11-006495 Finr Ii, Inc. vs. Cf Industries, Inc., And Department Of Environmental Protection
 Status: Closed
Recommended Order on Monday, April 30, 2012.


View Dockets  
Summary: Applications for ERP, CRP, & WRP modifications to conduct phosphate mining and reclamation activities in Hardee County approved.

1STATE OF FLORIDA

4DEPARTMENT OF ENVIRONMENTAL PROTECTION

8FINR II, INC., )

12)

13Petitioner, )

15)

16vs. ) OGC CASE NO. 11-1756

22) DOAH CASE NO. 11-6495

27CF INDUSTRIES, INC. and DEPARTMENT )

33OF ENVIRONMENTAL PROTECTION, ) )

38Respondents. )

40)

41FINAL ORDER

43An Administrative Law Judge ("AU") with the Division of Administrative Hearings

56("DOAH"), on April 30, 2012. submitted his Recommended Order ("RO") to the

72Department of Environmental Protection ("DEP" or "Department") in the above

84captioned proceeding. A copy of the RO is attached as Exhibit A. The RO shows that

100copies were sent to counsel for the Pelitioner, FINR II, Inc. ("FINR"), and to counsel for

118the Respondents, CF Industries, Inc. ("CF"), and the Department. The Petitioner FINR

132filed Exceptions to the RO on May 15, 2012.' The Respondents filed a joint response

147on May 25. 2012. This matter is now before the Secretary of the Department for final

163agency action.

, 165On May 9, 2012, FINR filed a Motion to Stay Proceedings Pending Outcome of

179Petition for Review of Non-Final Agency Action, seeking to stay entry of this Final Order.

194The Department denied the motion by separate order.

202BACKGROUND

203CF first began mining for phosphate in Hardee County in 1 978 at what was then

219known as the North Pasture mine. Mining operations at the North Pasture mine

232concluded in the middle of the 1990s, and the lands associated with that mine were

247compietely reclaimed. Pursuant to locai, state, and federal permits, CF relocated its

259beneficiation plant (Which separates the phosphate ore matrix into phosphate rock,

270waste clay, and sand) to its present location south of State Road 62 in 1993, and began

287operation of its South Pasture mine in 1995. The South Pasture mine encompasses

300about 15,390 acres. After the startup of the South Pasture mine, CF acquired three

315addifionalland parcels totaling approximately 7,512.8 acres with mineable reserves

325contiguous to and immediately south of the South Pasture mine. These parcels are

338collectively referred to as the South Pasture Extension tract or the Project site. CF

352applied to the Department for permits and approvals to conduct phosphate mining,

364reciamation, and associated activities on the South Pasture Extension tract. Approval

375of the applications for the Project will extend the life of the current South Pasture mine

391and beneficiation plant by ten years.

397The Department issued proposed agency actions, on November 21, 2011 ,

407approving CF's applications for the Project's Environmental Resource Permit ("ERP")

419and Conceptual Reclamation Plan ("CRP"), the South Pasture Wetiand Resource

431Permit Modification ("WRP"), and South Pasture Conceptual Reclamation Plan

442Modification. On December 12, 2011, FINR timely filed a Petition challenging the

454proposed agency actions. FINR owns approximately 875 acres of land east of County

467Road 663 and immediately south of and adjacent to the Project site, which it leases to

483two affiliated companies, Florida Institute of Neurological Rehabilitation, Inc. (FINR I,

494Inc.) and FINR III, LLC. FINR I, Inc., operates the Florida Institute of Neurological

508which is a post-acute, state-licensed Inpatient rehabilitation facility

516accredited by the Commission on Accreditation of Rehabilitation Facilities. It

526specializes in the treatment of children and adults who have sustained brain injury or

540some other form of neurologic trauma.

546The was referred by the Department, on December 29, 2011, to the

558DOAH. The ALJ granted CF's motion for a summary hearing under section 120.574,

571FloridaStatutes, which it was authorized to request under Section 378.205(3), Florida

582Statutes ("F.S."). CF also filed a motion to strike portions of the petition and motion in

600limine. The ALJ granted the motions on February 16, 2012, ("the non-final order") and

616proceeded with the accelerated hearing schedule in Section 120.574, F.S. Prior to the

629final hearing, FINR sought review of the non-final order in the First District Court of

644Appeal (1012-1308)2

646On March 12,2012, the Department issued a revised proposed agency action

658incorporating a new modeling report prepared by CFwhich provided further support for

670the Department's proposed action. FINR also submitted a written proffer on matters

6822 FINR's Petition for Review of Non-Final Agency Order remains pending as of the

696date of this Final Order.

701previously excluded by the February 16, 2012, Order. The final hearing was held March

71526-28, 2012, and on April 30, 2012, the AU entered his RO.

727RECOMMENDED ORDER

729In the RO the AU recommended that the Department enter a final order

742approving CF's applications. The AU determined that FINR did not offer credible

754evidence of adverse environmental or water resources impacts to its property as a

767result of mining or reclamation within the footprint authorized by the ERP or CRP. (RO

782at page 47). The AU concluded that a preponderance of competent substantial

794evidence, including the entirety of the application,engineering studies and reports,

805scientific testimony, and a voluminous application, all support the Department's

815detemnination of reasonable assurance of CF's entitlement to the approvals at issue.

827(RO 1[97).

829The Project ERP

832The ALJ found that CF and the Department thoroughly investigated the Project's

844potential for causing adverse fiooding and dewatering impacts on adjacent properties.

855(RO 1[ 33). Event-based stormwater runoff modeling provided reasonable assurance

865that peak discharge rates and outflow volumes at exit points from the Project site under

880post-reclamation would not cause adverse offsite flood impacts. (RO 1[34).

890The AU also found that CF and the Department evaluated the Project's potential

903for causing adverse fiooding and dewatering impacts on adjacent properties during

914mining. (RO 1[37). He found thatCF's application contained during-mining water

924balance analyses that specifically evaluated the biological integrity of on-site and off-site

936preserved areas, streams, and wetlands during mining and after reclamation. There will

948be no substantial change in the during-mining water balance as a result of the extension

963of mining into the Project site. The AU found that the application, past practices and

978experience, and evidence presented at hearing all indicate that CF has more than a

992sufficient amount of water available to conduct the Project while simultaneously

1003maintaining or improving the biological integrity of downstream systems. (RO 1m 38, 39).

1016The AU concluded that CF demonstrated its ability to manage large amounts of water

1030within Its mine recirculation system and store or discharge water as required in order to

1045maintain downstream flows or reduce flooding potential. Thus, the risk of adverse

1057floodin9 during mining was minimal. (RO 1140). The ALJ found that once CF constructs

1071the proposed perimeter ditch and berm system, the area of the drainage basin

1084contributing flow to FINR's property would be reduced by approximately one-half,

1095resulting in significantly less water flowing onto FINR's property during flood events. In

1108addition, a reroute ditch would be installed in concert with the ditch and berm system

1123that will reduce peak flood flows downstream in Troublesome Creek. (RO 1151).

1135The AU found that CF thoroughly assessed the ability of the recharge ditch to

1149maintain recharge to wetlands and adjacent properties during active mining of the

1161Project. CF demonstrated that it would meet the goal of the recharge ditch design to

1176maintain the water table during mining operations, within the normal range of seasonai

1189high and seasonal low water along preserve and property boundaries, including FINR's

1201property. (RO mr 52 - 58, 72).

1208The ALJ found that, in addition to the above analyses, CF and the Department

1222also thoroughly evaluated potential on-site and off-stte water quality issues associated

1233with the Project. The ALJ found that discharges would occur only through permitted

1246outfalls. Additional water quality protection for adjacent undisturbed surface waters and

1257wetlands would be provided by the perimeter ditch and berm systems and other

1270proposed best management practices ("BMPs"), such as silt fences and stormwater

1283collection systems. The ALJ determined that during mining and reclamation, these

1294practices would preclude uncontrolled releases of water to adjacent un-mined and

1305downstream areas. (RO mr 60, 61). The ALJ found that CF prepared a Stormwater

1319Pollution Prevention Plan ("SPPP") to identify BMPs and controls for the Project during

1334land preparation, mining, backfilling, and reclamation. The SPPP also incorporated by

1345reference other documents already in place on the South Pasture mine pursuant to CF's

1359National Pollutant Discharge Elimination System ("NPDES") permit for the South

1371Pasture mine. Among these documents are a Best Management

1380Practices/Pollution/Prevention ("BMP3") Plan that generally describes BMPs for waste

1391management, spill reporting and response, and other specific measures to prevent

1402pollution, and a memorandum of agreement ("MOA") between CF and the Department

1416that describes general design and construction BMPs. The ALJ found that by using

1429these measures at the South Pasture mine, CF has never had any issues with

1443stormwater discharges causing water quality violations. (RO W62, 63). The AU also

1455found that FINR failed to present any competent substantial evidence that the Project

1468willcause adverse water quality impacts during mining. (RO If 64,88).

