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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINR II, INC., )

)

Petitioner, )

)

vs. ) Case No. 11-6495

)

CF INDUSTRIES, INC., AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D. R. Alexander, on March 26-28, 2012,

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Edward P. De la Parte, Jr., Esquire

Kristin Y. Melton, Esquire

de la Parte & Gilbert, P.A.

Post Office Box 2350

Tampa, Florida 33601-2350

For Respondent: Frank E. Matthews, Esquire

(CF) Susan L. Stephens, Esquire

Miguel Collazo, III, Esquire

Thomas R. Philpot, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

For Respondent: Brynna J. Ross, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether CF Industries, Inc. (CF), has provided

reasonable assurance that its proposed mining and reclamation of

the South Pasture Extension (SPE) mine in Hardee County can be

conducted in a manner that complies with applicable statutes and

rules so that an Environmental Resource Permit (ERP), SPE

conceptual reclamation plan (CRP), South Pasture Wetland

Resource Permit (WRP) Modification, and South Pasture Conceptual

Reclamation Plan Modification should be issued by the Department

of Environmental Protection (Department).

PRELIMINARY STATEMENT

On November 21, 2011, the Department issued proposed agency

action approving an application by CF for the SPE ERP, SPE CRP,

South Pasture Wetland Resource Permit Modification, and South

Pasture Conceptual Reclamation Plan Modification. On

December 12, 2011, FINR II, Inc. (FINR or Petitioner), which

owns property adjacent to CF's property, timely filed a Petition

challenging the proposed agency action. The matter was referred

by the Department on December 29, 2011, to the Division of

Administrative Hearings (DOAH) to be set for hearing. On

January 3, 2012, CF filed a Notice of Request for Summary

Hearing pursuant to section 378.205(3), Florida Statutes. An

Order approving that request was issued on January 4, 2012, and

the matter was scheduled for final hearing on March 26-30, 2012,

in Tallahassee, Florida. On March 12, 2012, the Department

issued revised proposed agency action incorporating a new

modeling report prepared by CF which provides further support

for the Department's proposed action.

At the final hearing, FINR presented the testimony of

Steve Freeley, Vice-President; Nicolas Katzaras, General Manager

of CF; Phillip R. Davis, President of SDI Environmental, Inc.

(SDI), and accepted as an expert; John E. Palmer, a

hydrogeologist with SDI and accepted as an expert; Robert W.

Burelson, a professional engineer with Water & Air Research,

Inc., and accepted as an expert; and Dr. Jorge J. Villalba,

Chief Medical Officer and Director of FINR and accepted as an

expert. Also, it offered FINR Exhibits 1-9, 42-49, 52, 129

(pages 1-4 only), 130 (except pages 6-11), 131-135, 135A, 137-

147, 149-151, 151A, 152-156, 159, 162, and 164-166. All were

received except exhibit 52, upon which a ruling was reserved.

The objection to that exhibit is overruled. FINR also submitted

a written proffer on matters previously excluded by Order dated

February 16, 2012. That Order granted CF's Motion to Strike and

Motion in Limine. 1 CF presented the testimony of Gary Blitch,

Senior Environmental Affairs Specialist; Dr. Douglas J. Durbin,

Technical Director and Senior Principal/Manager of Cardno Entrix

and accepted as an expert; Dr. John Kiefer, a professional

engineer with AMEC Environmental and Infrastructure, Inc.

(AMEC), and accepted as an expert; Scott C. Wuitschick, a

professional engineer with AMEC and accepted as an expert; and

Jeffrey A. Beriswill, a professional engineer with AMEC and

accepted as an expert. Also, it offered CF Exhibits 4, 6, 7,

14-17, and 19 which were received in evidence. The Department

presented the testimony of Matt Wilson, an Environmental

Specialist II; Orlando E. Rivera, Program Administrator of the

Mandatory Phosphate Section and accepted as an expert; and

Dr. Owete S. Owete, Program Administrator-Technical Support

Section and accepted as an expert. Also, it offered Department

Exhibits 1 and 2, which were received in evidence. Finally, CF

and the Department jointly offered Joint Exhibits 1A, 1B, 2, 3,

4A, 4B, 5-7, 8A (Tabs 1-47, 49-53, and 55-79), 8B (Tabs 86-91,

93-98, 105, and 106), and 15-22, which were received in

evidence.

A Transcript of the hearing (six volumes) was filed on

March 29, 2012. Proposed Findings of Fact and Conclusions of

Law were filed by Petitioner and jointly by Respondents on

April 12, 2012, and they have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

A. The Parties

1. CF is a Delaware corporation authorized to do business

in the State of Florida and is the applicant in these

proceedings. CF has applied for permits to conduct phosphate

mining, reclamation, and associated activities on property in

Hardee County known as the South Pasture Extension tract. These

activities are referred to as the "Project," and the South

Pasture Extension tract property is referred to as the "Project

site."

2. The Department is a state agency with jurisdiction over

ERP permitting under Part IV, chapter 373, for phosphate mining

activities, and jurisdiction over phosphate mining reclamation

under Part II, chapter 378. Pursuant to that authority, the

Department reviewed the ERP, CRP, WRP Modification, and CRP

Modification applications for the Project.

3. Petitioner is a Florida corporation in good standing,

doing business in the State of Florida. Petitioner owns

approximately 875 acres of land east of County Road 663 and

immediately south of and adjacent to the Project site, which it

leases to two affiliated companies, Florida Institute of

Neurological Rehabilitation, Inc. (FINR I, Inc.) and FINR III,

LLC. FINR I, Inc., operates the Florida Institute of

Neurological Rehabilitation, which is a post-acute, state-

licensed inpatient rehabilitation facility accredited by the

Commission on Accreditation of Rehabilitation Facilities. It

specializes in the treatment of children and adults who have

sustained brain injury or some other form of neurologic trauma.

