STATE OF FLORIDA Winter Protection

Document Sample
STATE OF FLORIDA Winter Protection Powered By Docstoc
                           STATE OF FLORIDA

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
PROTECTION,                                    )
       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.

       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.


       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 ALJs 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


      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


      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.

        DONE AND ORDERED this              __ day of April, 2007, in Tallahassee, Florida.

                                                    STATE OF FLORIDA DEPARTMENT
                                                    OF ENVIRONMENTAL PROTECTION

                                                    MICHAEL W. SOLE

                                                    Marjory Stoneman Douglas Building
                                                    3900 Commonwealth Boulevard
                                                    Tallahassee, Florida 32399-3000


        CLERK                     DATE

                             CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by
United States Postal Service to:

Albert E. Koehnlein                                Amy Wright
17535 Jefferson Street                             17529 Mandarin Circle
Winter Garden, FL 34787-9608                       Winter Garden, FL 34787-9657

Joseph Maxwell                                     Donald Stone
17515 Mandarin Circle                              17539 Mandarin Circle
Winter Garden, FL 34787-9657                       34787-9657

Michael M. Donaldson, Esquire                      Anna H. Long, Esquire
Carlton Fields, P.A.                               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

this       day of April, 2007.

                                             STATE OF FLORIDA DEPARTMENT
                                             OF ENVIRONMENTAL PROTECTION

                                             FRANCINE M. FFOLKES
                                             Senior Assistant General Counsel

                                             3900 Commonwealth Blvd., M.S. 35
                                             Tallahassee, FL 32399-3000
                                             Telephone 850/245-2242



Shared By:
Description: STATE OF FLORIDA Winter Protection