STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CONCERNED CITIZENS LEAGUE OF )
AMERICA, INC. and BRADLEY ) JUNCTION COMMUNITY ASSOCIATION, )
)
Petitioners, )
)
vs. ) CASE NO. 88-1681
)
IMC FERTILIZER, INC. and )
STATE OF FLORIDA DEPARTMENT )
OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing in this case was conducted on November 8-10, 1988, in Bartow, Florida, before J. Lawrence Johnston, duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701
For Respondent Robert L. Rhodes, Jr., Esquire IMC Fertilizer: Samuel J. Morley, Esquire
HOLLAND & KNIGHT
315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301
For Respondent Richard T. Donelan, Esquire DER: Office of General Counsel
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
At the final hearing, Respondent IMC Fertilizer, Inc. ("IMCF") introduced 67 exhibits, numbered 1, 1A., 2-16, 16A., 17-26, 26A., 27-51, 52B., 53-57, 59-
60, and 62-66. The witnesses presented by IMCF were Robert Hearon, Environmental Manager for IMCF; Ann Redmond of the Standard Permitting Section of the Department of Environmental Regulation, an expert in plant ecology and the Department's practice and policies concerning the permitting of dredge and fill projects; Dr. John Garlanger, an expert in surface water hydrology, ground water quality and quantity, and soil mechanics, including foundation engineering and slope stability; Byron Nelson, an expert in noise evaluation and measurement; Les Pickett, an expert on architecture and residential construction techniques; John Dame, Environmental Health Director of the Polk County Public Health Unit, Department of Health and Rehabilitative Services; Dr. David Evans of Water and Air Research, Inc.; and Dr. John Davis, an expert on aquatic
ecology, aquatic chemistry, and reclamation of wetlands. IMCF also presented the rebuttal testimony of Dr. Walter Gunn, an expert on noise measurements, psychoacoustics, physiological acoustics and physiological psychology.
Respondent State of Florida Department of Environmental Regulation ("Department") introduced no exhibits. The Department adopted the direct testimony of Ann Redmond and also presented the testimony of Robert Stetler, environmental manager of the dredge and fill staff at the Department's Southwest District Office, an expert in biology, water quality, wetland impacts, and the Department's dredge and fill practice and procedure; and of Constance Bersok, of the Department's Standard Permitting Section, an expert in wetlands ecology.
Petitioners introduced one exhibit into evidence designated as Petitioners Exhibit No. 1. Witnesses presented by Petitioners were Alan Burdett, an environmental specialist with the Department's Southwest District Office, an expert in botany, biology, and water quality as it relates to dredge and fill projects; Alan Schuey, an environmental specialist with the Department's Southwest District Office, an expert on botany and plan ecology; and Dr. Wilbur Spaul, an expert in noise monitoring, health effects of noise, and noise evaluation.
The parties' Prehearing Stipulation was admitted into evidence as Hearing Officer Exhibit No. 1. The Hearing Officer took official recognition of Section 403, Part VIII, Florida Statutes; Rule 17-2.610(3), Florida Administrative Code; Chapter 17-3, and Chapter 17-12, Florida Administrative Code; 40 C.F.R. Section 131.12; 23 C.F.R., Part 7721; Polk County Phosphate Mining Ordinance No. 88-19; Section 404(c) of the Federal Clean Water Act, 33 U.S.C. Section 1344(c); and Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. Section 4332(2)(C). Copies of the foregoing officially recognized materials were admitted into evidence as Hearing Officer Exhibit 2.
At the final hearing, the parties were granted twenty (20) days after the filing of the transcript of the final hearing within which to serve their proposed recommended orders. The transcript was filed on December 1, 1988.
IMCF served and filed its proposed findings of fact, conclusions of law, and recommended order on December 21, 1988. The Department served its proposed findings of fact, conclusions of law, and recommended order on December 21, 1988. Petitioners served their proposed findings of fact, conclusions of law, and recommended order on December 22, 1988. Each of the proposed recommended orders has been carefully considered in the formulation of this Recommended Order. A specific ruling on each proposed finding of fact contained therein is set forth in the Appendix which is attached to and incorporated into this Recommended Order.
ISSUE
Whether the Department should grant a permit to IMCF to mine and ultimately reclaim 145 acres of wetlands located primarily in Section 14, Township 31S, Range 23E, Polk County, Florida ("Section 14 Area") on the western edge of a larger wetlands system known as "Hookers Prairie."
FINDINGS OF FACT
Background and Procedural History
On July 9, 1987, IMCF filed an application with the Department for a permit to mine phosphate rock from and then reclaim the Section 14 Area. The
Section 14 Area is owned by IMCF. On December 2, 1987, in response to a determination of incompleteness issued by the Department, IMCF supplied additional information which supplemented and modified the original application. The application as augmented and modified was determined to be complete by the Department on December 7, 1987. Department representatives carried out onsite inspections of the Section 14 Area on September 22 and October 9, 14, and 19, 1987, and issued a written permit application appraisal.
Based upon the information contained in the application and on the site visits, the Department determined to issue the requested permit to IMCF subject to certain draft permit conditions.
The Department directed IMCF to publish notice of the Department's intent to issue the permit. The Department's notice of intent to issue was published in the Lakeland Ledger, a newspaper of general circulation in the location of the Section 14 Area on March 15, 1988.
Petitioners objected to the Department's proposed issuance of the permit by filing their Petition to Intervene and Request for Formal Hearing with the Department on April 7, 1988. Petitioners have standing to intervene in this proceeding and participate as parties for the purpose of objecting to the issuance of the subject permit.
Description of Proposed Mining Project
The wetlands that make up the Section 14 Area are part of a larger 162 acre project area proposed to be mined and reclaimed by IMCF. This mining area is located to the south of the eastern portion of Bradley Junction, a small residential community.
The Section 14 Area wetlands make up 131 acres of the overall project area. The remaining 31 acres of uplands involved in the proposed mining project are not subject to Department permitting requirements. IMCF has all necessary permits and approvals to gain access to the upland areas to carry out mining operations. These uplands areas are located primarily in the northernmost part of the project area directly abutting the location of certain residences and churches in eastern Bradley Junction. The jurisdictional wetlands in the Section 14 Area are located no closer than 450 feet from a residential structure in Bradley Junction. Most of the wetlands in the Section 14 Area are substantially farther away from the Bradley Junction residences.
The initial step in the mining process will be to construct a ditch and berm system around the Section 14 Area. This ditch and berm system will effectively segregate the mining area from adjacent wetland areas that are to remain undisturbed. Approximately 99 acres of the Section 14 Area wetlands will actually be mined; the remaining 32 acres will be disturbed by the construction of the ditch and berm system.
Following the construction of the ditch and berm, land clearing will take place. Once land clearing is completed, mining operations will commence. In phosphate mining operations, large, electrically-powered draglines are used. The dragline first removes and casts aside the "overburden" which is the earthen material that over lies the "matrix." The matrix is the geologic deposit that contains phosphate rock. The dragline extracts the matrix and places it into nearby pits where high- pressure waterguns are used to create a slurry of the matrix material. This slurry is then pumped to the beneficiation facility
several miles distant from the mining operations where the matrix slurry is processed to extract the phosphate rock.
The matrix is composed primarily of three major components: phosphate rock, sand, and clay. In the beneficiation process, the phosphate rock is separated from the other two components. Residual clays are then pumped to large settling areas where the clays are allowed to settle and consolidate prior to reclamation. No clay settling area is proposed to be located in the Section
14 Area. The sand "tailings" that are generated in the beneficiation process are pumped back to mined areas for use in reclamation programs. Sand tailings will be used in the reclamation proposed for the Section 14 Area.
IMCF proposes to initially carry out ditching and berming activities in the Section 14 Area. The central and southern portion of the project area is planned to be mined during the period from July 1989 and June 1990. The dragline will then mine an area to the west outside of the project area. The dragline will return to mine the northern portion of the project area in May 1991. Actual mining operations in the northern portions of the Section 14 Area wetlands and the uplands near Bradley Junction residences will occur over approximately a seven-month period and the dragline will depart the area in December 1991.
There are approximately 800,000 tons of phosphate rock underlying the Section 14 Area wetlands. After extraction and beneficiation, this rock will be used for the production of phosphate fertilizer or other phosphate-based products.
Project Modifications
IMCF has agreed to the following modifications to the Section 14 Area mining and reclamation project as originally proposed in July 1987:
The southern boundary of the Section 14 Area has been moved to avoid encroachment on a small stream channel in the upper reaches of the South Prong of the Alafia River, the outlet from Hookers Prairie.
The project has been modified to conform to setback requirements recently adopted by the Board of County Commissioners of Polk County. Under the revised setback requirements, the edge of a mine cut may come no closer than 100 feet from the IMCF property boundary or 250 feet from an occupied residence, whichever distance is greater.