1479As to ecological issues, the AU found that the level of detail and analysis

1493prOVided by CF in its application to the Department for the Project ERP and CRP, and

1509the South Pasture WRP and CRP Modifications, was more than adequate. The AU

1522determined that CF provided substantially more baseline information in terms of existing

1534site conditions, wetland conditions, and wildlife information than is provided in typical

1546ERP applications. (RO If 65). The AU noted that CF's expert's evidence as to the local

1562and regional ecological, hydrological, and wildlife benefits expected to result from the

1574proposed reclamation was not disputed. Thus, he concluded that CF's wetlands

1585reclamation activities maintained or improved the water quality and the function of the

1598biological systems present at the sile prior to the commencement of mining activities as

1612required under Section 373.414(6)(b), F.S. (RO W66 - 68, 88).

1622The ALJ found that CF considered the potential impacts to off-site wetlands from

1635the Project both during mining and after reclamation, particularly those wetlands that

1647straddle CF's shared property boundary with FINR. The AU also found that the

1660wetlands on FINR's property are similar to nearby wetlands on the Project site, in that

1675historically they have been impacted by agricultural activities, including ditching. (RO If

168769, 70 - 72). The ALJ concluded that no dewatering would occur that would have an

1703adverse ecological effect on FINR's wetlands. (RO W 69 - 77).

1714The Project GRP

1717The ALJ found that CF analyzed whether it would have sufficient materials

1729available to it to accomplish the objectives of the CRP, and sufficient capacity in the

1744existing South Pasture mine and proposed Project site clay settling areas ("GSAs") to

1759dispose of waste clays generated by phosphate matrix processing. (RO 'I! 78). The ALJ

1773found that based upon CF's calculations as reflected in the Life of Mine Backfill Plan

1788("LOMBP"), infonmation contained in the Mine Production Plan ("MPP"), and testimony

1803from CF's expert witness, CF would have sufficient materials to achieve its mining and

1817reclamation objectives; and sufficient capacity to dispose of waste clays in existing

1829GSAs located on the South Pasture mine and proposed CSAs on the Project site.

1843Thus, the ALJ concluded that CF would be able to accomplish the mining and

1857reclamation as proposed. (RO 'Il'Il79 -82).

1863The ALJ detenmined that with respect to phosphate mining reclamation criteria

1874contained in chapter 378, F.S., and rule 62C-16.0051, Florida Administrative Code

1885("FAC."), CF provided reasonable assurances that the Project will meet the

1898reclamation criteria contained in the rule. (RO 'Il'Il87, 89).

1907South Pasture WRP and CRP Modifications

1913The ALJ noted that, as set forth in the Order Granting the Motion to Strike and

1929Motion in Limine issued on February 16, 2012, the Petition did not contain any factual

1944allegations relative to the compliance with appiicable regulatory requirements regarding,

1954or potential for hanm resulting from, the South Pasture Modifications (as opposed to the

1968ERP or CRP for the Project). Therefore, the allegations relating to the South Pasture

1982Modifications were stricken. (RO '1[90). The ALJ found that the prima facie case

1995provided by CF and the Department at the final hearing of CF's entitlement to the South

2011Pasture mine Modifications was not refuted, and FINR did not make a proffer relative to

2026the South Pasture mine Modifications prior to the close of the evidentiary proceedings.

2039Thus, the ALJ reaffirmed his ruling at the final hearing to receive into evidence the

2054pemnit application and the Department's proposed agency action on these two items.

2066(RO'l[90).

2067Motion in Limine and Motion to Strike

2074The ALJ concluded and reaffimned that FINR's assertions regarding Hardee

2084County's quarter-mile setback requirement had no legal basis in any environmental

2095factors that are cognizable under the ERP or CRP pemnitting programs. (RO'l[98). The

2108ALJ further concluded that FINR did not offer any credible evidence of adverse

2121environmental or water resources impacts to FINR's property as a result of mining or

2135reclamation within the footprint authorized by the ERP or CRP. (RO'l[98).

2146STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

2153Section 120.57(1)(1), Florida Statutes, prescribes that an agency reViewing a

2163recommended order may not reject or modify the findings of fact of an ALJ, "unless the

2179agency first detemnines from a review of the entire record, and states with particularity in

2194the order, that the findings of fact were not based on competent substantial evidence."

2208§ 120.57(1 )(1), Fla. Stat. (2011); Charlotte County v. IMC Phosphates Co., 18 So.3d

22221089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA

22382007). The tenn "competent substantial evidence" does not relate to the quality,

2250character, convincing power, probative value or weight of the evidence. Rather,

"2261competent substantial evidence" refers to the existence of some evidence (quantity) as

2273to each essential element and as to its admissibility under legal rules of evidence. See

2288e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287,

2300289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So.3d 1191, 1192 (Fla. 5th DCA

23162010).

2317A reviewing agency may not reweigh the evidence presented at a DOAH final

2330hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See

2343e.g., Rogers v. DepY of Health, 920 SO.2d 27, 30 (Fla. 1st DCA 2005); Balleau v. DepY

2360of Envt/. Prot., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands

2374County Sch. Bd., 652 SO.2d 894 (Fla. 2d. DCA 1995). These evidentiary-related

2386matters are within the province of the ALJ, as the '1act-finder" in these administrative

2400proceedings. See e.g., Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st

2414DCA 2003); Heifetz v. DepY of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA

24291985). Also, the ALJ's decision to accept the testimony of one expert witness over that

2444of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

2459absent a complete lack of any competent substantial evidence of record supporting this

2472decision. See e.g., Peace RiverlManasota Regional Water Supply Authority v. IMC

2483Phosphates Co., 18 SO.3d 1079, 1088 (Fla. 2d DCA 2009); ColliarMed. Glr. v. State,

2497DepYofHRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v.

2512Orlando Utils. Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Therefore, if the

2526DOAH record discloses any competent substantial evidence supporting a challenged

2536factual finding of the ALJ, the agency is bound by such factual finding in preparing the

2552Final Order. See, e.g., Walker v. Bd. of Prof. Eng'rs, 946 So.2d 604 (Fla. 1st DCA

25682006); Fla. DepYofCorr. v. Bradley, 510 So.2d 1122, 1123 (Fla.1stDCA 1987). In

2580addition, an agency has no authority to make independent or supplemental findings of

2593fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA

26101994).

2611Section 120.57(1 )(1), Florida Statutes, authorizes an agency to reject or modify

2623an ALJ's conclusions of law and interpretations of administrative rules ·over which it has

2637substantive jurisdiction." See Barfield V. DepYof Health, 805 SO.2d 1008 (Fla. 1st DCA

26502001); L.B. Bryan & CO. V. Sch. Bd. ofBroward County, 746 So.2d 1194 (Fla. 1st DCA

26661999); Deep Lagoon Boat ClUb, Ltd. V. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001).

2681If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be

2699disregarded and the item treated as though it were actually a conclusion of law. See,

2714e.g., Battaglia Properties V. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161,

2727168 (Fla. 5th DCA 1994). However, neither should the agency label what is essentially

2741an factual determination as a "conclusion of law· in order to modify or overturn

2755what it may view as an unfavorable finding of fact. See, e.g., Stokes V. State, Bd. of

2772Prof'l Eng'rs, 952 So.2d 1224 (Fla. 1 st DCA 2007).

2782An agency's review of the legal conclusions in a recommended order is restricted

2795to those that concern matters within the agency's field of expertise. See, e.g., Charlotte

2809County v. IMC Phosphates Co., 18 SO.3d 1089 (Fia. 2d DCA 2009); GEL. Corp. v.

2824DepY of Envtl. Prot., 875 So.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the

2840primary responsibility of interpreting statutes and rules within its regulatory jurisdiction

2851and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police

2863Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee CounCil, 79 v.

2877Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference shouid be

2890accorded to these agency interpretations of statutes and rules within their regulatory

2902jurisdiction, and such agency interpretations should not be overturned unless "clearly

2913erroneous." See, e.g., Falk v. Beard, 614 SO.2d 1086, 1089 (Fla. 1993); DepY of EnvtJ.

2928Regulation v. Goldring, 477 SO.2d 532, 534 (Fla. 1985). Furthermore, agency

2939interpretations of statutes and rules within their regulatory jurisdielion do not have to be

2953the oniy reasonable interpretations. It is enough if such agency interpretations are

"2965permissible" ones. See, e.g., Suddath Van Lines, Inc. v. DepY of Envtl. Prot., 668 SO.2d

2980209, 212 (Fla. 1st DCA 1996).