4. The facility currently consists of 238 beds offering

three levels of care and has approximately 135 to 140 inpatient

clients, of which 115 reside on the property. The property has

been used as a neurological rehabilitation center since 1986.

5. Among other things, patients participate in organized

and individual recreational activities on the property,

including fishing, nature walks, baseball, and basketball games.

Outdoor activities are critical to patient care, especially

those with frontal lobe damage.

6. The facility is only accessible by Vandolah Road (from

the south) and that roadway serves as its only evacuation route.

If the Project were to cause flooding on its property, as

Petitioner alleges, it could reasonably be expected to prevent

Petitioner from leasing its land to the related companies

because the facility's employees or outside medical personnel

could not enter the facility or evacuate the patients; it could

interfere with the generators or electrical components required

for patient care; it could deny the patients use of outdoor

areas; and it could impede FINR I, Inc.'s ability to develop and

expand facilities on the undeveloped part of the property.

B. General Background

7. Phosphorus is an essential element for plant and animal

nutrition and is one of the primary nutrients necessary for

plant growth. Phosphate rock is one, if not the only, known

significant source of phosphorus, and there are no synthetic

substitutes. Continued mining of phosphate rock is therefore

critical to the agriculture industry as well as to the general

population, both in the United States and globally. See

§ 378.202(1), Fla. Stat.("[t]he extraction of phosphate is

important to the continued economic well-being of the state and

to the needs of society").

8. CF has been mining in northwest Hardee County for

decades. CF first began mining for phosphate in 1978 at what

was then known as the North Pasture mine. Mining operations at

the North Pasture mine concluded in the mid 1990s, and the lands

associated with that mine have been completely reclaimed.

9. Pursuant to local, state, and federal permits, CF

relocated its beneficiation plant (which separates the phosphate

ore matrix into phosphate rock, waste clay, and sand) to its

present location south of State Road 62 in 1993, and began

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

mine encompasses about 15,390 acres.

10. After the startup of the South Pasture mine, CF

acquired three additional land parcels totaling approximately

7,512.8 acres with mineable reserves contiguous to and

immediately south of the South Pasture mine. These parcels are

collectively referred to as the South Pasture Extension tract or

the Project site. The Project site is bisected by County Road

663, which runs north and south through the Project site,

generally in a southeasterly direction. Immediately to the west

is Mosaic Fertilizer, LLC's (Mosaic's) permitted Ona Fort Green

Extension and to the south is Mosaic's Ona mine, for which

applications for mining approvals are currently pending

regulatory approval.

11. CF currently extracts phosphate rock at its South

Pasture mine at a rate of 3.6 million tons per year. If the

applications are approved, the Project will extend the life of

the current South Pasture mine and beneficiation plant by ten

years, permitting mining to continue at this same average rate

through 2035.

12. CF has an excellent record of compliance with respect

to permits issued under chapters 373 and 378. Petitioner has

raised no enforcement or compliance issues relative to CF's

operation of its mining activities.

13. In 1986, New Medico, Petitioner's predecessor in

interest, established the neurological rehabilitation center on

a 298-acre campus at the center of Petitioner's property and

began accepting patients that same year. Petitioner actually

acquired the Hardee County property in 1996, after mining

activities began on the South Pasture mine.

14. CF and Petitioner share a common boundary on three

sides. The historic headwaters of Troublesome Creek are located

within the Project site and along this common boundary, as well

as within Petitioner's property, and they have been heavily

ditched and degraded by agricultural activitiesoublesome

Creek itself (as opposed to its headwaters) begins on the

southeastern portion of the Project site, east of Petitioner's

property, and has been reduced to a narrow, fairly incised

conveyance flowing intermittently south-southeast to the Peace

River.

15. Since 1995, when CF began mining operations at its

South Pasture mine, and until the present time when Petitioner

filed its Petition challenging CF's Project, the parties'

respective operations have co-existed and are currently

approximately a half mile apart.

C. Project Logistics

16. Over the last five years CF has relied upon a team of

experts from several different consulting firms and disciplines

to assist it with preparing and supporting its application.

17. CF will integrate materials handling on both the

existing South Pasture mine and the Project site. Specifically,

mining and reclamation operations at the Project site will

employ the same methods currently approved by the Department for

use at the South Pasture mine, and will utilize the existing

operational facilities and workforce.

18. The existing beneficiation plant at the South Pasture

mine will separate the phosphate ore matrix mined at the Project

site into phosphate rock, sand, and clay. Waste clays from the

Project will be disposed of within existing clay settling areas

(CSAs) at the South Pasture mine and new CSAs proposed for the

Project site. The Project's mine water recirculation system

will also be integrated with the South Pasture mine's

recirculation system.

19. As it has done at the South Pasture mine, which is

located only one-half mile north of Petitioner's property, CF

must install a perimeter ditch and berm system (which includes a

recharge ditch system) along the Project site's boundaries prior

to any clearing to contain Project water within the CF site and

to protect adjacent properties during mining operations. The

ditch and berm system is installed approximately six months to

one year prior to the extraction of material within a particular

mine block.

20. Pursuant to Specific Condition 14 of the ERP, the

recharge ditch system, which serves to provide groundwater

recharge to preserved and off-site wetlands and surface waters

during mining to avoid potential adverse impacts, must be

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constructed before mining activities can occur within 1,800 feet

of any preserve or property boundary. The recharge ditch

systems in each mine block adjacent to such boundaries will be

designed based upon additional site-specific hydrogeologic

testing and analysis and installed prior to mining after the

Department has approved the final design.

21. Specific Condition 14 also requires development and

implementation of an Environmental Management Plan consistent

with the requirements of that condition and with Appendix 14 of

the ERP at least four years prior to mining of the Project site.

