05-002891 Paul Corbiey And Barbara Corbiey vs. Action Instant Concrete, Llc And Department Of Environmental Protection Status: Closed Recommended Order on Friday, March 31, 2006.

Summary: Petitioners challeged the use of a Concrete Batching Plant Air General Permit, but eligibility was proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL CORBIEY and BARBARA )

CORBIEY, )

)

Petitioners, )

)

vs. ) Case No. 05 - 2891

)

ACTION INSTANT CONCRETE, LLC )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

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).

APPEARANCE S

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

emission s (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, 200 5 .

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 o rder ed to whow c ause why the final

hearing should not be canceled, the case dism issed, and t he 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 aga in 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.

Ko ogler, 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 a dmitted without objection. (Petitioners' Exhibit 4

consists of designated portions 3 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 portions 4 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 12 0.57(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 civi l 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 thoug h 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

Ci vil Procedure 1.330(a)(3)(B), the hearsay exception s 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 he aring, 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 Petitio ners' Exhibit 6, a

videotape of AIC's operations taken in October and

November 2005 12 , 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

objec tions 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 p arty 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

1. 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 S tate R oad 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 c ement,

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, w hich

is headquartered in Tampa.

2. 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

tr ansfer 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.

I f there are par ticulate emissions during the process, they

typically would come from the baghouse.

3. 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 thr ee sides. The

walls are there mainly to contain the aggregate and sand but

also serve as a partial windbreak.

4. During AIC's operations, trucks come to pick up cement,

aggregate, and sand. To load cement onto the trucks, c ement 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 a re driven offsite, typically to a

construction site, where th e cement, aggregate, and sand are

batched to form concrete.

5. When AIC began operations, its yard was covered with

grass and weeds, which helped suppress fugitive dust when trucks

drove in an d out. Later, the grass and weeds died, and AIC

installed three sprinkler heads to keep the area watered to help

suppress fugitive dust.

6. When AIC began construction and operation, Petitioners

complained to numerous authorities that AIC's constructio n and

operation wer e 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.

7. It does not appear f rom 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.

8. As DEP instructed, AIC had a VE test performed in

acc ordance 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 oppo sing 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.

9. 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.

10. In the case of AIC's operation, VE testing measures

stack emissions during standard loading of cement under

pres sure. 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 e missions 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.

11. Dr. Koogler did not perform the test himself and di d

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 Gen eral Permit.

12. 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.

Thi s 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.

13. 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 durin g the loading of at least

some of the trucks. However, as indicated above, VE testing is

no t done for unconfined emissions; i n addition, standardized

opacity measurements could not have been made from a videotape.

Finally, the videotape showed that AIC u ses a chute, or partial

enclosure, to mitigate emissions a t the drop point to the truck,

and the evidence was that AIC maintains its par king areas and

yards and applies water when necessary to control emissions.

Cf. Conclusions 22 - 23, infra .

14. Dr. K oogler 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 s tatutes and rules.

15. 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 re build

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 Batch ing

Plant Air General Permit Notification Form, fee, and proof of

public notice.

16. 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 questio n ed

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

17. 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, AI C'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.

18. The provisos for use of the Concrete Batching Plant

Air General Permit under Rule 62 - 210.300(4)(a)2. include:

a. T he 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. . . . .

19. Under Rule 62 - 296.414, the demonstration of compliance

includes:

(1) S tack 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.

* * *

(3) Test Methods and Procedures. All

emissions tests performed pursuant to the

requirements of this rule shall comply with

the following requirements.

(a) The test method for visible

emissions shall be DEP Method 9,

incorporated in Chapter 62 - 297,

F.A.C.

(b) Test procedures shall meet all

applicable requirements of Chapter

62 - 297, F.A.C.

(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 s hall 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 em issions testing.

(d) 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 condu cted 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.

(4) 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

demonstrat e 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.

20. 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 r ebuild 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 Batc hing Plant Air General Permit Notification

Form, fee, and proof of public notice.

21. 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.

22. U nder 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, tr uck 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:

(a) Management of roads, parking areas,

stock piles, and yards, which shall include

one or more of the following:

1. Paving and maintenance of roads, parking

areas, and yards.

2. Application of water or environmentally

safe dust - suppressant chemicals when

necessary to control emissions[.]

3. Removal of pa rticulate 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.

4. Reduction of stock pile height or

installation of wind brea ks to mitigage

[sic] wind entrainment of particulate matter

from stock piles.

(b) Use of spray bar, chute, or partial

enclosure to mitigage [sic] emissions at the

drop point to the truck.

23. The evidence was that AIC's operation takes the

required reas onable precautions. AIC maintains its par king

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.

24. As found, DEP allowed AIC to co ntinue 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 susp ension 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 Rehabilitativ e

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).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOM MENDED 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 fi led within 30 days after issuance of the final

order.

DONE A ND ENTERED this 31st day of March , 2006, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hear ings

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 a nd 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; pag e 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; pag e 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; pag e 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 designati ons 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 Pet itioners 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

declare d 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 i t 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 furthe r 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 impl ications 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 -

1 06.213(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 9 0.803(22), Florida Statutes, this statute requires a

demonstration that " the proponent . . . has been unable to

procure the declarant's attendance or testimony by pro cess or

other reasonable means." § 90.804(1)(e), Fla. Stat.

11 / This wa s especially tr ue 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 Pr e - 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 en d 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 emissi ons, 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 wa s

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 Build ing, 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

Coll een 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 32 607 - 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 f inal order in this case.