2986However, agencies do not have jurisdiction to modify or rejeel rulings on the

2999admissibility of evidence. Evidentiary rulings of the ALJ that deai with 'lactual issues

3012susceptibie to ordinary methods of proof that are not infused with [agency] policy

3025considerations," are not matters over which the agency has "substantive jurisdielion.·

3036See Martuccio v. DepY of Prof'1 Regulation, 622 SO.2d 607, 609 (Fla. 1st DCA 1993);

3051Heifetz v. Dep1 of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Fla.

3066Power & Light Co. v. Fia. Siting Bd., 693 SO.2d 1025, 1028 (Fla. 1 st DCA 1997).

3083Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of

3097fact" and may not be reversed on agency review. See Martuccio, 622 SO.2d at 609.

3112Agencies do not have the authority to modify or reject conclusions of law that apply

3127general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g.,

3139Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001).

3154RULINGS ON EXCEPTIONS

3157The case law of Florida holds that parties to formal administrative proceedings

3169must alert reviewing agencies to any perceived defects in DOAH hearing procedures or

3182in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See,

3197e.g., Comm'n on Ethics v. Barl

3203of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dap1 of Com. v.

3220Bradley, 510 SO.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to

3234certain findings of fact the party "has thereby expressed its agreement with, or at least

3249waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward

3264County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Gtr.,

3278Inc. v. State of Fla., Agency for Haalth Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA

32952003). However, even when exceptions are not fiied, an agency head reviewing a

3308recommended order is free to modify or reject any enroneous conclusions of law over

3322which the agency has substantive jurisdiction. Sea § 120.57(1 )(I), Fla. Stat. (2011);

3335Barfield v. DepY of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee

3350Council, 79 v. Daniels, 646 SO.2d 813, 816 (Fla. 1st DCA 1994).

3362Finally. in reviewing a recommended order and any written exceptions, the

3373agency's final order "shall include an explicit ruling on each exception."

3384See § 120.57(1 )(k), Fla. Stal. (2011). However, the agency need not rule on an

3399exception that "does not identify the disputed portion of the recommended order

3411by page number or paragraph, that does not identify the legal basis for the exception, or

3427that does not include appropriate and specific citations to the record." Id.

3439PETITIONER'S EXCEPTiONS

3441I. Exception concerning ALJ's Febnuary 16, 2012 Order.

3449FINR's first exception is to the AU's reaffirmation andlor incorporation by

3460reference of the AU's February 16, 2012 Order granting CF's motion to strike and

3474motion in limine (the "Order") as a conclusion of law. See Exceptions 1111. FINR

3489presents three arguments to support Its contention that the Order was unauthorized and

3502departed from the essential requirements of law because, (1) the AU lacked statutory

3515authority to grant themotion to strike and motion in limine and to proceed in the manner

3531contemplated by the Order; (2) the Order did not permit FINR to amend its Petition; and

3547(3) the Petition was proper as pled. See Exceptions 1114.

3557Contrary to FINR's contention in this exception, the Department does not have

3569the authority to modify or reject the AU's procedural and evidentiary rulings under the

3583summary hearing provisions of Section 120.574, F.S. Essentially, FINR is unhappy that

3595the AU complied with Section 373.205(3), F.S.; and in the context of conducting the

3609summary hearing under section 120.574 he exercised his sole discretion to rule on

3622procedural and evidentiary issues. See Lee Cty. v. Mosaic Fertilizer, LLC, DOAH Case

3635No. 08-3886, 2009 WL 736931 (Fla. Dept. Env. Prot. February 1, 2009). It is well

3650established that eVidentiary rulings are matters within the AU's substantive jurisdiction

3661and may not be reversed on agency review. See, e.g., Barfield v. DepY of Health, 805

3677So.2d 1008, 1011-12 (Fia. 1st DCA 2001); Martuccio v. DepYof Prof! Regulation, 622

3690So.2d 607, 609 (Fla. 1st DCA 1993).

3697Section 378.205(3), F.S., provides:

3701Administrative challenges to proposed state agency actions

3708regarding phosphate mines and reclamation pursuant to this

3716chapter or part IV of chapter 373 are subject to the summary

3728hearing provisions of s. 120.574, except that the summary

3737proceeding must be conducted within 90 days after a party

3747files a motion for summary hearing, negardless of whether

3756the parties agree to the summary proceeding and the

3765administrative law judge's decision is a recommended order

3773and not a final order.

3778By motion CF requested a summary hearing, which the AU granted, and he conducted

3792the finalhearing within the 90 days as provided in the statute. FiNR's first two

3806arguments are that the AU's actions and rulings "departed from the essential

3818requirements of law." See Exception 1117. This agency does not have substantive

3830jurisdiction, however, over the matters that comprise the essence of FINR's lengthy

3842exception. (d.

3844As to FINR's third argument, the Department adopts in this Final Order the ALJ's

3858ruling that allegations concerning local land use criteria, air impacts, noise, dust, odor,

3871and airborne radioactive particles were immaterial and irrelevant in this proceeding. See

3883Exceptions at Appendix A and RO 1[98.

3890Loca/land use criteria.

3893First, FINR asserts that the ALJ should have allowed evidence and testimony

3905regarding local land use criteria. See Exceptions 111125-34. FINR does not provide,

3917however, any applicable statute or rule that would make the land use criteria relevant in

3932the ERP and CRP context. When determining whether or not to issue a pemnit, an

3947agency may only consider the proposed project and the statutes and rules applicable to

3961the project. See, e.g., Save the St. Johns River v. St. Johns River Water Mgmt. Dist.,

3977623 So. 2d 1193, 1198 (Fla. 1st DCA 1993) ("compliance or noncompliance wrth

3991another agency's pemnilting program should not be Irtigated in this administrative

4002proceeding that must be conducted under statutes and rules relating solely to the

4015District's pemnitting authority"). "rnhe Department is nerther required nor authorized to

4027deny or modify water pollution pemnits based on alleged noncompliance with local land

4040use restrictions and long-range development plans, because the issuance of the pemnit

4052must be based only on the applicable pollution control standards and rules.· Taylor v.

4066Cedar Key Special Water & Sewerage Dist., 590 So. 2d 481, 482 (Fla. 1 st DCA 1991);

4083see a/so Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67, 68

4100(Fla. 3d DCA 1983).

4104The Southwest Florida Water Management District Basis of Review (the "BOR")

4116also provides that local land use criteria of the type alleged in the FINR Petition are not

4133ERP regulatory criteria. The BOR expressly states that, "[t]he proposed land use to be

4147served by a surface water management system for which an Environmental Resource

4159Permit is requested is not required to be consistent with the affected local government's

4173comprehensive plan and/or existing zoning for the site." See Joint Ex. 21 § 2.2.

4187likeWise, the reclamation rules governing CRP approval, at rule chapter 62G-16,

4198FAC., do not contain any criteria concerning mine setbacks or buffers, and do not

4212require the Department to consider local land use approvais in its decision-making. See

4225Fia. Admin. Code R. 62C-16.003; see also Fla. Admin. Code R. 62C-16.0041 and 62C­

423916.0051. Contrary to FINR's contentions, the Department cannot, by including a

4250statement in a permitting document, extend its permilling authority beyond what is

4262authorized by statute. Sea Sava the st. Johns River, 623 So. 2d at 1198.

4276Air impacts, noise, dust, odor, and airborne radioactivaparficlas.

4284Second, FINR's allegations regarding air impacts, noise,dust, odor, and alrbome

4295radioactive particles are likewise beyond the scope of the Department's permitting

4306criteria for ERPs and CRPs. See, e.g., Fla. Chapter of the Siarra Club, et al v.

4322Suwannee Am. Cement, Inc., et al., 2000 WL 1185499, at '16-17 (Fla. Dept. Env. Prot.

43372000); Royal Palm Beach Colony, L.P. v. South Fla. Water Mgmt. Dist., 21. F.A.L.R.

43513663, 3674 (DOAH 1999); In re Fla. Power & Light Co., Manatee Orimulsion Project, 21

4366F.A.L.R. 2569, 2587-88 (Siting Board 1998).

4372FINR argues that the public interest test makes these allegations relevant. See

4384Exceptions 1m 36-37. When applying the public interest factors, the Department is

4396limited to environmental impacts associated with the proposed activities in wetlands and

4408surface waters. See § 373.414(1 )(a), Fla. Stat. (2011); see also Save Anna Maria, Inc.

4423v. DepY of Transp., 700 So. 2d 113, 116 (Fla. 2d DCA 1997); Millerv. State, DepYof

4439Envtl. Reg., 504 So. 2d 1325, 1327 (Fla. 1st DCA 1987).

