than this case. Finally, it also is noted that Florida Administrative Code Rule 28- 106.213(3) provides that hearsay "shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule found in Chapter 90, F.S."
10/ Similar to Rule of Civil Procedure 1.330(a)(3), and unlike Section 90.803(22), Florida Statutes, this statute requires a demonstration that "the proponent . . . has been unable to procure the declarant's attendance or testimony by process or other reasonable means." § 90.804(1)(e), Fla. Stat.
11/ This was especially true in this case, where the deponent was a person who worked under the supervision of the expert witness called by AIC. In addition, while the deponent was on Petitioners' witness list, the deposition transcript was not listed as an exhibit in the Joint Pre-Hearing Stipulation.
12/ According to Petitioners' exhibit list in the Joint Pre- Hearing Stipulation, and the label on the exhibit, the videotape was supposed to have been recorded between November 13 and 15, 2005, but actually had footage from the end of October 2005.
13/ As mentioned in the Preliminary Statement, other issues raised by Petitioners included zoning, the location and hours of operation of AIC's facility, local construction permitting and licensing, roadway debris, diesel truck emissions, noise, and bright lights on trucks and on a billboard on the property.
14/ According to AIC's principal, DEP's Orlando office also fined AIC in the amount of approximately $1,800 for the operation in DEP's Central District. Presumably, AIC also was required to make use of the Concrete Batching Plant Air General Permit for that operation. Petitioners' challenge does not address that operation.
COPIES FURNISHED:
Lea Crandall, Agency Clerk
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Greg Munson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Colleen M. Castille, Secretary Department of Environmental Protection The Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Robert E. Seymour, Esquire Savage Krim Law Firm
121 Northwest Third Street Ocala, Florida 34475-6640
Stan M. Warden, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Robert W. Bauer, Esquire Clayton-Johnston, P. A.
18 Northwest 33rd Court Gainesville, Florida 32607-2553
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.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 27, 2006 | Agency Final Order | |
| Mar. 31, 2006 | Recommended Order | Petitioners challeged the use of a Concrete Batching Plant Air General Permit, but eligibility was proven. |