Pursuant to this condition, CF must also conduct detailed

baseline monitoring for at least four years prior to mining and

conduct continuous during-mining monitoring, visual inspections,

water table and stream flow analysis, and if necessary,

implement hydrologic mitigative or remedial measures, to ensure

that the recharge systems function as intended to protect

unmined wetlands and other surface waters from adverse impacts

by mining operations. These activities must continue until the

area within 1,800 feet of the preserve or property boundary is

backfilled and CF has documented that subsurface flows have

achieved conditions hydrologically equivalent to those described

in the Integrated Modeling Report (IMR) prepared for the

Project.

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22. CF's mine plan indicates the sequence of mining on the

Project site. Preparatory mining activities are scheduled to

begin in 2017, with actual mining scheduled to begin in 2019,

but are not scheduled to begin adjacent to Petitioner's property

until 2027, progressing along CF's shared property boundary with

Petitioner in a counterclockwise fashion, and west of County

Road 663 through 2031. Piezometer wells and rainfall gauges

must be installed along all preserves and property boundaries at

least four years prior to initiating mining of the Project site,

allowing for collection of an ample amount of baseline reference

data before mining begins adjacent to Petitioner's property.

23. As mining progresses within each mine block,

backfilling with sand tailings and initial revegetation will

follow mining almost immediately (three months) after mining,

including in the vicinity of Petitioner's property. As each

mine block is backfilled, within approximately three to five

years after mining, the entire area will be completely

backfilled, contoured, and revegetated. Within the same

approximate timeframe, once the entire area is stabilized and

following one year of water quality monitoring, the ditch and

berm system will be dismantled and the area reconnected to its

watershed.

24. CF has sufficient water available from multiple water

inputs, including very clean water from its Aquifer Recharge and

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Recovery Project (ARRP) on the South Pasture mine to support the

proposed mining and reclamation activities on the Project site.

25. CF will also construct a reroute ditch adjacent to

Petitioner's property. The purpose of the reroute ditch is to

reroute existing surface water flow in the Troublesome Creek

headwater ditches off of Petitioner's property, around active

mining operations, and then into Troublesome Creek as it exits

the Project site to the southeast. To specifically address

Petitioner's concerns regarding flooding, CF submitted

conceptual designs for a reroute ditch to the Department prior

to final hearing in this matter, and the Department modified its

ERP accordingly. Like the recharge system, the final design of

the reroute must be based on an additional site-specific

assessment conducted pursuant to the ERP, prior to actually

severing flow.

26. CF's South Pasture mine has two permitted National

Pollutant Discharge Elimination System (NPDES) outfalls located

on Shirttail Branch and Doe Branch, both of which flow into

Payne Creek, which is a tributary to the Peace River. While

these existing NPDES outfalls will continue to meet all of CF's

discharge needs for Project mining operations due to integration

of the mine recirculation system, CF may obtain additional

outfalls on the Project site to provide flexibility to

supplement stream flows during mining in preserved and off-site

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streams. One such potential discharge point was identified on

the northern boundary at Petitioner's property, as "S-1."

D. Petitioner's Allegations

27. Conflicting testimony was presented by the parties on

the issues raised by Petitioner. These conflicts have been

resolved in Respondents' favor, who submitted the more credible

and persuasive evidence. Where a specific allegation is not

addressed in this Recommended Order, it has been considered and

found to be without merit.

28. Petitioner alleges, on the one hand, that the Project

will either cause flooding on its property so as to adversely

impact its and its lessees' use and enjoyment of the property,

and, on the other, will cause dewatering of its property so as

to adversely affect its wetlands and other water resources.

29. While the undersigned did grant CF's Motion to Strike,

Petitioner was permitted to pursue its water resource and

environmental impact issues and expressed its concerns regarding

the Project's impact on Petitioner's property and development

potential as well as on the health, safety, and welfare of

residents or inhabitants of Petitioner's property. These

concerns were addressed by Steve Freeley, FINR II, Inc.'s former

director of marketing and now a Vice President, and Dr. Jorge

Villalba, FINR I, Inc.'s medical director.

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30. Mr. Freeley, a fact witness, summarized Petitioner's

concerns, as he understood them, to be the Project's potential

for flooding, dewatering, and well contamination on Petitioner's

property, particularly how these events might affect

Petitioner's pocketbook and the future development potential of

Petitioner's property. However, Mr. Freeley admitted that he

had no knowledge of the Project application or supporting

materials, had never been to the South Pasture mine, and had no

familiarity with phosphate mining.

31. Dr. Villalba testified primarily on behalf of FINR I,

Inc., patients at the rehabilitation facility, in particular his

concerns regarding his patients' specific sensitivity to

environmental stimuli. Dr. Villalba has no legal affiliation or

association with Petitioner, being solely an employee of, and

the medical director for, FINR I, Inc. Dr. Villalba also

testified regarding the need to internally relocate some

patients due to flooding caused by hurricanes in 2004. More

specifically, Dr. Villalba testified that in 2004 residential

cabins on-site experienced water levels rising up to the steps

of the elevated residential facilities. Like Mr. Freeley, he

admitted he had no knowledge of the application materials,

phosphate mining, CF's South Pasture mine operations, or the

materials submitted in support of the proposed agency action.

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32. For all of the following reasons, the adverse

environmental and water resource-related concerns of Petitioner

are determined to be without merit and are therefore not

credited.

E. Analysis of Hydrology

33. CF and the Department thoroughly investigated the

Project's potential for causing adverse flooding and dewatering

impacts on adjacent properties.