4450WRP and CRP Modifications.

4454Third, FINR asserts that since CF is modifying its current South Pasture mine

4467WRP and CRP to include the new ERP and CRP for the additional mine area, then its

4484substantial interests are automatically affected by the South Pasture mine proposed

4495agency actions. See Exceptions 1139. FINR's argument, however, does not provide a

4507basis to modify or reject the ALJ's factual finding in paragraph 90 of the RO that, "the

4524Petition contained no factual allegations relative to the compliance with applicable

4535regulatory requirements regarding, or potential for harm resulting from, the South

4546Pasture Modifications (as opposed to the ERP or CRP for the Project)." See, e.g., St.

4561Johns Riverkeeper, Inc. v. St. Johns River Water Mgm!. Dis!., 54 So. 3d 1051, 1054

4576(Fla. 5th DCA 2011). Therefore, the allegations relating to the South Pasture

4588Modifications were properly stricken. See Exceptions at Appendix A.

4597Due process.

4599FINR also argues that tt has been "effectively denied ... an administrative hearing

4612concerning the [South Pasture] WRP and CRP Modifications" and that its "statutory and

4625constitutional due process rights [have been] irreparably hanned." See Exceptions 1111

463621,26. It is well established that administrative agencies lack jurisdiction to consider

4649the alleged unconsmutionality at the actions of administrative officials. See, e.g., Hays v.

4662DepT of Business Regulation, 418 So.2d 331 (Fla. 3d DCA 1982); Harmon Brothers

4675Rock Co. v. DepT of Envtl. Regulation, 15 FAL.R. 2183, 2186 (Fla. DER 1993).

4689As to statutory due process, the record of this proceeding shows that issuance of

4703the South Pasture Modifications (challenged in Counts III and IV of the Petition) were

4717dependent upon issuance of the new ERP and CRP for the South Pasture Extension

4731(Counts I and II of the A full evidentiary hearing was held and a

4745recommended order was issued on all Counts. See Ruling on FINR's second exception

4758below. Although FINR further complains that much of Ceunts I and II were stricken, the

4773paragraphs that remained of those counts included a recitation of all the ERP and CRP

4788regulatory criteria. See Exceptions at Appendix A and FINR's Petition for Hearing at

4801pages 17 through 52. Thus, the record reflects that FiNR had a full and fair opportunity

4817to be heard on all of the relevant allegations related to its substantial interests that

4832reasonably could be affected by the ERP and CRP proposed agency actions. See

4845Exceptions at Appendix A.

4849Therefore, based on the foregoing reasons, FINR's first exception to the ALJ's

4861reaffirmation andlor incorporation by reference of the ALJ's February 16, 2012 Order, is

4874denied. FINR's request for a remand is also denied.

4883II. Exception to RO Paragraphs 90 and 97 (SPM WRP Modification and SPM CRP

4897Modification Exceptions).

4899FINR takes exception to the findings in paragraph 90 of the RO, where the ALJ

4914determined that the Petition failed to include "factual allegations relative to the

4926compliance with appiicable regulatory requirements regarding, or potential for harm

4936resulting from, the South Pasture Modifications" and that FINR failed to refute "[tJhe

4949prima facie case provided by CF and the Department at hearing of CF's entitlement to

4964the associated WRP and CRP Modifications for the South Pasture mine (South Pasture

4977Modifications)." (RO 90). FINR also takes exception to the ALJ's conciusion in

4989paragraph 97 that, "a preponderance of competent substantial evidence ... all support

5001the Department's determination of reasonable assurance of entitlement to the approvals

5012at issue." (RO 97).

5016First, FINR contends that Counts III and IV of the Petition regarding the South

5030Pasture WRP and CRP Modifications are in a "state of administrative limbo from which

5044[the Department] cannot legally extract them without overtuming the ALJ's February 16,

50562012 Order and remanding the matter back to DOAH for a further administrative

5069hearing." See Exceptions 45-47. FINR argues that the Department currently lacks

5080jurisdiction to "take action" on the South Pasture WRP and CRP Modifications because

5093the ALJ severed his own subject matter jurisdiction when he struck the Petition's

5106immaterial and irrelevant allegations in his February 16, 2012 Order, but did not enter a

5121separate order of dismissal within 30 days. See Exceptions 45-51.

5131FINR's confusing argument is based upon the premise that Sections

5141120.569(2)(p) and 378.205(3), F.S., required that the ALJ issue his RO as to Counts III

5156and IV within 30 days from the February 16, 2012 Order. See Exceptions \f.

5170Contrary to FINR's argument, it is Section 120.574(2)(1), F.S. - not Sections

5182120.569(2)(p) or 378.205(3), F.S. - that requires the ALJ to render his decision ''within

519630 days after the conclusion of the final hearing or the filing of the transcript thereof,

5212whichever is later." § 120.574(2)(1), Fla. Stat.(2011). The RO in this case complied

5225with that requirement. FINR did not cite any authority that the ALJ from

5238entering a single RO withhis recommendation to the Department regarding all four

5250approvals challenged by the Petition (two of which he can rule upon because there are

5265no longer valid challenges against them and two of which he can rule upon because a

5281full evidentiary hearing was held on the cognizable challenges). In fact, the ALJ is

5295reqUired to provide the agency with all "information required by law to be contained In

5310the final order." See § 120.57(1 )(k), Fla. Stat. (2011)( ''The presiding officer shall

5324complete and to the agency and all parties a recommended order consisting of

5337findings of fact, conclusions of law, and recommended or penalty, if

5348applicable, and any other information required by law to be contained in the final

5362order.").

5364In addition, FINR asserts that, "overtuming the ALJ's February 16, 2012 Order

5376and remanding the matter back to DOAH for a further administrative hearing" is

5389necessary to solve the alleged "administrative limbo" problem. See Exceptions \g. A

5401remand, however, would not resolve any alleged problem with respect to the South

5414Pasture WRP and CRP Modifications. As noted above, the South Pasture WRP and

5427CRP Modifications (Counts III and IV) were entirely dependent upon issuance of the

5440new ERP and CRP (Counts I and II), and FINR had a full and fair opportunity to be

5458heard on the material and relevant allegations contained in those counts. A new

5471hearing on remand regarding Counts III and IV would not yield new factual information

5485regarding potential impacts to FINR. ThUS, a remand is not necessary. See infra ­

5499Conclusion.

5500Second, FINR takes exception to RO paragraphs gO and 97 because the ALJ

"5513erroneously conclude[d] that CF successfully proved a prima facie case in support of

5526the [South Pasture WRP and CRP Modifications] by introducing into evidence its permit

5539applications and the [Department's] proposed agency actions." See Exceptions 1153;

5549see also T. 67-70 (indicating that Joint Exhibits 16-19 were received into evidence at

5563hearing by the ALJ, notwithstanding Petitioner's objections based upon relevancy). In

5574support of this claim, FINR argues that the ALJ's February 16, 2012 Order "prohibited

5588all evidence related to FINR's stricken allegations regarding the [South Pasture WRP

5600and CRP Modifications]; not just evidence tendered by FINR." See Exceptions 1153.

5612As described above, it is well established that procedural and evidentiary rulings are

5625mailers within the ALJ's substantive jurisdiction and may not be reversed on agency

5638review. See, e.g., Barfield v. DepY of Health, 805 SO.2d 1008, 1011-12 (Fla. 1st DCA

56532001); Marluccio v. DepY of Prof! Regulation, 622 SO.2d 607, 609 (Fla. 1st DCA 1993).

5668Therefore, based on the foregoing reasons, FINR's exception to RO paragraphs

567990 and 97 is denied, FINR's remand request is also denied.

5690III. Exception to RO Paragraphs 84 and 86 (BOR 2.8 Exception).

5701FINR takes excepUon to the findings in paragraphs 84 and 86 of the RO, where

5716the ALJ construed both expert testimony" and Section 2.8 of the BOR to determine that

5731CF did not need to submit a separate document titled "Construction Surface Water

5744Management Plan." See ExceptionsW 57-67.

5749FINR contends in this exception that the ALJ found "as a matter of law that CF

5765does not have to provide reasonable assurance of compliance with BOR 2.8" See

5778Exceptions 1l59. Contrary to FINR's contention, the ALJ found that the evidence

5790presented by CF demonstrated reasonable assurance of compliance with Section 2.8 of

5802the BOR. (RO 1l84). The ALJ rejected FINR's argument that CF's applications should

5815be denied because CF failed to submIT at hearing a separate document entitled

"5828Construction Surface Water Management Plan. (RO 1l84). The ALJ recognized that

5839although CF did not submit a separate document entitled "Construction Surface Water

5851Management Pian," the primary goal of the BOR criteria is to meet water resource

5865objectives, and to that end the criteria were designed to be flexible. See RO 1l86; see

5881also Joint Ex. 21, BOR §§ 1.1, 1.3. The BOR provides:

58923 Paragraph 84, reiying on the ALJ's discussion of expert testimony in paragraph 64,

5906opens by stating: "For the reasons expressed in Finding of Fact 64, a contention by

5921Petitioner that the SPE mine application must be denied because CF failed to submit at

5936hearing a separate document entitied 'Construction Surface Water Management Plan' is

5947rejected."

