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ALBERT E. KOEHNLEIN vs PRESTIGE GUNITE, INC. AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, 06-003963 (2006)

Court: Division of Administrative Hearings, Florida Number: 06-003963 Visitors: 20
Petitioner: ALBERT E. KOEHNLEIN
Respondent: PRESTIGE GUNITE, INC. AND DEPARTMENT OF ENVIRONMENTAL PROTECTION
Judges: D. R. ALEXANDER
Agency: Department of Environmental Protection
Locations: Tavares, Florida
Filed: Oct. 12, 2006
Status: Closed
Recommended Order on Monday, March 5, 2007.

Latest Update: Apr. 20, 2007
Summary: The issue is whether Prestige Gunite of Orlando, Inc. (Prestige) may use an air general permit pursuant to Florida Administrative Code Rule 62-210.300(4)(c)2. to operate a concrete batch plant in an unincorporated part of Lake County, Florida.The applicant qualified for use of an air general permit to operate a concrete batching plant.
STATE OF FLORIDA P i L E D DEPARTMENT OF ENVIRONMENTAL PROTECTION ALBERT E. KOEHNLEIN, AMY AND AARON WRIGHT, JOSEPH MAXWELL, DONALD STONE, and MARLENE MATTHEWS, Petitioners, vs. OGC CASE NO. (06-1833 : DOAH CASE NOS. 06-3963 PRESTIGE GUNITE OF ORLANDO, INC., 06-3964 and DEPARTMENT OF ENVIRONMENTAL PROTECTION, : ee ad Respondents. | FINAL ORDER On March 5, 2007, an Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”) submitted his Recommended Order (“RO”) to the Department of Environmental Protection (“DEP”) in this administrative proceeding. The RO indicates that copies were served to the Petitioners, Albert E. Koehnlein, Amy and Aaron Wright, Joseph Maxwell, Donald Stone, Marlene Matthews, and their counsel. A copy was also served to counsel for Co-Respondent, Prestige Gunite of Orlando, Inc. ("Prestige"). A copy of the RO is attached hereto as Exhibit A. No Exceptions to the RO were filed by any of the parties. The matter is now before the Secretary of DEP for final agency action. BACKGROUND On August 31, 2006, Prestige filed with DEP a Notification of Intent to Use a General Permit to operate a concrete batch plant at 17600 State Road 50, near Clermont, Florida. On August 31 and September 1, 2006, Prestige (through its parent corporation) then caused to be published in two newspapers its notice that an application had been filed. Prestige’s gunite facility is located just south of State Road 50 (which runs in an east-west direction), and it appears to be just west of the Florida Turnpike and approximately half way between the Cities of Winter Garden (in Orange County) and Clermont (in Lake County). The site is bordered by State Road 50 to the north, a mini- storage facility to the west, a light industrial area and vacant lot to the east, and a residential area to the south. At least since 1985, a residential subdivision has occupied the area immediately south of and adjacent to the site of the proposed facility. The facility will share a six-acre tract of property already used by Prestige/AB Ready Mix, Inc., under a permit obtained by that entity in 2001. The gunite portion of the business will use the northern part of the property, while the ready-mix operations are located on the southern part of the tract, which lie less than a hundred feet or so from the back property line of the closest homes. Access to both operations will be from State Road 50, which lies directly north of the property. in addition, there is a truck maintenance facility on the site, which will perform maintenance work on vehicles for both operations. . The proposed gunite facility consists of an existing cement storage silo containing dry powdered cement, sand storage areas, and office space. The finished product (gunite) is used in the construction of swimming pools. The dry powdered cement will be loaded into the rear compartment of the cement trucks, while sand is loaded by a front end loader into the front compartment on the truck. The sand is stored in nearby storage piles and will be covered by tarpaulins when not in use. The materials are then transported to a job site, off-loaded, mixed with water, and sprayed into a swimming pool shell. These operations are in contrast to the existing ready-mix operations now being conducted on the southern half of the property, which involve the on-site mixing of cement, sand, aggregate, fly ash, and water to create cement, the loading of the wet mixture into trucks, and the hauling of the wet cement to the job site. In addition, the ready-mix cement trucks require continual cleaning on site, which creates a noisy environment for the surrounding area. A general permit is established by rule and in this case DEP standards provide that if a facility such as that proposed by Prestige emits less than 100 tons per year of particulate matter and is therefore a Non-Title V source, it qualifies to operate under a general permit, assuming that all other criteria are satisfied. Under this process, the DEP reviews the notification for compliance with two applicable rules: Florida Administrative Code Rule 62-296.414, which establishes the substantive criteria for using a general permit for a concrete batching plant, and Florida Administrative Code Rule 62-210.300(4)(c)2.a.