In response to concerns about noise and lights associated with mining operations, IMCF has agreed to restrict the hours of mining operations. Mining operations will not take place during the period from 11:00 p.m. to 7:00
a.m. when the dragline cab is located within 700 feet of a residence. In addition, mining operations will be suspended on Sundays during the period from 7:00 a.m. through 3:00 p.m. when a dragline cab is located within 700 feet of any place of worship in the Bradley Junction community.
The Polk County Mining Ordinance requires that either a berm or a wire fence be constructed on the perimeter operations to limit unauthorized access. IMCF has agreed to construct both a berm and a solid wooden fence, at least six feet high, along the IMCF property boundaries adjacent to residences located in the Bradley Junction community.
IMCF has agreed to expedite the reclamation of areas mined adjacent to residences in the Bradley Junction community. The area encompassing the first mine cut closest to the residences (a distance of 250 to 300 feet) will be recontoured and revegetated within 90 days following completion of mining in the area. The area encompassing the first two mine cuts (a distance of 500 to 600 feet) will be recontoured and revegetated within six (6) months following completion of mining in the area.
Type, Nature and Function of Section 14 Area Wetlands
The Section 14 Area is composed of approximately 127 acres of herbaceous (shrubby) wetlands and approximately 4 acres of young hardwood (forested) wetlands.
Western Hookers Prairie, including the Section 14 Area, has been adversely impacted by land use activities over the last several decades. Parts of the area have been drained and cleared to accommodate agricultural uses. The resulting widely fluctuating water levels have induced the extensive growth of what the Department considers to be undesirable "nuisance species" such as cattails and primrose willow, in these areas. Other areas, especially in the southern portion of the Section 14 Area, contain some relatively diverse herbaceous wetland systems.
The Section 14 Area also has been adversely impacted to some extent by emergency releases of phosphogypsum and acidic process wastewater generated by the chemical manufacture of phosphate-based fertilizer. Such spills occurred in the 1950s and 1960s and resulted in the deposition of high levels of phosphorous and fluoride in western Hookers Prairie. However, the Section 14 area is less affected than eastern parts of the Western Prairie due to a natural slight rise in elevation along the eastern edge of Section 14, causing a natural flow of water containing the contaminants generally south around Section 14.
Wetland systems, in general, can perform certain valuable ecological functions. These functions include: nutrient retention/removal, sediment trapping, flood storage desynchronization, groundwater recharge, food chain support, wildlife habitat, and recreation. Certain wetland systems also serve a shoreline protective/wave dissipation function but that function is not relevant to herbaceous wetland systems like the Section 14 Area that are not adjacent to open water.
Because of the nature of the Section 14 Area and the stresses previously imposed upon it, its ability to perform wetland functions has been reduced.
The nutrient retention/removal function refers to the ability of the vegetation in wetland systems to remove excess nutrients from water. The Section 14 Area does not perform a significant nutrient retention/removal function. The available data indicate that waters leaving western Hookers Prairie at its outlet to the South Prong of the Alafia River contain more nutrients on balance than do waters entering the system. It is not uncommon for wetlands that are in headwaters of a water system to be net exporters of nutrients. In addition, in this particular area, the historical spills of phosphogypsum and acidic process wastewater have overloaded the sediments in the area with nutrients.
The sediment trapping function refers to the ability of wetland systems to filter sediment (suspended particulate matter) from water as it
travels through the wetland area. The Section 14 Area performs a reduced sediment trapping function. Although some of the water entering the Section 14 Area comes from Whiskey Store Creek to the north, some of the water entering Section 14 has already traveled relatively long distances through the rest of western Hookers Prairie so that most of the water entering the Section 14 Area does not contain high levels of sediments. As more and more parts are excised for phosphate mining, the importance of the sediment trapping function of the remaining portions, even Section 14, increases, at least until reclamation projects succeed. See "J. Cumulative Impact," below.
The flood storage/desynchronization function refers to the ability of a wetland system to store rain water generated during storm events and then to release this water gradually, thus reducing the likelihood of downstream flooding. Hookers Prairie, as a whole, does serve a valuable flood storage/desynchronization function. The approximately 130 acres involved in the Section 14 project area only amount to three to four percent of the overall water storage capacity in the affected area. But the Hookers Prairie wetlands have an approximately two foot thick layer of peat that acts as a sponge to absorb water during inundation and slowly release the stored water over time.
It could be misleading to compare the storage of wetland to other water storage acreage on an acre for acre basis. Again, as more and more parts of the Prairie are excised for mining, the importance of the remaining areas increases, at least until reclamation projects succeed. IMCF did not give reasonable assurances as to the cumulative impact of the loss of Section 14 and the other areas under permit on the water storage capacity of the catchment area. See "J. Cumulative Impact," below.
The ground water recharge function of wetlands refers to those situations in which a wetland is connected to an underlying groundwater aquifer system in such a way that surface water flows into the wetland system and then down into the underlying aquifer system. The underlying aquifer system is thus "recharged" by the infusion of surface water through the wetland system. The Section 14 Area does not perform any significant groundwater recharge function. Hookers Prairie, including the Section 14 Area, is a topographic depression. Therefore, water can flow out of the uppermost aquifer system (known as the surficial aquifer) into the wetlands, but the reverse is not true. Furthermore, the water in the wetland area cannot move down into lower aquifer systems (such as the intermediate aquifer or the Floridian aquifer) because of the existence of geologic confining layers that underly the Section 14 Area and inhibit vertical groundwater flow.
The food chain support function refers to the ability of a wetland to produce organisms or biological material that is used as food by other organisms either in the wetland itself or in surface water areas downstream of the wetland system. The Section 14 Area performs some food chain support functions. Food chain support can be performed in three ways. First, dissolved nutrients, such as phosphorous and nitrogen, can be released into the water. Because of the prior spills into Hookers Prairie, the area is already discharging nutrients in amounts that are normally considered to be high. The second mechanism for performing food chain support is the physical flushing of small aquatic organisms downstream to feed the fish or other larger aquatic organisms. Studies carried out by the United States Environmental Protection Agency indicate that the small organisms found in the downstream reaches of the South Prong of the Alafia River do not appear to be similar to those found at the point of discharge from Hookers Prairie. These data indicate that Hookers Prairie produces and releases this type of food chain support but that its direct impact does not extend significantly into the southern reaches of the
South Prong of the Alafia River, as compared to the total production from other tributaries of the river. The third type of food chain support is the release of detrital material (partially decomposed vegetation). Detrital material generated in much of Hookers Prairie is likely to be retained in the Prairie because of the sediment/trapping filtration function discussed above in Finding No. 17(b). However, being adjacent to the outflow from the Prairie to the South Prong, Section 14 could be expected to deliver a larger share of detrital material than the portions of the Prairie further east.
The Section 14 Area provides a wildlife habitat function although it does not appear to serve as diverse a group of wildlife as is served by the eastern portion of Hookers Prairie.
The Section 14 Area is not utilized for recreational purposes. It is densely vegetated so that access by man is difficult. There are no open water areas that could be used for hunting or fishing.
Mitigation
IMCF proposes to mitigate the temporary loss of function caused by the mining of the Section 14 Area by reclaiming the area following the completion of mining operations. The first step in reclamation will be the pumping of sand tailings back into the project area to create a land surface at approximately the original grade. The previously moved overburden material will then be spread and recontoured. Stockpiled organic muck material will then be spread over the reclamation area to provide a nutrient source to support plant growth. Department representatives will review and approve the final contours to assure that they are similar to those found in the original natural environment. Following completion of the contouring, the portion of the project area that will be reclaimed as a wetland will be inundated with water and then revegetated with desirable wetland species.
The reclamation of the Section 14 Area will be subject to extensive monitoring by IMCF. This monitoring will involve short- and long-term vegetation monitoring and water quality monitoring. The results of this monitoring will be submitted to the Department, and the project will not be released from regulatory scrutiny until certain success criteria are met.
During the period of recontouring, revegetation, and monitoring, the berm around the Section 14 Area will remain in place to isolate the area from the adjacent Hookers Prairie system. Once the Department determines that the vegetation in the Section 14 Area has been successfully reestablished, the Department will authorize IMCF to install culverts in the berm to allow for the gradual introduction of exchange of waters between the reclaimed area and the natural Hookers Prairie system. Following this process, after approval by the Department, IMCF will remove the berm area by pushing it back into the ditch and will replant the disturbed area in the previous location of the berm with desirable herbaceous wetland species. At that point, the reclaimed area will be totally reconnected to the rest of the western Hookers Prairie.