59481.1 Objectives - Under Part IV of Chapter 373. Florida

5958Statutes (F.S.) and Chapters 40D-4. 40, and 400. Florida

5967Administrative Code (FAC.), the [Department] is

5973responsible for permitting construction and operation of

5980surface water management systems within its jurisdictional

5987boundaries. The objective of this document is to identify the

5997usual procedures and information used by the [Department]

6005staff in permit application review. The objective of the review

6015Is to ensure that the permit will authorize activities or

6025situations which are not harmful to the water resources of

6035the District or inconsistent with the public interest.

6043•••

60441.3 Criteria Flexibility - The primary goal of the review

6054criteria is to meet District water resource objectives.

6062However, the criteria are designed to be flexible.

6070Performance criteria are used where possible. Other

6077methods of meeting overall objectives will be considered

6085depending on the of specific or cumulative

6092impacts. (Emphasis added.)

6095The ALJ's reading of the BaR's plain language is reasonable and is adopted in this

6110Finai Order. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police

6122Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79 v.

6136Daniels, 646 SO.2d 813, 816 (Fla. 1st DCA 1994).

6145Based on the competent substantial evidence adduced at the hearing, the ALJ

6157properly concluded that CF provided reasonable assurances that the Project will comply

6169Section 2.8 of the BaR. Expert witnesses for CF and the Department, testified that

6183based upon their reviews of the entire application and the documents prepared and

6196submitted in support of the application, CF demonstrated reasonable assurance that all

6208stormwater discharges would satisfy state water quality standards. (RO mI 61, 62,64;

6221Wuitschick alT. 187-190; Joint Ex. 8B, #96; CF Ex. 17; Durbin alT. 274-277; Owete at

6236T. 324; Rivera alT. 370-371, 381-382).

6242Therefore, since the ALJ's determinations in paragraphs 84 and 86 are

6253supported by competent substantiai record evidence and correctly appiy the BaR's

6264plain language, FINR's exception is denied. FINR's request to remand this case back to

6278DOAH to correct the ALJ's alleged "misinterpretation of BaR 2.8," is also denied. See

6292Exceptions 1175.

6294IV. Exception to RO Paragraph 64 (Water Quality Exception).

6303FINR takes exception to paragraph 64 of the RO, on the basis that the generic

6318stormwater permit reference in Section 2.8.2(b) of the BaR ("Generic Permit for

6331Stormwater Discharge from Construction Activities that Disturb Five or More Acres of

6343Land" (effective October 22,2000)) applies to CF; and that CF's SPPP failed to satisfy

6358certain requirements contained in the generic stormwater permit concerning "the

6368generation of dusr and "local waste disposal, sanitary sewer or septic tank regulations."

6381See Excepfions, 11 80.

6385The competent substantial record evidence established that CF is required to

6396have (and does have) an individual NPDES permit for its mining operations. (T. 49-50,

6410117, 187-188,274-275); see also FINR Ex. 52, at 2 (indicating that "[t]he following

6424stormwater discharges from construction are not authorized by this permit: ...

6435stormwater discharges associated with construction activity that are subject to an

6446existing generic or individual that are issued pursuant to Section 403.0885,

6457F.S."); Fla. Admin. Code R. 62-621.100 (indicating that authorization under a generic

6470permit is "[a]s an alternative to individual permits"); Fla. Admin. Code R. 62-620.100

6484(indicating, in the ruie authorizing individual NPDES permits, that "[w]here there are

6496conflicts with other existing specific or general rules of the Department, the

6508requirements and procedures set forth in this chapter shail supersede ail other

6520procedures and requirements for wastewater facilities or activities").

6529Therefore. based on the foregoingreasons and the ruling on FINR's third

6540exception above, this exception is denied. FINR's request to remand is also denied.

6553V. Exception to RO Paragraphs 50 and 58 (Dewatering Exception).

6563FINR takes exception paragraphs 50 and 58 of the RO, where the ALJ found that

6578the reroute ditch would not cause adverse water quantity impacts to Wetland 10E-40 on

6592FINR's property. FINR argues that CF's plans to armor the reroute ditch "bottom" and

6606instail an overland weir are not supported by competent substantial evidence in the

6619record. See Exceptions, mI 82-83.

6624First, FINR argues that "there is no competent substantial evidence that the

6636armoring of the reroute ditch bottom or the instailation [of an] overland weir in the

6651portion of the reroute ditch crossing Wetland 10E-40 is part of any plan submitted as

6666part of the SPEM ERP." See Exceptions 1183. FINR asserts, apparently based upon

6679Mr. Burleson's testimony alone, that the "uncontroverted evidence indicates the

6689overland weir is not part of the [Troublesome Creek Reroute Ditch Modeling and

6702Conceptual Design Report ("RDMR")] and the RMDR only discusses the armoring of

6716sides, but not the bollom of the reroute ditch as tt traverses Wetland 10E-40: 'd. FINR

6732also asserts that "[t]he overland weir was only mentioned in the RDMR Errata Sheet in

6747describing the corrected modeling conducted by CF in support of the RDMR." 'd.

6760As to FINR's argument that there is no competent substantial evidence in the

6773record regarding armoring the reroute ditch "bollom," FINR has apparently misread the

6785ALJ's findings in paragraph 50. See Exceptions '1182. The entire finding of fact states

6799that:

6800CF assessed the potential that the reroute dttch could result

6810in dewatering during non-fiood events. To address this

6818concem, CF designed the reroute ditch with a bollom

6827elevation that would match the bollom elevation of the

6836existing ditch, meaning the water table will intersect the

6845reroute ditch in the same manner tt currently intersects the

6855Troublesome Creek dttch. Adjacent to Wetland 10E-40 in

6863the southeast corner between Petitioner's property and the

6871Project property, however, the reroute dttch received special

6879design consideration because the reroute ditch bollom will

6887be below the bollom of the wetiand at that location. There,

6898the reroute ditch will be armored, an overland weir will

6908regulate fiow, and an impermeable geotextile liner will be

6917instalied.

6918See RO '1150 (emphases added). A plain reading of the entire finding of fact reveals

6933that the ALJ generally found that "the reroute dttch will be armored: not that the reroute

6949ditch "bollom" will be armored. 'd. Competent substantial record evidence supports the

6961ALJ's actual finding of fact. (T. 134,241-243; Joint Ex. 8B, #105, § 1.0, at 3).

6977Second, as to FINR's assertion that the "uncontroverted evidence indicates the

6988overland weir is not part of the RDMR," FINR seems to ignore the follOWing language in

7004the RDMR:

7006An overland weir (S-3) (Figure TC4) will be constructed on

7016the eastern edge of marsh bisected by theproperty line to

7026allow flow to exit the marsh and spill over into the reroute

7038ditch. This is necessary because the existing grade at that

7048location is higher than the bottom by about three feet. ...

7059See Joint Ex. 8B, #105, § 1.0, at 3. CF's experts, Mr. Blitch and Mr. Beriswill, also

7076testified at the hearing regarding the need for this overland weir, which was also

7090referenced in the RDMR Errata Sheet as noted by FINR. (T. 134, 241-243; Joint Ex.

71058B, #106).

7107Therefore, since the ALJ's findings in paragraphs 50 and 58 that the reroute ditch

7121would not cause adverse water quantity impacts to Weiland 10E-40 on FINR's property

7134aresupported by competent substantial record evidence, this exception is denied.

7144VI. Exception to RO Paragraph 48 (Lettis Creek Exception).

7153FINR takes exception to paragraph 48 of the RO, where the ALJ rejected Mr.

7167Burleson's modeling regarding alleged flooding at Lettis Creek. FINR argues that the

7179ALJ's rejection was "on the basis the modeling assumed the County-maintained culverts

7191would be closed," even though FINR contends that there is no competent substantial

7204evidence to support that finding. See Exceptions 1184.

7212FINR appears to mischaracterize the ALJ's finding of fact in paragraph 48. The

7225ALJ did not reject Mr. Burleson's modeling regarding alleged flooding at Lettis Creek 'on

7239the basis the modeling assumed the County-maintained culverts would be closed" (see

7251Exceptions 1184), but because "Mr. Burleson's modeling assumed that County-

7261maintained culverts between the properties would be blocked during mining." RO '1148

7273(emphasis added).

