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.
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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.
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Mar. 05, 2007 |
Recommended Order cover letter identifying the hearing record referred to the Agency.
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Mar. 05, 2007 |
Recommended Order (hearing held December 18, 2006). CASE CLOSED.
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Feb. 23, 2007 |
Petitioner`s Notice of Filing Proposed Final Order filed.
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Feb. 23, 2007 |
Petitioner`s Proposed Recommended Order filed.
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Feb. 19, 2007 |
Department of Environmental Protection`s Proposed Recommended Order filed.
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Feb. 19, 2007 |
Notice of Filing Proposed Final Order filed.
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Feb. 19, 2007 |
(Respondent) Proposed Recommended Order filed.
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Feb. 19, 2007 |
Respondent, Prestige Gunite, Inc.`s Notice of Filing Proposed Recommended Order filed.
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Jan. 30, 2007 |
Transcript (Volumes I and II) filed. |
Dec. 18, 2006 |
CASE STATUS: Hearing Held. |
Dec. 15, 2006 |
Amended Prehearing Stipulation filed.
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Dec. 14, 2006 |
Aaron Wright, Amy Wright, Joseph Maxwell, Donald Stone and Marlene Matthew Exhibit List filed.
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Dec. 14, 2006 |
Respondents` Prehearing Stipulation filed.
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Dec. 13, 2006 |
Notice to Court filed.
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Dec. 12, 2006 |
Pre-hearing Stipulation filed.
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Dec. 08, 2006 |
Amended Notice of Taking Depositions Duces Tecum filed.
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Dec. 08, 2006 |
Disclosure of Amended Potential Witnesses filed.
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Dec. 08, 2006 |
First Set of Interrogatories to Petitioner Albert E. Koehnlein filed.
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Dec. 08, 2006 |
Memo to M. Donaldson from A. Wright available dates for deposition filed.
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Dec. 08, 2006 |
Disclosure of Amended Potential Witness filed.
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Dec. 07, 2006 |
Notice of Taking Depositions Duces Tecum filed.
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Dec. 07, 2006 |
Pre-hearing Stipulation filed.
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Dec. 05, 2006 |
Disclosure of Potential Witnesses filed D. Stone.
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Dec. 05, 2006 |
Disclosure of Potential Witnesses filed by J. Maxwell.
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Dec. 04, 2006 |
First Set of Interrogatories to Petitioner Amy Wright filed.
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Dec. 04, 2006 |
First Set of Interrogatories to Petitioner Marlene Matthews filed.
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Dec. 04, 2006 |
Disclosure of Potential Witnesses filed.
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Dec. 04, 2006 |
Order Granting Motion to Withdraw as Counsel (E. Jordan, II).
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Dec. 04, 2006 |
(Proposed) Order Granting Motion to withdraw as Counsel filed.
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Dec. 04, 2006 |
Motion to Withdraw as Counsel (E. Jordan II) filed.
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Nov. 21, 2006 |
Disclosure of Potential Witnesses filed.
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Nov. 20, 2006 |
Department of Environmental Protection`s List of Potential Witnesses filed.
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Nov. 14, 2006 |
Order Denying Motion to Reconsider.
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Nov. 14, 2006 |
Order Striking Portions of Petitions.
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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).
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Nov. 13, 2006 |
Motion to Reconsider to Judge Wetherell filed.
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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.
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Nov. 07, 2006 |
Notice of Service of First Set of Interrogatories to Petitioners filed.
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Nov. 06, 2006 |
Notice of Hearing filed.
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Nov. 06, 2006 |
Letter to Judge Wetherell from A. Long filed.
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Nov. 06, 2006 |
Amended Certificate of Service filed.
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Nov. 01, 2006 |
Letter to Judge Wetherell from A. Long responding to the Order of Pre-hearing Instructions filed.
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Oct. 25, 2006 |
Order of Pre-hearing Instructions.
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Oct. 25, 2006 |
Notice of Hearing (hearing set for December 18, 2006; 9:30 a.m.; Tavares, FL).
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Oct. 23, 2006 |
Order Consolidating Cases (DOAH Case Nos. 06-3963 and 06-3964).
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Oct. 23, 2006 |
Amended Response to Initial Order (filed in Case No. 06-3964).
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Oct. 23, 2006 |
Amended Response to Initial Order (filed in Case No. 06-3963).
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Oct. 20, 2006 |
Motion to Consolidate (with DOAH Case No. 06-3964) filed.
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Oct. 20, 2006 |
Response to Initial Order filed.
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Oct. 19, 2006 |
Motion to Relinquish Jurisdiction or, in the Alternative, Motion to Strike and Motion in Limine filed.
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Oct. 13, 2006 |
Initial Order.
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Oct. 12, 2006 |
Petition for Administrative Hearing Objection to Air General Permit Application filed.
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Oct. 12, 2006 |
Notification of Intent to Use General Permit filed.
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Oct. 12, 2006 |
Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
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Oct. 12, 2006 |
Notice of Related Cases (DOAH Case No. 06-3963 and 06-3964) filed.
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Orders for Case No: 06-003963
Issue Date |
Document |
Summary |
Apr. 19, 2007 |
Agency Final Order
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Mar. 05, 2007 |
Recommended Order
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The applicant qualified for use of an air general permit to operate a concrete batching plant.
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