The reclamation of the Section 14 Area will involve the recreation of approximately 121 acres of herbaceous wetlands. This is approximately the same amount of herbeceous wetlands that were mined or disturbed in the Section 14 Area. In addition, 24 acres of forested wetlands will be created. This is approximately six times the number of area of forested wetlands that were in the Section 14 Area prior to mining operations.
IMCF has had extensive experience in the reclamation of wetland systems in Florida. The company has reclaimed over 3,000 acres of wetlands over the last ten years. The company's experience includes the reclamation of both herbaceous wetland systems and forested wetland systems.
With regard to the proposed mitigation, the primary issue at dispute in the hearing was whether IMCF can control the growth of nuisance species, such as cattail and primrose willow, in accordance with the Department's current policy. This policy, which will be implemented as a condition of any permit issued in this matter, is that nuisance species shall be limited to ten percent or less of the total cover or, if these species exceed ten percent of the total cover, their density must be declining over several years.
IMCF would use several methods to limit the growth of nuisance species in the reclamation area. The company will flood the reclamation area immediately following recontouring. In addition, the company will assure that water levels are maintained in the project area throughout the vegetation period. These hydrological controls are designed to preclude seeds from nuisance species growing nearby from blowing into the area and propagating. These seeds will not propagate under water. In addition, the project area would be covered by a two-inch to six- inch layer of organic mulch material. The use of such organic material inhibits the growth of nuisance species. Finally, IMCF will plant desirable wetland species on a relatively dense basis; i.e., on
three- to five-foot centers. When established, these desirable species are expected to quickly grow and outcompete any nuisance species that may enter the area.
There is legitimate concern about the growth of nuisance species in the reclamation area and about the company's ability to eradicate or remove nuisance species if in fact the area does become invaded. There also is legitimate concern that the disturbance caused by the construction of the perimeter berm might induce the growth of a five to fifteen foot band of nuisance species outside of the Section 14 Area. Even if this occurred, it would not have a significant impact on the Hookers Prairie system, which already contains a large amount of "nuisance species." Finally, there is a concern whether nuisance species can be kept out of the ditch and berm area after the berm is leveled since there no longer would be hydrological controls in place.
I am persuaded by the weight of the evidence presented in this matter that, with the following additional special permit conditions, IMCF has provided sufficient reasonable assurances to the Department that it will be able to successfully reclaim the Section 14 Area and to control nuisance species growth in accordance with applicable Department policy:
that, in accordance with existing Department policy, the plant material used for revegetation for the reclamation project be plants that grew naturally within 50 miles of the reclamation site;
that the elevations in the reclamation site be "fine-tuned" after recontouring but before removal of the ditch and berm to approximate existing elevations as closely as possible except when deviations from existing elevations might be desirable to better accomplish the goals of the reclamation project and reduce nuisance species;
that, upon removal of the ditch and berm, all nuisance species (cattails and primrose willow) that may have invaded the perimeter band along the berm (see Finding 25, above) be removed and revegetation over the ditch and
berm area be on two to four foot centers to aid competition with any invading nuisance species.
Evaluation of Project Impacts
Extensive testimonial and documentary evidence was presented at the hearing concerning a wide variety of potential impacts associated with the mining of the Section 14 Area. Potential impacts addressed included the impacts of mining and reclamation upon surface water and ground water quality, upon surface water flow conditions, and upon the availability of ground water for use as a portable water supply by the Bradley Junction residents. In addition, evidence was presented concerning potential impacts upon the Bradley Junction community in the form of fugitive dust, physical damage to structures in the community, and impacts associated with machinery noise generate during the mining and reclamation process.
Surface Water Quality
The perimeter berm and ditch system around the Section 14 Area will completely segregate the mining operations from the adjacent Hookers Prairie wetland system and the South Prong of the Alafia River. Therefore, the mining operations will not have a direct adverse impact upon the quality of surface water outside of the Section 14 Area.
As noted in Findings Nos. 17(a) and 17(b), the temporary exclusion of just the Section 14 Area from the Western Hookers Prairie wetlands system will not have a significant adverse water quality impact. But, see "J. Cumulative Impact", below.
Construction of the berm will not significantly affect dissolved oxygen levels in Hookers Prairie even in the areas immediately adjacent to the berm. Natural dissolved oxygen levels in the Hookers Prairie system are relatively low, and its waters are normally in a static or stagnated condition. (Construction of the berm probably will elevate dissolved oxygen levels in some areas near the berm by creation of small open water areas and lower levels in other areas where discarded plant material accumulates.) The weight of the evidence indicates that the construction of the berm will not cause a violation of state water quality standards outside of the Section 14 Area.
During the reclamation process, water quality monitoring will take place and the resulting data will be presented to the Department. Upon Department approval, the reclaimed wetland system will be gradually reconnected to the natural Hookers Prairie system. The water quality in the Section 14 Area after reclamation will comply with applicable State water quality standards.
Ground Water Quality
Several residents of the Bradley Junction community have raised concerns about the quality of the water withdrawn from their portable water supply wells. While it does appear that water from certain of these wells may be of substandard quality, this condition is not a result of phosphate mining operations and will not be affected by the mining and reclamation of the Section
14 Area. The basis for this finding is:
Mining in the Section 14 Area will take place in the surficial aquifer system. Portable water supply wells in the Bradley Junction community area draw water from the intermediate aquifer system. The intermediate aquifer
system is separated from the surficial aquifer system by a thick, relatively impervious clay layer that significantly impedes the vertical flow of ground water.
The Section 14 Area is located hydrologically downgradient from the Bradley Junction community. Any seepage from mining operations will move away from Bradley Junction, not toward that location.
The quality of the water that will be found in the mine cuts and ditches in the Section 14 Area is very good and probably would not significantly adversely impact the quality of the portable water drawn from Bradley Junction water supply wells even if it were physically possible for the mining-related waters to reach the wells.
The Polk County Public Health Unit of the Department of Health and Rehabilitative Services carried out a study of the quality of portable water in the Bradley Junction community. The study indicates that water from certain of the wells exhibit elevated levels of fecal coliform. The probable source of this contamination is improper sanitary conditions in the area near the well locations. There is no evidence to indicate that phosphate mining operations have any impact on the quality of the water in these wells.
Surface Water Flow Conditions
At this time, the construction of the berm and ditch system and the mining in the Section 14 Area will have only a minor impact on surface water flow conditions outside of the Section 14 Area. The proposed mining and reclamation project itself will not cause an increased likelihood of flooding in downstream areas nor will it cause increased erosion in the South Prong of the Alafia River. IMCF has applied for and received a "Works of the District" permit for the Section 14 Area from the Southwest Florida Water Management District, the state agency primarily responsible for evaluating the impact of construction activities on surface water flow conditions. But see "J. Cumulative Impact," below.
Ground Water Availability
The digging of mine cuts in the surficial aquifer can result in a drawdown or lowering of the water table in the surficial aquifer system. If controls were not employed by IMCF in connection with the mining of the Section
14 Area, the surficial aquifer in the area of the Bradley Junction community could be drawn down by as much as five feet below natural levels.
IMCF has applied for and received a consumptive use permit from the Southwest Florida Water Management District, the state agency primarily responsible for regulating the use of ground water in the State of Florida. The consumptive use permit requires IMCF to maintain the water level in the surficial aquifer at historic levels taking into account the natural variations in the water table that occur during the year. IMCF will comply with the conditions of the consumptive use permit by the use of two positive control methods. The perimeter ditch surrounding the project site will serve as a hydrological barrier or recharge ditch that will maintain the surficial aquifer water levels at historic levels. In addition, during mining operations, the dragline will cast the removed overburden material against the face of the mine cut. This procedure will have the effect of sealing the face of the mine cut and inhibiting the flow of ground water from contiguous areas into the mine cut. In accordance with the consumptive use permit, IMCF will monitor water levels
adjacent to the Section 14 Area to assure compliance with the drawdown restrictions. 1/
As noted in Finding No. 32(a), the portable water supply wells in the Bradley Junction community draw water from the intermediate aquifer system. Water levels in the intermediate aquifer system are not significantly affected by the water levels in the surficial aquifer. The two systems operate independently by virtue of the thick confining layer that separates them. Mining operations in the surficial aquifer in the Section 14 Area will have no effect on the water levels in the intermediate aquifer system underlying the
Bradley Junction community. Therefore, the proposed mining operations will have no effect upon the availability of water in the Bradley Junction portable water supply wells.
Dust
Dragline operations and slurry pit operations are wet process activities that do not generally result in the emission of dust. Dust can be emitted as a result of vehicle travel on access roadways, by land clearing operations, and during reclamation activities especially in the dry season under high wind conditions.
IMCF will control dust emissions from the Section 14 Area by use of water trucks to keep access roads moist. In addition, IMCF will curtail land clearing and reclamation operations during periods when high winds are prevailing in the direction of the Bradley Junction community.