7275Mr. Burleson testified that his modeling assumed that "[t]he outfall from FINR

7287across County Road 663 and the railroad track would be blocked by the ditch and berm

7303system." See T. 492 (emphasis added). Further, when asked to describe the modeling

7316he performed to assess the potential for off-site flooding in the Lettis Branch Basin

7330during mining, Mr. Burleson indicated that he "cut[ ] off that outfall over by County Road

7346663 to where no flow could exit from FINR[,j" because his modeling was intended to

7362evaluate existing and during-mining conditions "if the outfall was blocked, what would be

7375the effect." See T. 493 (emphasis added). Thus, competent substantial record

7386evidence supports the ALJ's finding. In addition, competent substantial record evidence

7397establishes that CF is in fact "committed to maintaining the hydrologic connection

7409through culverts at County Road 663 and Lettis Creek during mining" (T. 716). Mr.

7423Burleson's modeling assumption that flow wouid be blocked was not credited by the

7436ALJ. Therefore, based on the foregoing reasons, this exception is denied.

7447VII. Exception to RO Paragraph 89 (Reclamation Criteria Exception).

7456FINR takes exception to paragraph 89 of the RO, where the ALJ found that "[n]o

7471evidence concerning the reclamation criteria was presented by Petitioner." See

7481Exceptions '11'1185-87. FINR contends that paragraph 89 is not supported by competent

7493substantial evidence. See id.

7497FINR asserts that the testimony of Mr. Burleson and other evidence in support of

7511its allegations that the SPPP did not "provide reasonable assurance that water quality

7524standards would be met during construction," and that CF did not '1ake all reasonable

7538steps to eliminate the risk of fiooding on FINR's property caused by damming of the

7553Troublesome Creek stream channel and Lellis Creek with the ditch and berm system;"

7566constitutes the evidence conceming the reclamation criteria in Rule 62C-16.0051,

7576FAC. (the "Reclamation Rule"). See Exceptions m 85-87 (emphases added). This

7588eVidence, however, addressed mining and during mining activities, not the reclamation

7599standards.

7600Applicable law clearly distinguishes "reclamation" activities from mining

7608operations. means "the reshaping of lands in a manner that meets the

7620reclamation criteria and standards contained in this part." § 378.203(9), Fla. Stat.

7632(2011). Those standards are contained in Rule 62C-16.0051, FAC. By contrast,

7643mining operations are '1hose physical activities, other than prospecting and site

7654preparation, which are necessarv for extraction, waste disposal, storage, or dam

7665maintenance prior to abandonment." § 378.203(6), Fla. Stat. (2011 )(emphasis added).

7676The Reclamation Rule govems reclamation not mining operations. See §

7686378.207(1 )-(2), Fla. Stat. (2011 )(refiecting lhatthe Department is only authorized to

7698adopt rules containing "statewide criteria and standards for reclamation," which "shall

7709govem performance of reclamation and not ... the manner in which mining and

7722associated activities are conducted.") (Emphases added); see also § 378.205(1 lId), Fla.

7735Stat. (2011 )(also authorizing the Department to adopt rules implementing the provisions

7747of Chapter 378, Part II, F.S.).

7753Therefore, since the AU property found that "[n]o evidence conceming the

7764reclamation was presented by Petitioner,". this exception is denied.

7774VIII. Exception to RO Paragraph 29 (Envfronmental Impact Exception).

7783FINR takes exception to paragraph 29 of the RO, where the ALJ found that FINR

7798was "permitted to pursue its water resource and environmental impact issues and

7810express[ ] its concems regarding the Project's impact on Pemione(s property and

7822development potential as weil as on the health, safety, and welfare of residents or

7836inhabitants of Petitioners property." See Exceptions 1188. FINR contends that the

7847February 16, 2012 Order prevented it from pursuing its claims related to "environmental

7860impacts such as dust,noise, air poilution, and airbome radioactive particles" and

7872prohibited the parties from introducing evidence related to those issues, and therefore

7884the AU's finding is not based upon competent substantial evidence. {d.

7895For the reasons discussed in the ruling on FINR's first exception above, the AU

7909properly struck FINR's immaterial ailegations conceming dust, noise, air pollution, and

7920airborne radioactive particles, and property prohibited the introduction of evidence

7930conceming same. FINR was permitted to pursue ail of relevant claims, including

7942claims relating to ail the ERP and CRP criteria. Therefore, for the reasons discussed in

7957the ruling in FINR's first exception above, this exception to paragraph 88 is denied.

7971RULING ON PETITIONER'S REQUEST FOR REMAND

7977The Florida courts have held that there are some circumstances under which

7989agency remand to DOAH is not only appropriate, but is actually "dictated." See, e.g.,

8003Miller v. DepY of Envtl. Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987); Cohn v.

8019DepY of Envtl. Regulation, 477 So.2d 1039, 1047 (Fla. 3d DCA1985). The subject

8032proceeding does not constitute one of those circumstances where remand to DOAH is

8045dictated. The ALJ fulfilled his role as to factual findings and the Department is able to

8061enter a coherent final order. Cohn, 477 So.2d at 1047.

8071The AU recommended that the Department enter a final order granting CF's

8083applications for the Project ERP and CRP, and the South Pasture mine WRP and CRP

8098Modifications. He Ultimately determined that CF established its entitlement to the

8109requested approvals by a preponderance of the evidence in the administrative hearing,

8121and that FINR failed to meet its burden of showing that the permits and approvals

8136should not be issued. (RO 1M196 and 97). This Final Order adopts the AU's

8150recommendation and denies FINR's remand request.

8156CONCLUSION

8157Having considered the applicable law and standards of review in light of the

8170findings and conclusions set forth in the RO, and being otherwise duly advised,

8183It is therefore ORDERED:

8187A. The AU's Recommended Order (Exhibit A) is adopted and incorporated by

8199reference herein.

8201B. Petitioner FINR II, Inc.'s request for remand to DOAH is denied.

8213C. Respondent CF Industries, Inc.'s application for Environmental Resource

8222Permit No. 0294666-001 is granted.

8227D. Respondent CF Industries, Inc.'s Conceptual Reclamation Plan Application

8236No. 0294666-002 is approved.

8240E. Respondent CF Industries, Inc.'s application for Wetland Resource Permit

8250Modification No. 0151551-017 is granted.

8255F. Respondent CF Industries, Inc.'s Conceptual Reclamation Plan Modification

8264No. 0151551-818 is approved.

8268JUDICIAL REVIEW

8270Any party to this proceeding has the right to seek judicial review of the Final

8285Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal

8300pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk

8314of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

8326M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy olthe Notice of Appeal

8340accompanied by the applicable filing fees with the appropriate District Court of Appeal.

8353The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

8371with the clerk of the Department.

8377DONE AND ORDERED this day of June, 2012, in Tallahassee, Florida.

8388STATE OF FLORIDA DEPARTMENT

8392OF ENVIRONMENTAL PROTECTION

8395JR.

8396Marjory Stoneman Douglas Building

84003900 Commonwealth Boulevard

8403Tallahassee, Florida 32399-3000

8406FILED ON THIS DATE PURSUANT TO § 120.52,

8414FLORIDA STATUTES, WITH THE DESIGNATED

8419DEPARTMENT CLERK. RECEIPT OF WHICH IS

8425HEREBY ACKNOWLEDGED.

8427tp·g·tz.

8428DATE

8429CERTIFICATE OF SERVICE

8432I CERTIFY that a copy of the foregoing Final Order has been sent by United

8447States Postal Service to:

8451Edward P. de la Parte, Jr. Frank E. Matthews, Esq.

8461de la Parte & Gilbert, P.A. Hopping Green & Sams, PA

8472PO Box 2350 PO Box 6526

8478Tampa, FL 33601-2350 Tallahassee, FL 32314-6526

8484by electronic filing to:

8488Division of Administrative Hearings

8492The DeSoto Building

84951230 Apalachee Parkway

8498Tallahassee, FL 32399-1550

8501and by handdelivery to:

8505Brynna R. Ross, Esquire

8509Department of Environmental Protection

85133900 Commonwealth Blvd., M.S. 35

8518Tallahassee, FL 32399-3000

8521this 51 day of June, 2012.