34. Event-based stormwater runoff modeling provided

reasonable assurance that peak discharge rates and outflow

volumes at exit points from the Project site under post-

reclamation conditions would not cause adverse offsite flood

impacts. The results of CF's flood modeling are summarized in a

flood modeling report (FMR). The FMR demonstrated that the

proposed post-reclamation land use, topography, and soil

distributions will not result in any adverse changes in the peak

discharge comparison to pre-mining conditions for flood flows;

peak flood values will be maintained or improved by the

reclamation design; and post-reclamation peak flood values along

Petitioner's shared property boundary with CF will be lower than

pre-mining conditions.

35. Three standard rainfall events were evaluated: (a) the

mean annual 2.33-year, 24-hour event, (b) the 25-year, 24-hour

event, and (c) the 100-year, 24-hour event. These storm events

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are part of a standard suite of engineering design storms that

the Department commonly relies upon to assess pre-mining versus

post-reclamation flooding. CF utilized a one-dimensional

surface water computer model, MIKE 11, to prepare the flood

modeling report. MIKE 11 uses the Natural Resources

Conservation Service's (formerly the United States Soil

Conservation Service's) TR-55 based approach and applies a

1-D hydraulics component that represents Florida landscape

conditions well. This modeling, and the resultant FMR, which is

a part of the application, were not contested. It demonstrated

that the proposed post-reclamation condition will not result in

any adverse flooding. In fact, local flood hazards will likely

be reduced due to the lowering of peak flood values.

36. CF also developed an integrated surface and

groundwater model for the Project. Integrated modeling assesses

long-term hydrologic conditions to ensure that the Project will

result in hydropatterns that restore and sustain reclaimed

wetlands and waterbodies on the Project site. The MIKE SHE

model was used to perform the hydrologic simulations; the

modeling results are contained in CF's IMR, as part of the

application. It was also used to establish the normal seasonal

high and seasonal low ranges for wetlands and surface waters

that were used in other portions of the application, such as the

Recharge Modeling Report (RMR). There was no objection to the

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use of this model or its results. The IMR indicates that the

proposed reclamation will restore on-site wetland functions,

promote the maturation of on-site wetlands, and result in an

overall water balance that maintains or improves regional

hydrology. Off-site stream flows to Troublesome Creek will be

enhanced, which will improve that system's capacity to support

aquatic fauna.

F. During-Mining Hydrologic Analysis

37. In addition to performing pre-mining and post-

reclamation condition hydrologic analyses, CF and the Department

evaluated the Project's potential for causing adverse flooding

and dewatering impacts on adjacent properties during mining.

The existence of several factors inherent to the mining process,

discussed below, typically makes during-mining flood event

modeling unnecessary to provide reasonable assurances. See Lee

Cnty. v. Mosaic Fertilizer, LLC , Case No. 08-3886, 2008 Fla. ENV

LEXIS 171 (Fla. DOAH Dec. 18, 2008), adopted , OGC Case No. 08-

1852, 2009 Fla. ENV LEXIS 14 (Fla. DEP Jan. 30, 2009).

38. The application contains during-mining water balance

analyses that specifically evaluated the biological integrity of

on-site and off-site preserved areas, streams, and wetlands

during mining and after reclamation. CF prepared a mine and

production plan (MPP) describing general mine planning and

scheduling, as well as its proposed integration with the South

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Pasture mine, that contained an operational during-mining water

balance showing recirculation system inputs and outflows. The

primary sources of water input into the mine recirculation

system for the Project will continue to be direct rainfall

capture, groundwater from existing permitted wells, water

content of the mined matrix and overburden, and reclaimed water

from the City of Wauchula. The primary sources of water

consumption will be evapotranspiration and net waste clay

entrainment; CF recycles and reuses 95 percent of its water. As

described in the MPP, the primary sources of water discharge

will be through its existing two (and possibly additional)

permitted NPDES outfalls.

39. There will be no substantial change in the during-

mining water balance as a result of the extension of mining into

the Project site. Moreover, the application, past practices and

experience, and evidence presented at hearing all indicate that

CF has more than sufficient amount of water available to conduct

the Project while simultaneously maintaining or improving the

biological integrity of downstream systems.

40. CF has the demonstrated ability to manage large

amounts of water within its mine recirculation system and store

or discharge water as required to maintain downstream flows or

reduce flooding potential. During mining, CF can either

discharge stormwater treated to meet state water quality

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standards, or store it in its recirculation system, depending on

downstream conditions. Thus, even without a reroute ditch, the

risk of adverse flooding during mining is minimal. CF has never

caused any flooding of neighboring property in over 30 years of

mining.

41. As noted earlier, upon construction of the perimeter

ditch and berm system along its shared property boundary with

Petitioner, CF will reroute existing water flow around active

mining operations and the berm system to reconnect flow with

Troublesome Creek.

42. CF's expert witness testified that, from an

engineering perspective, a reroute ditch is not difficult to

design or construct, and that CF has successfully constructed

similar reroutes in the past and without causing flooding.

Nevertheless, in light of Petitioner's concerns, CF directed its

consultants to model the potential impacts from a reroute ditch

to assist in sizing the reroute ditch and associated structures.

The design objective was to ensure that no off-site increases in

peak flows or stages would occur during mining as compared to

existing conditions as a result of the Project during high

rainfall events.

43. CF and Petitioner's consultants used the

Interconnected Pond Routing (ICPR) model to evaluate the reroute

ditch. CF analyzed the 25-year, 24-hour and the 100-year,

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24-hour storm events. The model indicated that in many areas,

where the presence or absence of a reroute ditch would not make

a significant difference, water levels would remain unchanged,

and that in some areas closest to the proposed reroute ditch,

potential flood levels would actually be decreased by two-tenths

of a foot. This would actually reduce the likelihood of

localized flooding during significant storms over existing

conditions, which has posed a concern to Dr. Villalba for his

patients' safety during prior hurricane events.