Physical Impact on Structures
Certain residents of the Bradley Junction community have complained that nearby mining operations have caused physical damage to their homes. The evidence presented at the hearing, however, demonstrates that neither vibration caused by the equipment used in mining operations nor the construction of mine cuts will cause any adverse physical effects on nearby structures. The basis for this finding are as follows:
Vibration measurements taken in the vicinity of the type of equipment that will be used in the Section 14 Area demonstrates that the vibration levels that will be experienced at the residences closest to the mining operations are far below the level that would cause any structural damage. These worse case conditions would be experienced at a point approximately 250 feet from the mining operations. It should be noted that these conditions will only occur when mining operations are taking place in upland areas outside of the Department's jurisdiction. Vibration impacts resulting from mining activities in the more distant jurisdictional wetland areas are even less significant.
A slope stability analysis carried out by Dr. John Garlanger demonstrated that the construction of a mint cut at a distance no closer than
250 feet from a residence will cause no adverse impact on the structural integrity of the residence. This conclusion is underscored by the fact that the dragline, which is larger and heavier than the typical Bradley Junction home, will safely operate very near the edge of the mine cut without significant risk of slope collapse.
Any current physical damage to structures in the Bradley Junction community is probably the result of age, water damage, improper site preparation, and other improper construction techniques.
Noise
Draglines, pumps, and other pieces of heavy equipment to be used in the mining and reclamation of the Section 14 Area will produce noise that is audible to, and will be annoying to, the people living near the project.
None of the expected noise levels will exceed the guidelines established by the Federal Highway Administration ("FHA") for construction of highway projects near residential communities. The FHA guidelines require that noise levels may not exceed 70 decibels more than 10 percent of the time. Even in the worst case situation, which involves mining in the upland areas no closer than 250 feet from a residential structure, the expected noise levels will not exceed the FHA guidelines. When mining operations occur at more distant locations, the noise experienced in the Bradley Junction community will be proportionately reduced.
The suggested United States Environmental Protection Agency noise level limitation is 55 decibels. At the 55-decibel level, there was scientific evidence that noise exposure resulted in irritability and sleep loss, but no actual hearing loss would occur.
The 55 decibel EPA guideline is calculated differently than the FHA guidelines. The maximum levels expected to occur near the Section 14 Area based on the data collected by Mr. Nelson were essentially in compliance with the EPA recommendations. Furthermore, the predicted noise levels reflect outside noise levels. The noise levels inside the structures in the Bradley Junction community would be below the recommended EPA levels because of noise attenuation by the structure. The mining operations would have a reduced impact upon sleep because the company will not operate between the hours of 11 p.m. and
7 a.m. when close to the residences.
Mining operations in the northernmost portion of the project will occur over a period of seven months. Reclamation in the immediate vicinity of the Bradley Junction community will be completed within six months following mining operations. The predicted worst case conditions during mining and reclamation will occur only over a few weeks with regard to any particular residence. These worst case conditions will occur in upland areas outside the Department's jurisdiction. Noise resulting from activities taking place within jurisdictional wetlands is at even lower levels.
Polk County Ordinance.
The governmental body primarily responsible for public health concerns such as dust, noise and vibration impact or structures is the local government, Polk County. Polk County has enacted a mining setback ordinance which is less restrictive than other nearby counties - - only 250' from the nearest residence versus 500' in Hillsborough County and 1000' in Manatee County. Under the Polk County ordinance, IMCF is able to mine as close to Bradley Junction residents as it proposes.
Archeological Resources
There are no significant historical or archeological resources in the Section 14 Area.
Cumulative Impact
Hooker's Prairie is a wetlands marsh system which comprises the headwaters of the South Prong of the Alafia River. The Section 14 project area is an integral part of the Prairie.
Although IMCF's case thoroughly addressed all other issues raised by the opponents of the Section 14 project-- including noise, dust and even damage to structures from vibration-- its case conspicuously failed to as clearly address the question of cumulative impacts. It is not clear from the evidence if Hookers Prairie historically was 3000 acres, 3500 acres or some other size. Likewise, the current size of the Prairie, unmined and unsevered, also is unclear from the evidence.
DER has issued five previous permits for phosphate mining in Hooker's Prairie. These permits are to W. R. Grace for approximately 1000 acres in the Eastern Prairie and IMCF for approximately 120 acres in the Western Prairie, including the recent IMCF Section 12 project involving mining and filling approximately 100 acres of Hooker's Prairie. It is not clear from the evidence how much of the 1000 acres already has been mined.
DER's appraisal report, dated November 4, 1987, states that there has been recent mining in Section 18 in the Western Prairie. It points out that, as a result, cattails have intruded into Section 13 of the Prairie from the east. The report states that, aside from the Section 14 project area, there were then only 720 acres of wetland left in the Western Prairie, which has been almost blocked from the Eastern Prairie by mining activities, 620 in Section 13 and 100 in the west side of Section 7. It also states that almost 700 acres "in [the Section 14 project) area alone" were then permitted for mining. Although it is not clear, this appears to consist of 96 acres IMCF had under permit "in this immediate vicinity" and 580 acres of the Prairie to the east. It is not clear whether this acreage is in addition to, or part of, the acreage referred to in Finding 48, above.
To date, no one has successfully restored mined wetlands in Hooker's Prairie. IMCF has restored a small, approximately 20 acre tract of wetland in the Western Prairie, but no success determination has yet been made. IMCF's approximately 100 acre restoration in Section 12 is underway. Efforts by Grace to restore mined wetland in the Eastern Prairie were delayed while Grace and DER negotiated an alternative to the original "land and lakes" restoration concept approved under the DER permits. A wetlands restoration concept finally having been agreed to, restoration now is underway.
W. R. Grace has plans to mine the entire remaining wetlands of Hookers Prairie in the foreseeable future.
Wetland restoration takes approximately two to four years. IMCF plans to mine in Section 14 from July, 1989, through December, 1991. Restoration is planned to take place through December, 1994. It may take longer. During part of this time period, IMCF's 120 acres of restoration in the Western Prairie still will not be functional. There was no evidence to suggest that the Grace wetlands restoration would be completed before IMCF plans to complete its
Section 14 restoration project. There was no evidence as to when Grace is expected to complete any restoration of the 1000 acres it has under permit in the Eastern Prairie. The same would be true of any other parts of the wetlands that may be under permit.
In light of the substantial, though undeterminable, reduction of the size of Hooker's Prairie from its historical size, the cumulative impact of removing an additional 131 acres of wetland from the system for approximately five or more years is significant. During this time, the size of functional wetland in the Prairie may be close to just half its historical size or even less. IMCF has not given reasonable assurances that the cumulative impact of the loss of another 131 acres of Hooker's Prairie for five or more years, combined with the recent reduction in the size of the functional wetland, will not be contrary to the public interest. Further phosphate mining in Hooker's Prairie should await successful restoration of wetlands in areas already under permit for mining operations.
CONCLUSIONS OF LAW
Section 403.918(1), Florida Statutes, provides that a dredge and fill permit shall not be issued unless an applicant provides the Department with reasonable assurances that water quality standards will not be violated.
The provisions of 40 C.F.R., Section 131.12, establish certain federal requirements to be implemented through state water quality standards. As such, this federal provision is to be implemented by the Department through its rulemaking processes. This federal provision is not directly enforceable in individual permit proceedings.
With regard to waters, such as those in the Section 14 Area, that are not designated outstanding Florida waters, Section 403.918(2), Florida Statutes, provides that a permit shall not be issued unless reasonable assurances are provided that the project is not contrary to the public interest. The determination of whether a project is not contrary to the public interest involves a balancing of the following seven criteria set out in Section 403.918(2)(a)1.-7., Florida Statutes.
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreation values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archeological resources under the provisions s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Section 403.918(2)(b) , provides:
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project. If the applicant is unable to meet water quality standards because existing
ambient water quality does not meet standards, the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. Reclamation and restoration pro- grams conducted pursuant to s. 211.32 may
be considered as mitigation to the extent
that they restore or improve the water quality and the type, nature, and function of biological systems present at the site prior to the commencement of mining activities.
Section 403.919, Florida Statutes, requires the Department to consider the potential impacts of certain other specified projects in determining whether to issue a dredge and fill permit.
Determining whether a proposed phosphate mining project passes the public interest test inescapably involves consideration of intended reclamation activity. It is the prospect of reclamation and wetland restoration which changes phosphate mining in wetlands from a permanent to a temporary alteration of the waters of the State. The first question on the permittability of any phosphate project is whether the proposed reclamation plan will restore the wetland ecosystem to be disrupted by mining. If the proposed mining site cannot be restored to its previous ecological functions, the adverse consequences of mining, i.e., the wholesale excavation of wetlands, will not be offset and the project will not be permittable under Section 403.918(2)(b), Florida Statutes.
