STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION CITIZENS AGAINST BLASTING, INC., Petitioner, vs. OGC CASENO. 00-1652 DEPARTMENT OF ENVIRONMENTAL PROTECTION and ANGELO’S AGGREGATE MATERIALS, LTD., Respondents. FINAL ORDER An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in this administrative proceeding. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Petitioner, Citizens Against Blasting, Inc. (“Petitioner”), and Co- Respondent, Angelo’s Aggregate Materials, Ltd. (“Applicant”). A copy of the Recommended Order of Dismissal is attached hereto as Exhibit A. The matter is now before the Secretary of DEP for final agency action. BACKGROUND In July of 2000, DEP issued a Notice of Intent to Issue Environmental Resource Permit (“Permit) to the Applicant. The proposed permit would authorize the Applicant to continue sand mining operations within approximately 75 acres, to expand mining into the limestone stratum within 33 acres, and to construct a paved haul road. The site of ) ) ) ) DOAHCASENO. 00-4007 LA ) ) ) ) ) / the existing and proposed sand-mining activities is west of the City of Jasper in Hamilton County, Florida. Petitioner then filed its initial petition challenging the issuance of the permit to the Applicant, and the matter was referred to DOAH for appropriate administrative proceedings. DOAH Adninistrative Law Judge, Donald L. Alexander (“ALJ”), was assigned to preside over the case. The DOAH proceeding resulted in a lengthy procedural process wherein the Petitioner filed three separate motions for leave to amend its petition. Motions to dismiss and motions in liminie were filed on behalf of DEP and the Applicant. Petitioner was allowed to file two amended petitions during the DOAH proceeding. However, the Petitioner's Motion for Leave to File Third Amended Complaint was denied by the ALJ. The Recommended Order of Dismissal now on agency review contains the following rulings of the ALJ: 1. Petitioner, in its second amended petition, again failed to cite the specific statutes or rules which would purportedly be violated by each of the respective allegations. 2. The second amended petition was legally insufficient, because the allegations therein consisted merely of Petitioner's “concerns” or “speculation” about what might occur. 3. Petitioner again failed to allege how the “substantial interests” of a substantial number of its members would be adversely affected by issuance of the Permit. 4. DOAH has no jurisdiction over this matter, because there are no material facts remaining in dispute. The ALJ ultimately recommended that DEP enter a final order dismissing, with prejudice, Petitioners Second Amended Petition for Administrative Hearing. CONCLUSION The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions with the agencies. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). In this case, the ALJ entered a Recommended Order of Dismissal containing rulings and a recommendation adverse to the Petitioner. Nevertheless, no exceptions were filed by the Petitioner with this agency challenging any of the adverse rulings of the ALJ or his ultimate recommendation. Even if exceptions had been filed by the Petitioner, the ALJ's ruling that DOAH has no jurisdiction over this matter because there are no material facts remaining in dispute appears to constitute a procedural matter over which this agency may not have “substantive jurisdiction” under § 120.57(1)(I), Florida Statutes. It is therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. B. Petitioner's Second Amended Petition for Administrative Hearing is dismissed, with prejudice. C. The Division of Water Resource Management is hereby directed to ISSUE to the Applicant the Environmental Resource Permit in DEP File No. 158176-001, subject to the terms and conditions of the draft permit issued on July 27, 2000, which are incorporated by reference herein. Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. _ , DONE AND ORDERED this ¥ day of Frolrwaroy 2001, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION a B. STRUHS Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 PURSUANT TO § 120.52, ITH THE DESIGNATED RECEIPT OF WHICH IS CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: Shirley J. Whitsett, Esquire 1334 Timberlane Road Suite 2 Tallahassee, FL 32312-1764 Ann Cole, Clerk and Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, FL 32301-1858 Donald R. Alexander, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 and by hand delivery to: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 hae this 1" _ day of fibers — 2001. STATE OF FLORIDA DEPARTMENT : OF ENVIRONMENTAL PROTECTION a JATERRELL WILLIAMS ssistant General Counsel 3900 Commonwealth Bivd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/488-9314

Docket for Case No: 00-004007