44. The modeling results were summarized in a Troublesome

Creek Reroute Ditch Modeling and Conceptual Design Report

(RDMR). Dr. John Kiefer, the co-author of the RDMR, as well as

Dr. Owete, a Department expert, opined that the Project,

including implementation of the proposed reroute ditch, would

not cause adverse flooding or water quantity impacts on

Petitioner's property during mining. Dr. Kiefer subsequently

identified and corrected some minor errors in the RDMR. These

changes had no effect on his ultimate opinion or this finding.

45. According to Dr. Owete, the modeling was not necessary

to provide the requisite reasonable assurances. In fact, the

reroute ditch design drawings themselves were not requested by

the Department to provide reasonable assurances, but were

offered by CF as additional assurances in light of the concerns

raised by Petitioner during these proceedings. This testimony

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was echoed by Dr. Kiefer, who testified regarding the various

intrinsic protections against during-mining flooding that are

inherent to the Project. Further, the record establishes that

the design and the model are very conservative. The 100-year

event, for which the reroute ditch was designed, has only a one

percent likelihood of occurring in any given year within a

100-year period.

46. The RDMR recommends that additional modeling be

conducted immediately prior to implementation to confirm the

design. The ERP specifically requires that the RDMR be

implemented. This is similar to conditions throughout the ERP

that require additional data gathering modeling or other

analysis and revised designs based on this additional analysis.

The ERP can provide for post-permit activities to be performed

as part of reasonable assurances. See Fla. Admin. Code R. 62-

4.070(3).

47. Petitioner's expert, Mr. Robert Burleson, opined that

the Project will cause flooding of Petitioner's property during

mining due to the construction of the perimeter berm. However,

Mr. Burleson used a starting water elevation on Petitioner's

property to run his model that was already commensurate with a

100-year flood elevation and then added a 100-year event to that

elevation. Mr. Burleson's model also assumed that no reroute

ditch would be constructed, and additionally assumed

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artificially high surface water conditions caused by the

recharge system which, conversely, Petitioner's expert,

Mr. Davis, opined would not prevent dewatering. Therefore,

his opinion on flooding is not credited.

48. Mr. Burleson also opined that flooding would

nonetheless occur because of the construction of the perimeter

berm across Lettis Creek headwater wetlands, notwithstanding the

fact that there is no "stream" at this location, the landscape

is relatively flat, and County Road 663 and the railroad line

would lie between Petitioner's property and the perimeter berm.

However, Mr. Burleson's modeling assumed that County-maintained

culverts between the properties would be blocked during mining.

Even under this assumed condition, his modeling showed only a

slight increase in stage durations during significant 25-year

and 100-year events. However, CF has committed to maintain flow

from Petitioner's property onto the Project site at Lettis Creek

through existing culverts under County Road 663.

49. Mr. Burleson also testified that in his view flooding

occurs "if there's an increase in water levels above what has

historically or naturally [occurred] for a given condition."

Tr. 522. However, Mr. Burleson did not know whether the FINR

property had ever been inundated in the way inundation was

depicted in the figures he provided and did not know whether the

inundation in the figures he provided could be a natural

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condition for the property. Thus, Mr. Burleson could not

testify, whether historically or naturally, the amount of water

depicted on his figures would occur. It was established that

the historic headwaters in this area have been heavily ditched

and altered from their historic or natural condition.

50. CF assessed the potential that the reroute ditch could

result in dewatering during non-flood events. To address this

concern, CF designed the reroute ditch with a bottom elevation

that would match the bottom elevation of the existing ditch,

meaning the water table will intersect the reroute ditch in the

same manner it currently intersects the Troublesome Creek ditch.

Adjacent to Wetland 10E-40 in the southeast corner between

Petitioner's property and the Project property, however, the

reroute ditch received special design consideration because the

reroute ditch bottom will be below the bottom of the wetland at

that location. There, the reroute ditch will be armored, an

overland weir will regulate flow, and an impermeable geotextile

liner will be installed.

51. Several intrinsic factors, relating to both the

reroute ditch design and the overall Project design, provide

further assurances that adverse flooding will not occur on

Petitioner's property during mining. Once CF constructs the

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

contributing flow to Petitioner's property will be reduced by

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approximately one-half, resulting in significantly less water

flowing onto Petitioner's property during flood events because

the ditch and berm system will divert stormwater that normally

reports to Troublesome Creek into CF's recirculation system.

The conveyance capacity of the reroute ditch will be equivalent

to or greater than that of the existing ditch that it would

replace. The reroute ditch will be installed in concert with

the ditch and berm system, which as noted above will reduce peak

flood flows in Troublesome Creek, meaning a lower tailwater

condition can be expected in Troublesome Creek downstream of its

confluence with the reroute ditch.

52. CF thoroughly assessed the ability of the recharge

ditch to maintain recharge to wetlands and adjacent properties

during active mining of the Project. Specifically, CF evaluated

the seepage characteristics of the areas scheduled to be mined

and provided site-specific recommendations regarding recharge

system design in variable subsurface conditions. CF evaluated

the efficacy of treatment options that might be necessary to

incorporate in the recharge ditch design in certain subsurface

conditions to prevent potential adverse impacts. The goal of

the recharge ditch design was to maintain the water table during

mining operations, within the normal range of seasonal high and

seasonal low water table elevations along preserve and property

boundaries, including Petitioner's property. The normal

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seasonal range used to develop the RMR was obtained from the IMR

analysis.

53. In order to appropriately evaluate subsurface

permeabilities at the Project site, CF's consultants first

engaged in a rigorous geotechnical exploration program: they

reviewed available prospect borings and design reports; they

developed subsurface profiles along wetland and property

boundaries within the study areas based on prospect boring data;

they completed four Standard Penetration Test borings at

locations selected based on the subsurface profiles; they

installed a deep, intermediate, and shallow piezometer at each

of the borehole locations; and they completed in-situ hydraulic

conductivity tests in each of them.