8527STATE OF FLORIDA DEPARTMENT

8531OF ENVIRONMENTAL PROTECTION

8534.... ,

8535FRANCINE M. S

8538Administrative Law Counsel

85413900 Commonwealth Blvd., M.S. 35

8546Tallahassee, FL 32399-3000

8549Telephone 850/245-2242

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Date
Proceedings
PDF:
Date: 08/08/2012
Proceedings: BY ORDER OF THE COURT: Respondents' joint motion to dismiss the amended petition for writ of prohibition and review of non-final agency action is granted. This case is dismissed filed.
PDF:
Date: 07/19/2012
Proceedings: BY ORDER OF THE COURT: Respondent's joint motion for leave to file supplemental answer briefs, filed June 28, 2012, is denied as moot filed.
PDF:
Date: 07/18/2012
Proceedings: FINR's Response in Opposition to Respondents' Joint Motion to Dismiss Petitioner's Amended Petition for Writ of Prohibition and/or Review of Non-Final Agency Order as Moot filed.
PDF:
Date: 07/10/2012
Proceedings: BY ORDER OF THE COURT: Respondent's motion for reconsideration, filed June 15, 2012 is granted filed.
PDF:
Date: 07/09/2012
Proceedings: Respondents' Joint Motion to Dismiss Petitioner's Amended Petition for Writ of Prohibition and/or Review of Non-final Agency Order as Moot filed.
PDF:
Date: 06/29/2012
Proceedings: FINR II, Inc.'s Response to Respondents' Joint Motion for Leave to File Supplemental Answer Briefs filed.
PDF:
Date: 06/28/2012
Proceedings: Respondent's Joint Motion for Leave to File Supplemental Answer Briefs filed.
PDF:
Date: 06/25/2012
Proceedings: FINR II, Inc.'s Supplemental Brief filed.
PDF:
Date: 06/25/2012
Proceedings: FINR II, Inc.'s Response to Respondents' Joint Motion for Reconsideration of Order Granting Leave to File Supplemental Brief filed.
PDF:
Date: 06/18/2012
Proceedings: BY ORDER OF THE COURT: FINR II, Inc., motion to stay agency proceedings pending outcome of petition for review of non-final agency action is denied filed.
PDF:
Date: 06/15/2012
Proceedings: BY ORDER OF THE COURT: Respondent CF Industries, Inc.'s unopposed third motion to supplement the appendix is granted filed.
PDF:
Date: 06/15/2012
Proceedings: Respondents' Joint Motion for Reconsideration of Order Granting FINR II, Inc.'s Motion for Leave to File Supplemental Brief filed.
PDF:
Date: 06/12/2012
Proceedings: FINR's Motion for Leave to File Supplemental Brief filed.
PDF:
Date: 06/11/2012
Proceedings: Third Supplement to Appendix to Respondent CF Industries, Inc.'s Response to Order to Show Cause and Response to FINR II Inc.'s Petition for Review of Non-final Agency Order filed.
PDF:
Date: 06/11/2012
Proceedings: Respondent CF Industries, Inc.'s Unopposed Third Motion to Supplement the Appendix to its Response to Order to Show Cause/Response to FINR II, Inc.'s Petition for Review of Non-final Agency Order filed.
PDF:
Date: 06/08/2012
Proceedings: Agency Final Order
PDF:
Date: 06/08/2012
Proceedings: Respondents CF Industries, Inc., and Department of Environmental Protection's Joint Response to Petitioner's Exceptions filed.
PDF:
Date: 06/08/2012
Proceedings: Appendix to FINR II, Inc.'s Exceptions to Recommended Order filed.
PDF:
Date: 06/08/2012
Proceedings: FINR II, Inc.'s Exceptions to Recommended Order filed.
PDF:
Date: 06/08/2012
Proceedings: Final Order filed.
PDF:
Date: 06/04/2012
Proceedings: BY ORDER OF THE COURT: Respondent CF Industries, Inc.'s unopposed second motion to supplement the appendix is granted filed.
PDF:
Date: 05/30/2012
Proceedings: Respondent CF Industries, Inc.?s Response to FINR II, Inc.?s Motion to Stay Agency Proceedings Pending Outcome of Petition for Review of Non-final Agency Action filed.
PDF:
Date: 05/30/2012
Proceedings: Second Supplement to Appendix to Respondent CF Industries, Inc.?s Response to Order to Show Cause and Response to FINR II, Inc.?s Petition for Review of Non-final Agency Order filed.
PDF:
Date: 05/30/2012
Proceedings: Respondent CF Industries, Inc.?s Unopposed Second Motion to Supplement the Appendix to its Response to Order to Show Cause/Response to FINR II, Inc.?s Petition for Review of Non-final Agency Order filed.
PDF:
Date: 05/23/2012
Proceedings: BY ORDER OF THE COURT: Petitioner's unopposed motion to supplement appendix to reply to Respondent's responses to order to show cause is granted filed.
PDF:
Date: 05/23/2012
Proceedings: FINR II, Inc.'s Motion to Stay Agency Proceedings Pending Outcome of Petition for Review of Non-final Agency Action filed.
PDF:
Date: 05/17/2012
Proceedings: Supplement to Appendix to FINR II, Inc.'s Reply to Respondents' Responses to Order to Show Cause filed.
PDF:
Date: 05/17/2012
Proceedings: Petitioner's Unopposed Motion to Supplement Appendix to Rely to Respondents' Responses to Order to Show Cause filed.
PDF:
Date: 05/15/2012
Proceedings: BY ORDER OF THE COURT: Respondent CF Industries, Inc's unopposed motion to supplement the appendix to its response to order to show cause is granted filed.
PDF:
Date: 05/10/2012
Proceedings: Supplement to Appendix to Respondent CF Industries, Inc.'s Response to Order to Show Cause/Response and Response to to FINR II, Inc.'s Petition for Review of Non-final Agency Order filed.
PDF:
Date: 05/10/2012
Proceedings: Respondent CF Industries, Inc., Unopposed Motion to Supplement the Appendix to its Response to Order to Show Cause/Response to FINR II, Inc's Petition for Review of Non-final Agency Order filed.
PDF:
Date: 05/10/2012
Proceedings: Notice of Substitution of Counsel for Respondent CF Industries, Inc., filed.
PDF:
Date: 04/30/2012
Proceedings: Recommended Order
PDF:
Date: 04/30/2012
Proceedings: Appendix to FINR II, Inc.'s Reply to Respondents' Responses to Order to Show Cause filed.
PDF:
Date: 04/30/2012
Proceedings: FINR II, Inc.'s Reply to Respondents' Responses to Order to Show Cause filed.
PDF:
Date: 04/30/2012
Proceedings: Recommended Order (hearing held March 26-28, 2012). CASE CLOSED.
PDF:
Date: 04/30/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/12/2012
Proceedings: Notice of Filing Respondents' Joint Proposed Recommended Order filed.
Date: 04/12/2012
Proceedings: Letter to DOAH from M. Kittrell enclosing supplemental pages of volume I of transcript filed.
PDF:
Date: 04/12/2012
Proceedings: FINR II, Inc.'s Proposed Recommended Order filed.
PDF:
Date: 04/11/2012
Proceedings: Notice of Filing Rule 62C-16 filed.
PDF:
Date: 04/10/2012
Proceedings: Appendix to the Department of Environmental Protection's Response to FINR II Inc.'s Petition for Review of Non-Final Agency Order filed.
PDF:
Date: 04/10/2012
Proceedings: Response of Florida Department of Environmental Protection to FINR II Inc.'s Petition for Review of Non-Final Agency Order filed.
PDF:
Date: 04/10/2012
Proceedings: Appendix to Respondent CF Industries, Inc.'s Response to FINR II Inc.'s Petition for Review of Non-final Agency Order filed.
PDF:
Date: 04/10/2012
Proceedings: CF Industries, Inc.'s Response to Order to Show Cause filed.
PDF:
Date: 04/10/2012
Proceedings: Notice of Appearance for Respondent CF Industries, Inc filed.
PDF:
Date: 04/10/2012
Proceedings: Order (granting CF Industries, Inc. unopposed request to correct the administrative record).
PDF:
Date: 04/09/2012
Proceedings: CF Industries, Inc.'s Unopposed Request to Correct the Administrative Record filed.
PDF:
Date: 04/04/2012
Proceedings: Amended Appendix to FINR II, Inc.'s Petition for Writ of Prohibition and/or Review of Non-Final Agency Order filed.
PDF:
Date: 04/03/2012
Proceedings: FINR II, Inc.'s Amended Petition for Writ of Prohibition and/or Review of Non-final Agency Order filed.
PDF:
Date: 04/03/2012
Proceedings: BY ORDER OF THE COURT: The Motion to Amend is granted, Petition shall file the entire amended petition and appendix on or before April 16, 2012 filed.