Record evidence shows that IMCF has provided the Department with reasonable assurances that its proposed reclamation plan will successfully restore the 131 acres of wetlands which are to be disturbed by mining. No evidence was presented that the herbaceous wetland system on the Section 14 site is so unique that its functions cannot be replicated by careful establishment of land elevations and contours, attention to reestablishment of the proper hydroperiod, and the replanting of the site with vigorous native wetland species, including trees.
IMCF has provided the Department with reasonable assurance that the proposed mining and reclamation activities in the Section 14 Area will not cause a violation of water quality standards outside the Section 14 Area and that, upon reclamation, the water in the reclaimed area will comply with applicable water quality standards. IMCF has further provided reasonable assurance that the proposed mining and reclamation activities in the Section 14 Area will not cause a violation of ground water quality standards and will not adversely
impact the quantity of water drawn from portable water supply wells in the Bradley Junction community.
Petitioners contend that the permit application in this case should be denied because of certain alleged impacts. These alleged impacts include fugitive dust, ground water drawdown, physical damage to buildings, and noise. Petitioners argue that these impacts must be evaluated either in the context of Section 403.918(2)(a)1., Florida Statutes, which requires the Department to consider and balance "whether the project will adversely affect the public health, safety, or welfare, or the property of others" or, in the alternative, as "secondary impacts" associated with the project. See Environmental Confederation of Southwest Florida Inc. v. Cape Cave Corp., 8 F.A.L.R. 317 (Oct. 16, 1985), affirmed, Cape Cave Corp. v. Dept. of Envir. Reg., 498 So.2d 1309 (Fla. 1st DCA 1986).
No evidence supports Petitioners' claim that vibration from mining and reclamation has caused and will cause local houses to suffer structural damage. No evidence supports the claim that the quantity of portable ground water available for withdrawal by residents will be diminished as a result of mining. No evidence supports the claim that existing contamination in Bradley Junction wells was caused by mining activities.
It is foreseeable that dust may be emitted as a result of mining and reclamation activities. However, IMCF has stipulated that it will undertake reasonable precautions to reduce fugitive dust emissions when necessary. This commitment is sufficient to satisfy the Department's existing rule on unconfined particulate matter emissions. See Rule 17-2.610(3), F.A.C.
As to noise, the Department has never enacted rules specifying noise limits or standards. Moreover, record evidence as to the expected noise indicates that the predicted noise levels are not sufficient to cause adverse effects on listeners' health.
The loudest noise levels expected to be generated in the vicinity of Bradley Junction will occur when mining and reclamation of upland, non- jurisdictional property is in progress, during daylight hours only. A minimum mining setback distance of 250' is specified by Polk County's phosphate mining control ordinance. It is Polk County's exclusive perogative to determine how close to inhabited residences upland phosphate mining will be allowed to encroach.
Considered by itself, IMCF's, mining and restoration project would not be contrary to the public interest under Section 403.918(2)(a)1.-7., Florida Statutes. But also taking into consideration the cumulative impact of past mining activity in Hooker's Prairie, reasonable assurances have not been given that the loss of an additional 131 acres of functional wetland for five or more years would not be contrary to the public interest.
This case is similar in some respects to the seagrass situation in the case of Leisey Shellpit, Inc. v, State of Florida, Department of Environmental Regulation, 9 FALR 2814 2835 (DER 1987). In that case, Hearing Officer Tremor and DER in its Final Order held that, in light of the experimental nature of seagrass transplanting in Tampa Bay, the past failures at such attempts, and the historic loss of 80 percent of the seagrasses in Tampa Bay (9 FALR 2825, paragraph 19) , the seagrass mitigation proposal was unacceptable because reasonable assurances had not been provided. Although in this case IMCF has given reasonable assurances that it can restore the wetland in five or more
years, the cumulative effect of the loss of historic wetland due to recent mining activity is similar to the 80 percent loss of seagrass beds in Tampa Bay. In addition, although IMCF has given reasonable assurances that it can restore the wetland in Section 14 after mining, the cumulative impact increases the risk of harm if it turns out that restoration in Hooker's Prairie, which has not yet been successfully completed, cannot be accomplished.
IMCF has not provided reasonable assurance that the existing and foreseeable cumulative impacts to Hooker's Prairie will not significantly and adversely affect the water storage, water quality and fish and wildlife habitat functions of Hooker's Prairie and the South Prong of the Alafia River. Cumulative impacts demand that no future permits be issued until a successful restoration wetland has been completed.
IMCF's argument that its mining schedule does not allow time for postponement of its Section 14 project does not alleviate IMCF's need to comply with the law. Mining schedules can be amended. If a successful restoration project is eventually created, IMCF's Section 14 could be mined in conjunction with the adjacent Section 13 wetlands. Mining schedules are not a factor that DER can consider in evaluating the Section 403.919 cumulative impacts.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation deny the application of IMC Fertilizer, Inc., to mine for phosphate in Section 14, Hooker's Prairie, at this time.
RECOMMENDED in Tallahassee, Florida this 14th day of February, 1989.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The Oakland Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 14th day of February, 1989.
ENDNOTE
1/ In order to assure compliance, IMCF should maintain water in the ditch at all times. This apparently was not done when IMCF mined in Section 12 recently and should be made an additional special permit condition. Also, the permit conditions should specify that the ditch should not be used as a clay settling area so as to assure that the ditch will function properly to control drawdown.
APPENDIX TO RECOMMENDED ORDER
To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact:
IMCF's PROPOSED FINDINGS OF FACT
1.-5. Accepted and incorporated.
6. Rejected in part in that it was not proven that IMCF will mine the uplands whether or not permitted to mine DER jurisdictional lands.
7.-13. Accepted and incorporated.
Accepted as modified to reflect that only parts of Section 14 have been drained and cleared for agricultural purposes and therefore have a high percentage of nuisance species. Generally, the southern and eastern parts of the project area have been relatively undisturbed and are relatively diverse.
Rejected because, being on the western edge of the Western Prairie and being west of a slight rise along its eastern boundary, Section 14 is less affected by the spills than the rest of the Prairie. Water flows from the spill site in the Eastern Prairie generally to the southeast of Section 14 into the South Prong of the Alafia River.
Accepted and incorporated.
Rejected in that it was not proven that Section 14's wetland function "is significantly limited."
Accepted and incorporated but the implication that Section 14 is therefore to be considered an "inferior" wetland is rejected.
Rejected in part in that not all the water entering Section 14 already has traveled long distances across the Prairie to the east, some comes from Whiskey Store Creek to the north.
Rejected in part in that it does not address adequately the cumulative impact of the Section 14 project and other areas now under hermit on the water storage capacity of the catchment area.
Accepted and incorporated.
Rejected in parts: (1) to some extent, high nutrient levels are expected and normal in headwater wetlands; (2) the evidence does not prove that food support for the Alafia is insignificant but only either that it is consumed in the upper reaches of the South Prong or that it combines with other food sources, or both.
(f)-(g) Accepted and incorporated.
18.-29. Accepted and incorporated.
24.-25. Subordinate in part to fact found and in parts to facts contrary to those found.
26. Rejected in that certain additional special permits conditions are necessary to give reasonable assurances.
27.-28. Accepted and incorporated.
Rejected as not proven that the Section 14 area does not currently provide a significant beneficial water quality function.
Accepted and incorporated to the extent not subordinate or unnecessary.
First two sentences, rejected as not proven. This proposed finding is based on the suggestion of one of IMCF's experts that the soil sediments could be buried under sand tailings. But this procedure would be contrary to the application (as confirmed by the testimony of IMCF's representative, Mr. Hearon.) The application calls for the sand tailings to go under the stockpiled overburden, and this is how the project should be accomplished, if permitted. Otherwise, accepted and incorporated.
32.-36. Accepted and incorporated.
37. Accepted and modified with additional permit conditions and incorporated.
38.-41. Accepted and incorporated.
Subordinate in part to facts found and in part to facts contrary to those found.
Rejected that the noise levels should be termed "relatively low" or that noise will not have "a significant impact" on Bradley residents. Otherwise, accepted and incorporated.
Accepted and incorporated.
Rejected as not proven.
DER's Proposed Findings of Fact.
1.-15. Accepted and incorporated to the extent necessary.
16. Rejected in part in that it does not address adequately the cumulative impact of the Section 14 project and other areas now under permit on the water storage capacity of the catchment area.
17.-18. Accepted and incorporated.
First two sentences, accepted and incorporated; second two sentences, rejected as not proven.
Accepted and incorporated.
Last sentence rejected as not proven; otherwise, accepted and incorporated.