54. This information resulted in a detailed subsurface

profile that ran along the entire border of the mining areas and

identified a range of subsurface conditions site-wide, with both

low and high permeability values, consistent with regional data

and Petitioner's findings.

55. Next, CF's consultant developed 14 design sections,

including cross sections at each of the locations specifically

requested by the Department, two adjacent to Petitioner's

property, and conducted seepage analyses for each. For the two

design sections nearest to Petitioner's property, no continuous

layer of highly-permeable limestone or other high permeability

2 6

strata were encountered that were reasonably likely to affect

performance of the recharge ditch, and thus no particular "add

on" hydrologic mitigative measures to the recharge ditch appear

reasonably likely to be needed. Nonetheless, the efficacy of

those additional measures in higher permeability soils was fully

evaluated.

56. Results of the seepage analyses on the 14 design cross

sections are summarized in the RMR. The RMR concludes that, in

most mine areas, sufficient recharge will be provided to

preserved wetlands and adjacent properties during mining using a

recharge ditch designed as proposed in the RMR. Nine of the 14

cross sections did not have a continuous highly permeable

limestone layer, including the two near Petitioner's property;

and a recharge ditch with the water level maintained at ground

level was sufficient to maintain an adequate groundwater level

in off-site and preserved wetlands at these nine cross sections,

to the center of the wetland.

57. Only five of the 14 design cross sections contained a

continuous, permeable limestone layer within the matrix layer.

For areas where such high permeability layers do exist,

additional hydrologic mitigative measures were recommended in

addition to the recharge ditch, such as recharge wells,

permeable trenches, localized grouting, and soil-bentonite

cutoff walls, in order to maintain groundwater levels. In the

2 7

event a permeable limestone layer is encountered within the

matrix layer, the RMR concludes that the utilization of recharge

wells, sand trenches, or other treatment options will be

effective in maintaining the normal range of seasonal

groundwater levels. Pursuant to the RMR recommendations,

decisions regarding which specific mitigative measure is

appropriate to use to address a specific subsurface condition

will be made based upon more detailed, site-specific data and

design modifications determined through field investigations, to

include additional test borings, piezometers, field measurements

of hydraulic conductivities, and additional seepage analyses.

These additional measures are required by the ERP conditions and

the final design must be approved by the Department.

58. While the RMR did not assume the existence of a

reroute ditch, Mr. Beriswill, a professional engineer,

subsequently evaluated the potential impact of a reroute ditch

on the RMR's recommendations and conclusions. Based upon this

subsequent evaluation, Mr. Beriswill concluded that no

significant changes in the design of the recharge ditch were

necessary to account for the ditch, although he and other

consultants did agree that addition of an impermeable geotextile

liner to a portion of the reroute ditch would reduce the

potential for dewatering adjacent to Wetland 10E-40 and should

be implemented.

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59. The RMR also evaluated the stability of the mine cut

face seal embankment (construction of which is common in the

industry) and provided recommendations to maintain adequate and

stable slopes during mining activities. Based upon these

analyses, CF's consultants recommended a one-foot (vertical) to

five-foot (horizontal) (1:5) slope to ensure a 1.3 factor of

safety for slope stability, which is within industry standards.

G. Water Quality Impacts

60. In addition to the above analyses, CF and the

Department also thoroughly evaluated potential on-site and off-

site water quality issues associated with the Project.

61. As noted earlier, discharges will occur only through

permitted NPDES outfalls. Additional water quality protection

for adjacent undisturbed surface waters and wetlands will be

provided by the perimeter ditch and berm systems and other

proposed best management practices (BMPs), such as silt fences

and stormwater collection systems. During mining and

reclamation, these practices will preclude uncontrolled releases

of water to adjacent unmined and downstream areas. There are

also detailed requirements in the ERP for monitoring water

quality during mining and reclamation activities. All of these

measures will be effective in preventing violations of water

quality standards, and will ensure that the water quality of

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preserved on-site systems will be protected during mining

activities at the Project site.

62. A Stormwater Pollution Prevention Plan (SPPP) was

prepared to identify BMPs and controls for the Project during

land preparation, mining, backfilling, and reclamation. The

SPPP also incorporates by reference other documents already in

place on the South Pasture mine pursuant to CF's NPDES permit

for the South Pasture mine. Among these documents are a Best

Management Practices/Pollution/Prevention (BMP3) Plan that

generally describes BMPs for waste management, spill reporting

and response, and other specific measures to prevent pollution,

and a memorandum of agreement (MOA) between CF and the

Department that describes general design and construction BMPs.

The MOA has also been attached to the ERP. The BMP3 Plan, which

is updated annually, must be maintained on-site during mining

operations.

63. Using these measures at the South Pasture mine, CF has

never had any issues with stormwater discharges causing water

quality violations.

64. Petitioner failed to present any competent substantial

evidence that the Project will cause adverse water quality

impacts during mining. Its expert, Mr. Robert Burleson, opined

only that certain requirements specified for generic stormwater

permits associated with construction activities were missing

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from the SPPP. However, it is unclear whether he reviewed or

considered the sufficiency of the MOA or BMP3 Plan, and these

contain specific BMPs to be utilized for the Project's

stormwater. Additionally, Mr. Burleson admitted that he had no

familiarity with preparing SPPPs for industrial facilities with

NPDES permits. Dr. Durbin, a CF expert, who has such experience

and reviewed all of these materials as well as South Pasture

mine water quality data, opined that implementation of these

practices and the existence of the NPDES permit ensure that

water quality of downstream systems will be protected during

mining and that no adverse water quality impacts will occur.