-f., which contains the procedural requirements for obtaining a Non-Title V Air General Permit. Unless the DEP decides to deny the application, no formal proposed agency action is issued. Therefore, none was issued in this case. Absent the filing of a protest by a third party, the applicant may then use the general permit after the time for third parties to file a challenge has expired. On September 20, 2006, Petitioner, Albert E. Koehnlein, who lives near the proposed facility, filed his Petition challenging the proposed activity on various grounds: This Petition was later assigned Case No. 06-3963. On the same date, Petitioners, Amy and Aaron Wright, Joseph M. Maxwell, Donald Stone, and Marlene Matthews, who also live near the proposed facility, filed their Petition challenging the same activity. -This Petition was later given Case No. 06-3964. Although numerous allegations were raised in the Petitions, most were struck by Order dated November 14, 2006, leaving only the allegation of whether Prestige qualified to use the general permit by meeting the applicable requirements under Florida Administrative Code Rules 62- - 210.300(4)(c)2. and 62-296.414. The formal hearing was held on December 18, 2006, in Tavares, Florida. Petitioners presented a wide array of concerns, most of which were not relevant to the narrow issue in this case and instead appeared to be related to the operations of the ready-mix plant or were matters outside the jurisdiction of the DEP. After the formal hearing was concluded and post-hearing filings considered, the ALJ entered his RO now on administrative review by DEP. RECOMMENDED ORDER The ALJ’s RO found that the permit requirements most relevant to the concerns raised by the Petitioners were the two that required the owner “limit visible emissions to 5 percent opacity" and "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." Fla. Admin. Code R. 62- 296.414(1) and (2). The ALJ found that to control unconfined emissions, Prestige will operate water and sweeper trucks (which are shared with the ready-mix operation) that will periodically water the grounds during hours of operation and remove excess materials from roads and other loading areas which might otherwise be carried by the wind to surrounding neighborhoods. Prestige will place tarpaulins over sand piles, when not in use, to prevent sand from being blown out of the yard. The ALJ also found that to control stack emissions, a bag system has been installed on top of the silo in which the dry powdered cement is stored. This is intended to reduce emissions that may be generated from the gunite silo during loading and unloading operations. The baghouse will be periodically inspected and bags changed on a regular basis. Also, a shaker system is automatically initiated during the loading process which reduces emissions by moving cement and cement dust down into the silo rather than up and out of the silo. Further, the lid on the chute (which fits onto the opening of the truck where the material is loaded) has been modified to prevent sand or cement from "smoking" up and causing an emission problem. Also, within thirty days after operations are commenced, Prestige must conduct a visible emission test on each dust collector exhaust point. The ALJ ultimately concluded that the procedural requirements for obtaining a Non-Title V Air General Permit were met. Therefore, Prestige qualified to use the applied-for air general permit to operate a concrete batch plant at the Clermont Yard. 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 ALUs by filing exceptions to DOAH recommended orders. 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). The ALJ’s RO concluded that Prestige met all the requirements to use the applied-for air general permit. Nevertheless, the Petitioners did not file any Exceptions to the Recommended Order objecting to the ALJ’s findings of fact or objecting to the DOAH hearing procedures. Having considered the applicable law in light of the uncontested findings of fact set forth in the Recommended Order, and being otherwise duly advised, it is ORDERED that: ; A. The Recommended Order (Exhibit A) is adopted in its entirety and incorporated herein by reference. B. Prestige Gunite of Orlando, Inc., is qualified to use the applied-for Air General Permit at 17600 State Road 50, Clermont, Florida, provided such activities continue to - be in compliance with the requirements set forth in Fla. Admin. Code Rules 62- 210.300(4)(c)2 and 62-296.414. 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 Rules 9.110 and 9.190, 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. gt , DONE AND ORDERED this /7_ day of April, 2007, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Tt ibd MICHAEL W. SOLE Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED. holwadell +4)a)01 CERTIFICATE OF SERVICE . [HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: Albert E. Koehnlein 17535 Jefferson Street Winter Garden, FL 34787-9608 Joseph Maxwell 17515 Mandarin Circle Winter Garden, FL 34787-9657 Michael M. Donaldson, Esquire Carlton Fields, P.A. Amy Wright 17529 Mandarin Circle Winter Garden, FL 34787-9657 Donald Stone 17539 Mandarin Circle 34787-9657 Anna H. Long, Esquire Lowndes, Drosdick, Doster, and Post Office Drawer 190 Kantor, P.A. Tallahassee, FL 32302-0190 Post Office Box 2809 ‘Orlando, FL 32802-2809 Claudia Llado, Clerk, and 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: Jack Chisolm, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 . RIVA this \ \ day of April, 2007. © STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION FRANCINE M. FFOLK Senior Assistant General Counsel 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 06-003963
Issue Date Proceedings
Apr. 20, 2007 Final Order filed.
Mar. 05, 2007 Recommended Order cover letter identifying the hearing record referred to the Agency.
Mar. 05, 2007 Recommended Order (hearing held December 18, 2006). CASE CLOSED.
Feb. 23, 2007 Petitioner`s Notice of Filing Proposed Final Order filed.