22.-23. Accepted and incorporated.
24. Rejected as not proven that the effects of noise on sleep will not be "significant" although it might not be as wide- spread or last as long as if machinery were to operate all night. Otherwise, accepted and incorporated.
25.-29. Accepted and incorporated to the extent necessary.
30. Rejected as not proven that IMCF clans to keep the recharge ditch full although it should, and this should be a special permit condition if a permit is issued. Otherwise, accepted and incorporated.
31.-35. Accepted and incorporated to the extent necessary.
Petitioner's Proposed Findings of Fact
1.-5. Accepted and incorporated. (But the hardwood ratio is 24/4, not 14/4.)
6. The numbers may be correct, but the evidence was not clear how large the Prairie was historically or now is.
7.-9. Accepted and incorporated.
10. Conclusions of Law.
11.-18. Accepted and incorporated.
Rejected that Section 14 is not impacted at all, but accepted that the impact is less than in the rest of the Prairie. The rest is subordinate to facts found.
Subordinate to facts contrary to those found.
Accepted and incorporated.
Rejected as argument contrary to the evidence.
Rejected as contrary to the evidence that this is the only modification. Otherwise, accepted and incorporated to the extent necessary.
Accepted and incorporated to the extent necessary.
Rejected as contrary to the evidence. Impossible, no; extremely difficult, especially over a large tract, yes.
26.-27. Accepted and incorporated to the extent necessary.
Rejected as contrary to facts found.
Accepted and incorporated to the extent necessary.
Accepted but unnecessary.
Conclusions of law.
See 6., above.
First sentence, accepted and incorporated; second sentence (25 percent phase-in) not supported by the evidence.
Rejected as contrary to the evidence. Mining is planned to begin July, 1989, and the dike is planned to be removed approximately December, 1994. The dike is planned to be restored in the year or two following removal of the dike.
35.-36. Accepted and incorporated.
37. Accepted and incorporated in part. However, there are important factual distinctions between this case and the cases cited. Also, there is an explanation for "unsuccessful" Grace restoration.
38.-39. Subordinate to facts found. 40.-41. Accepted and incorporated.
42.-43. Rejected. There was no evidence that a 1 to 1 mitigation ratio contravenes the DER policy that was explicated in this case. (The actual ratio is 135 to 131).
44. Rejected as contrary to facts found. 45.-46. Conclusion of Law.
47.-65. Accepted but subordinate, in some cases to facts contrary to those found. Also, irrelevant in part or in whole because those noise levels would occur during mining of non-jurisdictional uplands which will not occur between the hours of 11 p.m. and 7 a.m. Polk County established a 250' setback for mining in that area.
There was no proof that the blood pressure elevation would have any noticeable adverse health effect. Fatiguing and speech interference may occur, but see 47.-65., above, and Findings 42-43.
Accepted and incorporated.
68.-69. Rejected in part as not proven, in part argument and in part as conclusion of law.
COPIES FURNISHED:
RICHARD T. DONELAN, ESQUIRE
DEPARTMENT OF ENVIRONMENTAL REGULATION 2600 BLAIR STONE ROAD
TWIN TOWERS OFFICE BUILDING TALLAHASSEE, FLORIDA 32399-2400
THOMAS W. REESE, ESQUIRE
123 EIGHTH STREET NORTH
ST. PETERSBURG, FLORIDA 33701
ROBERT L. RHODES, JR., ESQUIRE SAMUEL J. MORLEY, ESQUIRE HOLLAND & KNIGHT
POST OFFICE DRAWER 810 TALLAHASSEE, FLORIDA 32302
DALE H. TWACHTMANN, SECRETARY DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING
2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
DANIEL H. THOMPSON, GENERAL COUNSEL DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING
2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
CONCERNED CITIZENS LEAGUE OF AMERICA, INC. and BRADLEY JUNCTION COMMUNITY ASSOCIATION,
Petitioners,
vs. DOAH FILE NOS. 88-1681
OGC FILE NOS. 88-0320
IMC FERTILIZER, INC. and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents,
/
FINAL ORDER
On February 14, 1989, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me and all parties his Recommended Order, a copy of which is attached as Exhibit A. On February 24, Concerned Citizens League of America, Inc., and Bradley Junction Community Association ("Petitioners") filed exceptions to the Recommended Order, attached as Exhibit B. On March 1, Respondent, IMC Fertilizer, Inc., ("IMCF") filed its exceptions to the Recommended Order, along with a memorandum in support of its exceptions and a request for oral argument, attached as Exhibit C. Also on March 1 the Florida Department of Environmental Regulation ("Department") filed its exceptions to the Recommended Order, attached as Exhibit D. On March 6, IMCF filed a response to Petitioners' exceptions, attached as Exhibit E. On March 13, petitioners filed a response to the exceptions of IMCF and the Department, attached as Exhibit F. The matter thereafter came before me as Secretary of the Department for final agency action.
BACKGROUND
This matter began with the timely filing of a Petitioner to Intervene and Request for Formal Hearing by Petitioners. They challenged the Department's intent to issue a dredge and fill permit to IMCF for the mining of phosphate rock and subsequent reclamation of a 162 acre site that includes 131 acres of jurisdictional wetlands. The mining area, referred to as "Section 14," is in
the western portion of a wetland system know as Hookers Prairie, and is located south of the eastern portion of Bradley Junction, a small residential community in Polk County. Hookers Prairie serves as the headwaters South Prong of the Alafia River. The hearing officer concluded that IMCF had provided reasonable assurances that water quality standards would not be violated by either the mining or reclamation; that the proposed mining and reclamation project considered by itself, was not contrary to the public interest requirements contained in Section 403.918, Florida Statutes; that the proposed reclamation plan would successfully restore the 131 acres of wetlands to be disturbed by mining; and that the proposed project would not violate groundwater quality standards nor adversely impact the quantity of water drawn from potable water supply wells in the Bradley Junction community. Nothwithstanding these conclusions, however, the hearing officer recommended denial of the permit to IMCF because he concluded that contrary to the requirements of Section 403.919, Florida Statutes, IMCF failed to provide reasonable assurances that existing and foreseeable cumulative impacts to Hookers Prairie would not adversely and significantly affect certain functions of the prairie and the South Prong of the Alafia River to such a degree as to be contrary to the public interest.
RULING ON EXCEPTIONS
Petitioners' Exceptions Exception Nos. 1 and 2
Petitioners except to Findings of Fact 21 and 26, and because they are related I shall discuss them together. The focus of Petitioners' exceptions involves the adequacy of IMCF's proposed mitigation once mining of Section 14 has been completed. IMCF proposes to replace 127 acres of herbaceous wetlands with 121 acres of herbaceous wetlands, and 4 acres of forested wetlands with 24 acres of forested wetlands. At the time this application was received and evaluated, the Department had no rule that set out the replacement ratios for wetlands disturbed by Department permitted activities. Instead, policies had evolved that assisted Department staff when considering mitigation issues. See, e.g., Port Everglades Authority v. Department of Environmental Regulation, 9 FALR 5613 (Final Order dated October 9, 1987). McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1979), authorizes an agency to use non-rule policy where the existing of such policy and the staff's application of that policy are fully explained during the course of the proceedings before a hearing officer. Based upon my review of the record from the hearing, I find that there is competent substantial evidence to support Findings of Fact 21 and 26 made by the hearing officer on this issue. (T-76, 84; IMCF Exhibit Nos. 7 and 65) Therefore, I must reject Petitioners' first two exceptions to these factual findings, as well as reject Petitioners' invitation to substitute its proposed findings 42 and 43 for the findings of the hearing officer. My role in reviewing a hearing officer's findings of fact is narrowly limited by statute and decisions of appellate courts, and I cannot substitute my judgment on such findings for that of a hearing officer as long as there is competent substantial evidence of record to support the findings. Section 120.57(1)(b)1C., Florida Statutes. Kibler v. Department of Business Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982).
Exception No. 3:
Petitioner excepts to the hearing officer's Conclusion of Law 7, which concludes that IMCF provided reasonable assurances that its proposed reclamation plan would successfully restore the 131 acres of wetlands to be disturbed by
phosphate mining. As discussed in the previous paragraph, the factual bases underlying this conclusion reached by the hearing officer are fully supported by competent, substantial record evidence, and I cannot disturb those factual findings. Furthermore, the conclusion is consistent with the Department's approach to reviewing mitigation proposals. Therefore, Petitioners' Exception No. 3 is rejected.
IMCF's and the Department's Exceptions
Except as noted below, the exceptions filed by both IMCF and the Department were to the same Findings of Fact and Conclusions of Law of the hearing officer. Therefore, to the extent possible I shall treat their exceptions together.