The application is therefore consistent with applicable ERP

permitting requirements. The generic stormwater permit

proffered by Petitioner does not apply, and is not available, to

facilities like CF that are required to obtain individual NPDES

permits that address stormwater discharges. See Fla. Admin.

Code R. 62-620.100(2).

H. Ecological Issues

65. The level of detail and analysis provided by CF in its

application to the Department for the ERP, CRP, and WRP and CRP

Modifications is more than adequate. Indeed, CF provided

substantially more baseline information in terms of existing

site conditions, wetland conditions, and wildlife information

than is provided in typical ERPs.

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66. CF expert witnesses Dr. Kiefer and Dr. Durbin both

testified as to the local and regional ecological, hydrological,

and wildlife benefits expected to result from the proposed

reclamation. This testimony was not disputed.

67. Pursuant to section 373.414(6)(b), wetlands

reclamation activities for phosphate mining undertaken pursuant

to chapter 378 are considered appropriate mitigation if they

maintain or improve the water quality and the function of the

biological systems present at the site prior to the commencement

of mining activities. CF's reclamation achieves that mitigation

goal. It provides for an acre-for-acre, type-for-type, and

foot-for-foot restoration, as appropriate, of the wetlands and

other surface waters proposed for impact on the Project site.

The application indicates that the proposed reclamation will

restore on-site wetland functions and promote the maturation of

on-site wetlands. Specifically, CF is proposing to enhance

126 acres of wetlands and 57 acres of uplands, create

approximately 1,711 acres of wetlands and other surface waters,

and grant perpetual conservation easements to permanently

preserve 1,095 acres of unmined (avoided) and 1,789 acres of

reclaimed habitat, including wetlands, streams, and associated

native upland habitat in the Brushy Creek, Lettis Creek, and

Troublesome Creek corridors on the Project. In addition, CF

will grant a perpetual conservation easement to permanently

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preserve an additional 915 acres of unmined wetland and native

upland habitat associated with the Horse Creek and Payne Creek

corridors in the South Pasture mine.

68. Ultimately, the Project will represent a substantial

improvement in the Troublesome Creek headwater system, which has

been degraded by ditching. Based upon the uniform mitigation

assessment method analysis, the proposed mitigation plan will

more than offset proposed impacts, resulting in a net increase

in wetland functions on the Project site. While mining activity

is temporary, this "surplus" improvement will be permanent.

69. CF considered the potential impacts to off-site

wetlands from the Project both during mining and after

reclamation, particularly those wetlands that straddle CF's

shared property boundary with Petitioner. Wetlands on

Petitioner's property are similar to nearby wetlands on the

Project site, in that historically they have been impacted by

agricultural activities, including ditching.

70. None of Petitioner's experts provided testimony of

adverse impacts to wetlands or surface waters that would be

reasonably likely to occur as a result of the Project. In

contrast, Dr. Durbin testified that the wetlands on Petitioner's

property are degraded and dehydrated due to the prevalence of

agricultural alterations and that a modicum of additional water

might actually benefit them.

3 3

71. The application indicates that the proposed

reclamation will result in an overall water balance that is

consistent and compatible with the region's surface and sub-

surface hydrology, and the combined groundwater and surface

water outflow volumes from the Project site will be similar to

pre-mining conditions.

72. As noted earlier, the proposed recharge ditch system

will maintain off-site water table levels within the normal

range of seasonal high and seasonal low values, which is the

range of fluctuation the water table level currently experiences

pursuant to the IMR. Therefore, no dewatering will occur that

will have an adverse ecological effect on Petitioner's wetlands.

Dr. Durbin and Dr. Kiefer opined that the improvement in

ecological conditions post-reclamation on the Project site can

reasonably be expected to improve the ecological condition of

the immediately adjacent wetlands on Petitioner's property.

73. Petitioner's expert, Mr. Davis, opined that CF

failed to provide reasonable assurances that the Project would

not cause dewatering of wetlands on Petitioner's property. He

presented model results using those high permeabilities that

purported to show that, at some distance proximate to the

property boundary, some drawdown would occur with maximum

predicted drawdown approximately 80 feet or less from the

property boundary. However, Mr. Davis selected the high end of

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the range of the subsurface permeabilities estimated in the RMR

and assumed they were present continuously along the property

boundary. Although the highly permeable conditions are not

continuously present along the boundary line of Petitioner's

property, measures to address those conditions have been

identified and recommended, should they occur.

74. Moreover, Mr. Davis' modeling did not use the existing

conditions established in the IMR as a baseline and did not

evaluate any of the mitigative options recommended in the RMR

for use if high permeability layers are encountered. Rather,

his modeling looked at only two scenarios that were not

recommended in the RMR in such cases, namely, the recharge ditch

alone, and charging the recharge ditch five feet above ground

surface. He admitted that the options recommended in the RMR

for high permeability subsurface conditions were all widely-used

options capable of being implemented. Mr. Davis' assertions

regarding the potential for a half-foot of drawdown near the

property line are based on a series of assumptions and

conditions which are not supported by competent substantial

evidence. Therefore, his testimony does not rebut the prima

facie case of CF and the Department regarding reasonable

assurances and is not credited.

75. Mr. Palmer criticized the adequacy of the monitoring

contained in Specific Condition 14. However, he admitted that

3 5

monitoring of the proposed piezometers would detect any water

table changes, and the ERP requires comparison against the

baseline data as well as long-term rainfall records. He also

acknowledged that he reviewed only a portion of the condition.

Thus, Mr. Palmer's criticisms are not credited.

76. CF's reclamation also consists of a Stream Restoration

Plan (SRP). Implementation of the SRP will result in replacing

lower-functioning streams and lotic systems, like the ditched

headwaters of Troublesome Creek, with higher quality systems

post-mining pursuant to state reclamation requirements.