Date: 03/29/2012
Proceedings: Transcript of Proceedings I-VI (not available for viewing) filed.
PDF:
Date: 03/28/2012
Proceedings: FINR's Proffer of Evidence Concerning Stricken Portions of its Petition filed.
Date: 03/26/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/23/2012
Proceedings: FINR, Inc.'s Objections to CF and DEP's (Proposed) Final Exhibit Lists filed.
PDF:
Date: 03/23/2012
Proceedings: Respondents' Joint Supplemental Filing to Pre-hearing Stipulation Listing Objections to FINR (Proposed) Exhibit List filed.
PDF:
Date: 03/22/2012
Proceedings: FINR II, Inc.'s Corrected (Proposed) Final Exhibit List filed.
PDF:
Date: 03/22/2012
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 03/21/2012
Proceedings: FINR II, Inc.'s Final (Proposed) Exhibit List filed.
PDF:
Date: 03/16/2012
Proceedings: Respondent Department of Environmental Protection's Notice of Revisions to Draft Environmental Resource Permit filed.
PDF:
Date: 03/16/2012
Proceedings: FINR's Notice of Filing (Brennick and Matthews letters) filed.
PDF:
Date: 03/15/2012
Proceedings: Letter to Brynna J. Ross from Frank Matthews regarding Florida Institute for Neurologic Rehabilitation, Inc.,'s Letter to Mr. Jeff Littlejohn, P.E., dated March 12, 2012, filed.
PDF:
Date: 03/15/2012
Proceedings: BY ORDER OF THE COURT: respondent shall show cause why the petition for review of non-final agency action should not be granted.
PDF:
Date: 03/14/2012
Proceedings: Acknowledgment of New Case, First DCA Case No. 1D12-1308 filed.
PDF:
Date: 03/14/2012
Proceedings: Fourth Amended Notice of Taking Depositions Duces Tecum (of S. Freeley, J. Villalba, R. Burlerson, P. Davis, and J. Palmer) filed.
PDF:
Date: 03/13/2012
Proceedings: Petitioner's Notice of Correction to Certificates of Service (in First DCA Case 12-1308) filed.
PDF:
Date: 03/13/2012
Proceedings: Petitioner's Motion to Amend Appendix (in First DCA 12-1308 case) filed.
PDF:
Date: 03/12/2012
Proceedings: FINR II, Inc.'s Petition for Writ of Prohibition and/or Review of Non-Final Agency Order filed.
PDF:
Date: 03/12/2012
Proceedings: Appendix to FINR II, Inc.'s Petition for Writ of Prohibition and/or Review of Non-final Agency Order filed.
PDF:
Date: 03/05/2012
Proceedings: Third Amended Notice of Taking Depositions Duces Tecum (of S. Freeley, J. Villalba, R. Burlerson, P. Davis, and J. Palmer) filed.
PDF:
Date: 02/29/2012
Proceedings: Second Amended Notice of Taking Depositions Duces Tecum (of S. Freeley, J. Villalba, R. Burlerson, P. Davis, and J. Palmer) filed.
PDF:
Date: 02/28/2012
Proceedings: Amended Notice of Taking Depositions Duces Tecum (of S. Freeley, J. Villalba, R. Burlerson, P. Davis, and J. Palmer) filed.
PDF:
Date: 02/28/2012
Proceedings: FINR's Notice of Taking Deposition Duces Tecum of CF Witnesses filed.
PDF:
Date: 02/28/2012
Proceedings: FINR's Notice of Taking Expert Deposition Duces Tecum of Wilson, Rivera and Owete filed.
PDF:
Date: 02/24/2012
Proceedings: Notice of Appearance - Philpot for CF filed.
PDF:
Date: 02/24/2012
Proceedings: Notice of Appearance - Collazo for CF filed.
PDF:
Date: 02/24/2012
Proceedings: Notice of Taking Depositions Duces Tecum (of J. Brennick, R. Burleson, P. Davis, and J. Palmer) filed.
PDF:
Date: 02/16/2012
Proceedings: Order Granting Motion.
PDF:
Date: 02/13/2012
Proceedings: Notice and Certificate of Service of Respondent Department of Environmental Protection Response to First Set of Interrogatories to FINR's II, Inc. filed.
PDF:
Date: 02/13/2012
Proceedings: Department of Environmental Protection's Responses to Petitioner FINR's II, Inc. First Set of Production filed.
PDF:
Date: 02/13/2012
Proceedings: Respondent CF Industries, Inc.'s Notice of Serving Answers to FINR' First Set of Interrogatories to CF Industries, Inc filed.
PDF:
Date: 02/13/2012
Proceedings: Respondent CF Industries, Inc.'s Response to FINR's First Request for Production to CF Industries, Inc filed.
PDF:
Date: 02/13/2012
Proceedings: FINR's Response to CF's First Request for Production of Documents filed.
PDF:
Date: 02/13/2012
Proceedings: FINR's Notice of Serving Response to CF's First Set of Interrogatories filed.
PDF:
Date: 02/13/2012
Proceedings: FINR's Response to CF's First Requests for Admission filed.
PDF:
Date: 02/09/2012
Proceedings: FINR's Response to CF's Motion to Strike Portions of Petitioner's Petition and Motion in Limine Concerning Same filed.
PDF:
Date: 02/08/2012
Proceedings: Department of Environmental Protection's Response to CF Industries, Inc.'s Motion to Strike and Motion in Limine filed.
PDF:
Date: 02/02/2012
Proceedings: Respondent CF Industries, Inc.'s Motion to Strike Portions of Petitioner FINR II, Inc.'s Petition and Motion in LImine Concerning Same filed.
PDF:
Date: 01/27/2012
Proceedings: Respondent CF Industries, Inc., First Request for Production to Petitioner, FINR II, Inc filed.
PDF:
Date: 01/27/2012
Proceedings: Respondent CF Industries, Inc., First Requests for Admissions to Petitioner, FINR II, Inc filed.
PDF:
Date: 01/27/2012
Proceedings: Respondent CF Industries, Inc. Notice of Serving First Set of Interrogatories to Petitioner FINR II, Inc filed.
PDF:
Date: 01/27/2012
Proceedings: FINR's First Request for Production to CF Industries, Inc filed.
PDF:
Date: 01/27/2012
Proceedings: FINR's Notice of Serving First Set of Interrogatories to CF Industries, Inc filed.
PDF:
Date: 01/27/2012
Proceedings: FINR II Inc.'s First Request for Production to Department of Environmental Protection filed.
PDF:
Date: 01/27/2012
Proceedings: FINR's Notice of Serving First Set of Interrogatories to Department of Environmental Protection filed.
PDF:
Date: 01/23/2012
Proceedings: Order of Prehearing Instructions.
PDF:
Date: 01/19/2012
Proceedings: Respondents' Amended Unilateral Stipulated Discovery Schedule filed.
PDF:
Date: 01/18/2012
Proceedings: FINR's Corrected Proposed Discovery Schedule filed.
PDF:
Date: 01/18/2012
Proceedings: FINR's Proposed Discovery Schedule filed.
PDF:
Date: 01/18/2012
Proceedings: Respondents' Unilateral Stipulated Discovery Schedule filed.
PDF:
Date: 01/12/2012
Proceedings: Notice of Hearing (hearing set for March 26 through 30 and April 2 through 6, 2012; 9:30 a.m.; Tallahassee, FL).
Date: 01/12/2012
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 01/10/2012
Proceedings: Department of Environmental Protection's Response to Initial Order filed.
PDF:
Date: 01/10/2012
Proceedings: Order (on Petitioner's motion for reconsideration of ALJ's order granting request for summary hearing).
PDF:
Date: 01/09/2012
Proceedings: Department of Environmental Protection's Response to FINR's Motion for Reconsideration of ALJ's Order Granting Request for Summary Hearing filed.
PDF:
Date: 01/09/2012
Proceedings: FINR's Response to Initial Order filed.
PDF:
Date: 01/06/2012
Proceedings: CF Industries, Inc., Response in Opposition to FINR II, Inc.'s Motion for Reconsideration filed.
PDF:
Date: 01/05/2012
Proceedings: FINR II, Inc.'s Motion for Reconsideration of ALJ's Order Granting Request for Summary Hearing filed.
PDF:
Date: 01/04/2012
Proceedings: Order Granting Request.
PDF:
Date: 01/03/2012
Proceedings: Notice of Request for Summary Hearing filed.
PDF:
Date: 01/03/2012
Proceedings: Initial Order.
PDF:
Date: 12/29/2011
Proceedings: Notice of Intent to Issue an Environmental Resource Permit filed.
PDF:
Date: 12/29/2011
Proceedings: FINR II, Inc., Petition for Formal Administrative Hearing filed.
PDF:
Date: 12/29/2011
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
12/29/2011
Date Assignment:
01/03/2012
Last Docket Entry:
08/08/2012
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (12):

Related Florida Statute(s) (7):

Related Florida Rule(s) (4):