IMCF Exception No. 1:
IMCF takes exception to Finding of Fact 17(b) because it fails to include a finding that water entering western Hookers Prairie is not highly sedimented.
The Department's exceptions did not address this finding. The testimony cited by IMCF in support of its exception does not support a finding that water entering western Hookers Prairie is not highly sedimented. There is competent substantial evidence to support the hearing officer's finding. (T-362, 383-384, 478-479) As my review of findings of fact is limited to ascertaining whether there exists competent substantial evidence to support a factual finding, I must reject this exception.
IMCF Exception Nos. 2 and 2 and Department Exception Nos. 1 and 4:
In IMCF Exception No. 2 and Department Exception No. 1, both except to Finding of Fact 17(c), which addresses the flood storage/desynchronization function of Section 14. Both object to the portion of Finding 17(c) that states:
But the Hookers Prairie wetlands have an approximately two foot thick layer of peat that acts as a sponge to absorb water during inundation and slowly release the absorbed water over time. It could be misleading to compare the storage of wet land to other water storage acreage on an acre for acre basis.
IMCF and the Department assert that the hearing officer misunderstood the testimony of IMCF expert Dr. John Garlanger, and that there is no competent substantial evidence to support the hearing officer's finding. My record review convinces me that if Dr. Garlanger had been the sole witness to address this issue, their exceptions may have had merit. There is other evidence, however, to support the hearing officer's finding concerning the function of the peat layer on water storage, evidence that IMCF introduced during the hearing. (IMCF Exhibit 5, unnumbered p. 5; and IMCF Exhibit 53, pp. 8 and 15.) While the hearing officer may have mislabeled the water storage function of the peat layer as "flood storage," such mislabeling is not fatal to the finding. There is competent substantial evidence to support the finding in and of itself, and therefore I shall not disturb it. Accordingly, I also reject Department Exception No. 4, and the invitation to substitute its proposed finding for that made by the hearing officer on this issue.
Both IMCF and the Department except to the hearing officer's finding, also in Finding of Fact 17(c), that IMCF did not provide "reasonable assurances as to the cumulative impact of the loss of Section 14 and the other areas under permit on the water storage capacity of the catchment area." Both parties argue that there is no competent substantial evidence to support this finding, and again refer to the testimony of Dr. Garlanger for support. My review of Dr.
Garlanger's testimony is not for the purpose of reweighing the evidence; instead, it is undertaken solely to ascertain whether it supports the hearing officer's finding. While Dr. Garlanger did indeed testify that he had analyzed the cumulative impact of removing Section 14 from the prairie's flood storage function (T-257), and that this analysis excluded areas currently being mined, I must conclude from my review of the record, as did the hearing officer, that Dr. Garlanger's analysis was incomplete, for reasons which I will explain when I address my response to the next series of exceptions. Therefore, IMCF's Exception Nos. 2 and 3 and the Department's Exception No. 1 are rejected.
IMC Exception Nos. 4 & 5 and Department Exception No 2:
Both IMCF and the Department next except to binding or fact 47. Their exceptions are directed at the last two sentences, which state:
It is not clear from the evidence if Hookers Prairie historically was 3000 acres, 3500 acres or some other size. Likewise, the current size of the Prairie, unmined and unsevered, is also unclear from the evidence.
Concerning the historic size of Hookers Prairie, their exceptions are well- taken. The Department has maintained in previous dredge and fill permit proceedings that the cumulative impact review outlined in Section 403.919, Florida Statutes, is directed at past, present, and foreseeable future activities permitted by Chapters 403 and 380, Florida Statutes. Manasota-88, Inc. v. Wilbur Boyd Corp., 9 FALR 644 (Final Order dated June 14, 1987). Thus, the historic size of Hookers Prairie is irrelevant to the analysis of cumulative impacts, and Finding of Fact 47 is modified to that extent.
I am not able to accept the parties' exceptions to the finding concerning the present size of the Prairie. The record contains the following colloquy between Ann Redmond and counsel for Petitioners during her deposition testimony:
Q.: Of the 3000 acres of the Hookers Prairie wetland system that you described, is - how much of that wetland system is currently still existing?
A.: Currently not mined and severed, is that what you mean?
Q.: Correct.
A.: Approximately, I would guess, 1500 to 2000 acres.
(IMCF Exhibit 26-A, p. 40)
It is the hearing officer's function to evaluate witness demeanor and credibility. I attribute the hearing officer's inability to make a finding on
the present size of the unmined portions of the Prairie to IMCF's inadequate proof on this issue. In light of other matters which IMCF failed to prove on the issue of cumulative impacts discussed in the next paragraph, I do not find it necessary to remand this matter to the hearing officer for additional fact finding.
Counsel for IMCF points out in its memorandum in support of this exception that the size of Hookers Prairie in the mid-1970's, when Chapters 403 and 380, Florida Statutes, became effective, is relevant to the implementation of the cumulative impact doctrine. IMCF is correct in its citation to Manasota-88, Inc., v. Wilbur Boyd Corp., supra, for this proposition. However, absent from the record is any persuasive evidence of what the Prairie's size was in the mid- 1970's or currently. Various exhibits and testimony indicate the Prairie is 2,600 acres, 3,000 acres, 3,500 acres, or 3,713 acres in size. (T-214; IMCF Exhibits 50, 53, and 26-A, pp. 38-40.) None of these figures include, as a reference, when these estimates were made. The burden of proof in licensing proceedings is upon the applicant. Florida Department of Transportation v. J.
W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). It is clear from my review of the record that IMCF did not meet its burden on this initial aspect of the analysis of cumulative impacts - i.e., presenting evidence concerning the size of the Prairie in the mid-1970's, the current size of the Prairie including permitted projects and unmined acreage not under permit, as well as available evidence on foreseeable projects to be located in the Prairie. Petitioners raised the issue of cumulative impacts in their Petition, at hearing, and in their proposed recommended orders. IMCF and the Department had notice that this issue was of concern to Petitioners, yet did not meet their burden of persuasion on the matter. The applicant must shoulder the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest. Brown v. State of Florida Department of Environmental Regulation, 9 FALR 1871, (Final Order dated March 27, 1987). Without this initial level of information, it was difficult to assess accurately what, if any, the cumulative impacts of this project would be. For these reasons, I reject IMCF's Exception Nos. 4 and 5, and the Department's Exception No. 2, concerning the current undisturbed size of the Prairie.
IMCF Exception No. 6:
IMCF's sixth exception is to that portion of Finding of Fact 49 that finds the western portion of Hookers Prairie to have been almost blocked from the eastern portion of the Prairie by mining activities. The Department did not except to this finding. IMCF points out that in the testimony of Dr. John Davis, (T-354-356) he emphasized that water continues to flow from the eastern portion of the Prairie through the western portion of the Prairie, where the proposed project is located. I must reject IMCF's exception. Dr. Davis' testimony is not the basis for the finding. This finding is based on IMCF Exhibit 5, which does not describe the flow of water in the Prairie. Instead, it merely describes where mining activities are ongoing in the Prairie in relation to Section 14. IMCF's Exhibits 14 and 49 also support this finding.
There being competent, substantial evidence to support Finding of Fact 49, I shall not disturb it.
IMCF exception Nos. 7, 8 and 9 and Department Exception Nos.
3 and 5:
The remainder of IMCF's and the Department's exceptions all consider the issue of cumulative impacts. I shall make the following general comments before ruling explicitly on each exception. Section 403.919, Florida Statutes,
requires that the Department consider cumulative impacts. However, previous cases have recognized that "as a basis for denial, the Department does have some degree of discretion in analyzing cumulative impacts in that such impacts go to the weight to be given in the weighing of the seven factors in the public interest test." Brown v. State of Florida Department of Environmental Regulation, 9 FALR at 1876a (Final Order dated March 27, 1987). The Department applies the cumulative impact analysis on a case-by-case basis. Volusia Conservancy, Inc. v. Bayou Arbors, Inc., 9 FALR 5824 (Final Order dated October 30, 1987). It appears from my review of the record that IMCF and the Department may have met the initial burden during presentation of the case-in-chief that the applicant and the Department had analyzed what they considered to be the cumulative effects of this project. (T-257, 427; IMCF Exhibit 26-A, p. 34) However, the record also discloses that Petitioners then presented evidence concerning cumulative impacts sufficient to shift the burden of going forward with additional evidence on this issue back to IMCF. The applicant failed to carry that ultimate burden. Florida Department of Transportation v. J. W. C. Company, Inc., supra.