Feb. 23, 2007 Petitioner`s Proposed Recommended Order filed.
Feb. 19, 2007 Department of Environmental Protection`s Proposed Recommended Order filed.
Feb. 19, 2007 Notice of Filing Proposed Final Order filed.
Feb. 19, 2007 (Respondent) Proposed Recommended Order filed.
Feb. 19, 2007 Respondent, Prestige Gunite, Inc.`s Notice of Filing Proposed Recommended Order filed.
Jan. 30, 2007 Transcript (Volumes I and II) filed.
Dec. 18, 2006 CASE STATUS: Hearing Held.
Dec. 15, 2006 Amended Prehearing Stipulation filed.
Dec. 14, 2006 Aaron Wright, Amy Wright, Joseph Maxwell, Donald Stone and Marlene Matthew Exhibit List filed.
Dec. 14, 2006 Respondents` Prehearing Stipulation filed.
Dec. 13, 2006 Notice to Court filed.
Dec. 12, 2006 Pre-hearing Stipulation filed.
Dec. 08, 2006 Amended Notice of Taking Depositions Duces Tecum filed.
Dec. 08, 2006 Disclosure of Amended Potential Witnesses filed.
Dec. 08, 2006 First Set of Interrogatories to Petitioner Albert E. Koehnlein filed.
Dec. 08, 2006 Memo to M. Donaldson from A. Wright available dates for deposition filed.
Dec. 08, 2006 Disclosure of Amended Potential Witness filed.
Dec. 07, 2006 Notice of Taking Depositions Duces Tecum filed.
Dec. 07, 2006 Pre-hearing Stipulation filed.
Dec. 05, 2006 Disclosure of Potential Witnesses filed D. Stone.
Dec. 05, 2006 Disclosure of Potential Witnesses filed by J. Maxwell.
Dec. 04, 2006 First Set of Interrogatories to Petitioner Amy Wright filed.
Dec. 04, 2006 First Set of Interrogatories to Petitioner Marlene Matthews filed.
Dec. 04, 2006 Disclosure of Potential Witnesses filed.
Dec. 04, 2006 Order Granting Motion to Withdraw as Counsel (E. Jordan, II).
Dec. 04, 2006 (Proposed) Order Granting Motion to withdraw as Counsel filed.
Dec. 04, 2006 Motion to Withdraw as Counsel (E. Jordan II) filed.
Nov. 21, 2006 Disclosure of Potential Witnesses filed.
Nov. 20, 2006 Department of Environmental Protection`s List of Potential Witnesses filed.
Nov. 14, 2006 Order Denying Motion to Reconsider.
Nov. 14, 2006 Order Striking Portions of Petitions.
Nov. 14, 2006 Order (Mr. Jordan shall file a motion to withdraw as counsel of record for Petitioners Amy Wright, et al, if is no longer representing them).
Nov. 13, 2006 Motion to Reconsider to Judge Wetherell filed.
Nov. 13, 2006 Notice of Filing; Letter to Parties of Record from E. Jordan, II, advising all parties that the firm of Edward P. Jordan II, P.A. would not be representing the Petitioner filed.
Nov. 07, 2006 Notice of Service of First Set of Interrogatories to Petitioners filed.
Nov. 06, 2006 Notice of Hearing filed.
Nov. 06, 2006 Letter to Judge Wetherell from A. Long filed.
Nov. 06, 2006 Amended Certificate of Service filed.
Nov. 01, 2006 Letter to Judge Wetherell from A. Long responding to the Order of Pre-hearing Instructions filed.
Oct. 25, 2006 Order of Pre-hearing Instructions.
Oct. 25, 2006 Notice of Hearing (hearing set for December 18, 2006; 9:30 a.m.; Tavares, FL).
Oct. 23, 2006 Order Consolidating Cases (DOAH Case Nos. 06-3963 and 06-3964).
Oct. 23, 2006 Amended Response to Initial Order (filed in Case No. 06-3964).
Oct. 23, 2006 Amended Response to Initial Order (filed in Case No. 06-3963).
Oct. 20, 2006 Motion to Consolidate (with DOAH Case No. 06-3964) filed.
Oct. 20, 2006 Response to Initial Order filed.
Oct. 19, 2006 Motion to Relinquish Jurisdiction or, in the Alternative, Motion to Strike and Motion in Limine filed.
Oct. 13, 2006 Initial Order.
Oct. 12, 2006 Petition for Administrative Hearing Objection to Air General Permit Application filed.
Oct. 12, 2006 Notification of Intent to Use General Permit filed.
Oct. 12, 2006 Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
Oct. 12, 2006 Notice of Related Cases (DOAH Case No. 06-3963 and 06-3964) filed.

Orders for Case No: 06-003963
Issue Date Document Summary
Apr. 19, 2007 Agency Final Order
Mar. 05, 2007 Recommended Order The applicant qualified for use of an air general permit to operate a concrete batching plant.
Source:  Florida - Division of Administrative Hearings

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