While the legal conclusions of the hearing officer on this issue may be somewhat unclear, they are not contrary to law or agency policy and I am not compelled to reject them. Furthermore, they are factually supported by competent substantial evidence. The hearing officer reached his findings and conclusions on the cumulative impact issue without much guidance from either IMCF or the Department, as neither party provided much, if any, treatment of the issue in their proposed recommended orders. Based upon my record review, I conclude, as did the hearing officer, that IMCF did not provide reasonable assurances that the cumulative impacts of this and other existing and foreseeable mining projects on Hookers Prairie would not result in significant adverse impacts to such a degree as to be contrary to the public interest.
Contrary to the Department's exceptions, I do not find that the hearing officer treated the issue of cumulative impacts as a third "test" an applicant must successfully meet in order to obtain a dredge and fill permit. Had he done so, the Department would be correct in its assertion that his conclusion was incorrect. Instead, I find that, though his discussion may have been imprecisely stated, the hearing officer correctly understood that cumulative impacts should be considered during the process of evaluating the seven criteria which make up the public interest test in Section 403.918(2)(a), Florida Statutes, and that his finding of adverse cumulative impacts on water storage, water quality, and fish and wildlife habitat functions in Finding Nos. 17(b), (c), (e), and (f), was sufficiently related to the public interest criteria listed at Section 403.918(2)(a)1.-7., Florida Statutes, to support his conclusion.
I am somewhat concerned that the hearing officer reached his conclusions on cumulative impacts without precise information on the size and location of other mining projects permitted or anticipated for Hookers Prairie. However, all parties agree that significant portions of the Prairie are being, or will be, mined for phosphate (IMCF Exhibit 26-A, pp. 40-42; IMCF Exhibit 5); that the interval between mining and successful reclamation can be several years (7-82, 448; IMCF Exhibit 26-A, pp. 66-69); and that no reclamation projects within Hookers Prairie have been declared successful. (T-436, 464, 487, 501; IMCF Exhibit 26-A, pp. 40-44). I do not believe this deficiency is the type of error that necessitates a remand to the Division of Administrative Hearings for further proceedings. If anything, it is a further indication of the applicant's failure to meet its burden to demonstrate reasonable assurances on this issue.
Brown v. State of Florida Department of Environmental Regulation, supra.
I shall now explicitly address IMCF's and the Department's exceptions to the Conclusions of Law on cumulative impacts. Concerning Finding of Fact 53, I agree with both IMCF and the Department that the last two sentences of this finding are more appropriately considered to be Conclusions of Law. However, they are labeled, though, I am not inclined to reject the correctness of the hearing officer's conclusion as it is based on findings of fact supported by record evidence that is both competent and substantial, legally correct and consistent with Department policy. I therefore reject IMCF's Exception No. 4 and Department's Exception No. 3.
With regard to both IMCF's and the Department's exception to Conclusion of Law 15, I agree that the case of Leisey Shellpit. Inc., v. State of Florida Department of Environmental Regulation, 9 FALR 2814 (Final Order dated June 15, 1987), serves no useful comparison to the situation presented in this case.
Leisey Shellpit concerned mitigation of seagrasses (and mangroves to a lesser extent), which was found to be a risky proposition. The issue in this case is not whether the mitigation will succeed, because the hearing officer found that the applicant had provided reasonable assurances of success. Instead, the issue here involves significant, adverse impacts to Hookers Prairie by mining and reclamation projects, both ongoing and anticipated.
The Department and IMCF both except to Conclusion of Law 16. The hearing officer made factual findings that support the ultimate conclusion as to the adverse impacts on water storage, water quality, and fish and wildlife habitat functions of Hooker's Prairie. My review of the seven criteria which must be weighed when determining whether a project is contrary to the public interest indicates that these functions are all appropriate items to consider in undertaking the public interest balancing test contained in Section 403.918(2)(a), Florida Statutes. Although the hearing officer fails to actually state in this conclusion that adverse cumulative impacts on these functions render the project contrary to the public interest and thus unpermittable, it is reasonable to infer this meaning into his conclusion when it is read in conjunction with Finding of Fact 53 and Conclusion of Law 14, which when taken all together indicate that the hearing officer correctly applied the Department's policy in this matter. Based upon the foregoing reasons, I reject IMCF's Exception No. 9 and the Department's Exception No. 5 to Conclusions of Law 14, 15, and 16.
In its Exception No. 8, IMCF excepts to Conclusion of Law 17, particularly the third sentence, which concludes: "If a successful restoration project is eventually created, IMCF's Section 14 could be mined in conjunction with the adjacent Section 13 wetlands." Although the record indicates that the adjacent Section 13 wetlands are owned by W.R. Grace, (T-96-97) this conclusion is immaterial to the ultimate recommendation of the hearing officer - i.e., that the permit be denied due to IMCF's failure to provide reasonable assurances that the cumulative impacts are not contrary to the public interest. Therefore, I reject IMCF's exception on this point.
Finally, though not labeled as an exception, IMCF requests that I issue the permit for Section 14 subject to a condition that mining activities will not begin in Section 14 until IMCF's Section 12 reclamation project has been hydrologically reconnected to Hookers Prairie. I reject this request by IMCF. In limited situations, the Department has issued permits conditioned on future, contingent events. An example of this is Kralik, et al., v. Ponce Marina Inc., and State of Florida Department of Environmental Regulation, 11 FALR 669 (Final Order dated January 12, 1989). In that case, Petitioners had concerns over the
design, maintenance, and operation of a flap gate in the applicant's proposal. Evidence was presented at the hearing by the applicant that the flap gate could be designed, installed and operated in such a manner to ensure flushing necessary to comply with water quality standards. Even with these contingencies, the hearing officer found that the applicant had provided reasonable assurances based upon that evidence that the permitting standards would be met. This case contrasts with Florida Keys Citizens Coalition and City of Key West v. 1800 Atlantic Developers and State of Florida Department of Environmental Regulation, 8 FALR 5564 (Final Order dated October 17, 1986), which resulted in denial of a permit due to lack of specificity in, among other items, the proposed mitigation plan. This lack of specificity at hearing resulted in the conclusion that the applicant had failed to provide reasonable assurances that would result in permit issuance.
More analogous to this proceeding is Rudloe and Gum Specimen Co., Inc. v.
Dickerson Bayshore, Inc. and State of Florida Department of Environmental Regulation, 10 FALR 3426 (Final Order dated June 9, 1988), where the applicant provided reasonable assurances for every aspect of the project except whether the project would violate water quality standards in nearby Class II waters, including waters approved for shellfish harvesting. Although it was possible that additional hydrographic studies could be performed that would ultimately provide reasonable assurances on the issue, the permit was nonetheless denied because the evidentiary omission in the applicant's case was deemed critical to the provision of reasonable assurances on this issue.
It is the applicant's responsibility to provide reasonable assurances at hearing that its project will meet applicable v standards and criteria. The hearing officer concluded that IMCF did not prove entitlement to its permit to mine Section 14. My review of the record and pleadings convinces me that the hearing officer's findings have record support and his conclusions are legally correct. However, I also find that the doctrine of administrative res judicata does not bar IMCF from resubmitting its permit application if it can adequately address the issue of cumulative impacts to Hookers Prairie. Rudloe and Gulf Specimen Co., Inc., v. Dickerson Bayshore, Inc. and State of Florida Department of Environmental Regulation, id. If IMCF does refile its application for a permit to mine phosphate in Section 14, it will then have the opportunity to establish, either with the additional condition it proposed in its exceptions or by other means, that it has provided reasonable assurances that adverse cumulative impacts do not render its project contrary to the public interest.
ORDER
Having considered the Recommended Order, the record of this proceeding, and the parties' exceptions and responses thereto, it is, therefore,
ORDERED:
The hearing officer's Findings of Fact and Conclusions of Law are adopted in their entirety in this Final Order, except to the extent modified by my rulings on exceptions;
The request for oral argument of IMC Fertilizer, Inc., is DENIED; and
The application for dredge and fill Permit Number 531366509 of IMC Fertilizer, Inc., to mine phosphate in Section 14 of Hookers Prairie is hereby DENIED.
Any party to this Order has the right to seek judicial review of the 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, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; 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 Order is filed with the clerk of the Department.
DONE AND ORDERED this 29th day of March, 1989, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S. 120.52 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.
3-30-89
Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Rob Rhodes and Sam Morley, Esquires, Holland and Knight, P.O. Box 810, Tallahassee, Florida 32302; Thomas W. Reese, Esquire, 123 8th St. North, St. Petersburg, FL 33701; and hard delivery to Richard Donelan, Esquire, Twin Towers Building, 2600 Blair Stone Road, Tallahassee, Florida
32399-2400 and J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; on this 30th day of March, 1989.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Feb. 13, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 29, 1989 | Agency Final Order | |
| Feb. 13, 1989 | Recommended Order | Application to mine phosphate denied. Did not provide reasonable assurance that weland would not be adversely affected. Mining schedule not at issue. |