Dr. Kiefer opined that this is reasonably likely to result in

both localized and regional improvements to Troublesome Creek by

restoring its headwaters to a more natural condition. This

evidence was not refuted.

77. Petitioner provided no testimony regarding the

ecological effect of the Project on Petitioner's wetlands and

water resources. FINR witnesses Burleson, Davis, and Palmer

claimed no expertise as ecologists. In fact, Mr. Davis admitted

that he normally provides his modeling reports to others with

expertise regarding whether a modeled water level drop could

actually be expected to cause harm. This was not done here.

There was no credible testimony that adverse environmental or

water resource impacts would result to Petitioner's property

from the Project.

3 6

I. Materials

78. CF has analyzed whether it will have sufficient

materials available to it to accomplish the objectives within

the CRP, and sufficient capacity in existing South Pasture mine

and proposed Project site CSAs to dispose of waste clays

generated by the phosphate matrix processing.

79. For this purpose CF prepared a Life of Mine Backfill

Plan (LOMBP). The LOMBP describes how on-site materials will be

utilized by CF, during both mining and reclamation activities,

over the life of the mine.

80. Based upon CF's calculations as reflected in the

LOMBP, information contained in the MPP, and testimony from CF's

expert witness, CF will have sufficient materials to achieve its

mining and reclamation objectives, and sufficient capacity to

dispose of waste clays in existing CSAs located on the South

Pasture mine and proposed CSAs on the Project site. CF will be

able to accomplish the mining and reclamation as proposed.

81. Petitioner's expert, Mr. Palmer, opined that CF had

not provided reasonable assurances of sufficient overburden to

create the overburden soil slopes on mine faces discussed in the

RMR. For the following reasons, his testimony is not credited.

He admitted no experience with mining, dragline booms, how

draglines cast overburden, or how cast overburden slopes are

created, and he mistakenly assumed CF was limited in the

3 7

transport of overburden to a distance of 330 feet, a figure not

supported by the record. Additionally, Mr. Palmer incorrectly

assumed that CF would be mining to an average depth of 73.3

feet, when in fact as reflected in the MPP, CF will be mining to

an average depth of 40.4 feet, which means the average

overburden thickness will be 18.9 feet, far greater than the

11.5 feet he assumed in his calculations.

82. On the other hand, CF witness Wuitschick testified

that there would be sufficient overburden to create the

overburden seals called for in the RMR. Mr. Blitch, a CF

employee with extensive mining experience and familiarity with

the Project, testified that transportation of overburden is not

limited to 330 feet and confirmed that CF will have more than

enough overburden to create the overburden slopes, which are

needed only along preserve and property boundaries and the

ability to move it where it is required.

J. Rules Requirements

83. With respect to the ERP criteria contained in

section 373.413 and rule 40D-4.301, CF has demonstrated, by a

preponderance of the evidence, reasonable assurances that the

Project:

a. Will not cause adverse water quantity impacts to

receiving waters and adjacent lands.

3 8

b. Will not cause adverse flooding to on-site or off-site

property.

c. Will not cause adverse impacts to existing surface

water storage and conveyance capabilities.

d. Will not adversely impact the value of functions

provided to fish and wildlife, and listed species

including aquatic and wetland dependent species, by

wetlands, other surface waters and other water related

resources.

e. Will not adversely affect the quality of receiving

waters such that the water quality standards will be

violated.

f. Will not cause adverse secondary impacts to the water

resources.

g. Will not adversely impact the maintenance of surface

or ground water levels or surface water flows.

h. Is capable, based on generally accepted engineering

and scientific principles, of being effectively

performed and of functioning as proposed.

i. Will be conducted by an entity with financial, legal,

and administrative capability of ensuring that the

activity will be undertaken in accordance with the

terms and conditions of the permit, if issued.

3 9

84. For the reasons expressed in Finding of Fact 64, a

contention by Petitioner that the SPE mine application must be

denied because CF failed to submit at hearing a separate

document entitled "Construction Surface Water Management Plan"

is rejected. This is because this requirement does not apply to

facilities like CF that are required to obtain individual NPDES

permits that address stormwater discharges. Assuming arguendo

that it did apply, the Southwest Florida Water Management

District Basis of Review for Environmental Resource Permit

Applications (BOR) criteria are designed to be flexible, and

other methods can be used to meet the rule objectives. Here,

CF submitted numerous reports and studies which have been

accepted as being the most persuasive on these issues, and

collectively they show that reasonable assurances have been

provided that all rule criteria have been satisfied.

85. With respect to the additional public interest and

other criteria contained in section 373.414 and rule 40D-4.302

for the protection of water resources and which are applicable

to projects located "in, on, or over wetlands or other surface

waters," CF has provided, by a preponderance of the evidence,

reasonable assurances that the Project will:

a. Not adversely affect the public health, safety, or

welfare or the property of others.

4 0

b. Not adversely affect the conservation of fish and

wildlife, including endangered or threatened species,

or their habitats.

c. Not adversely affect the flow of water.

d. Not adversely affect the fishing or recreational

values or marine productivity in the vicinity of the

activity.

e. Be temporary in nature.

f. Not adversely affect the current condition and

relative value of functions being performed by areas

affected by the Project.

g. Not cause unacceptable cumulative impacts.

h. Will maintain or improve the water quality and the

function of the biological systems present at the

Project site prior to the commencement of mining

activities.

86. The primary goal of the BOR is to meet District water

resource objectives of ensuring that the permit will not

authorize activities that are harmful to water resources or

inconsistent with the public interest. As noted above, however,

the criteria are designed to be flexible, and other methods of

meeting those objectives will be considered. See BOR §§ 1.1 and

1.3.

4 1

87. With respect to phosphate mining reclamation criteria

contained in chapter 378 and rule 62C-16.0051, CF has provided,

by a preponderance of the evidence, reasonable assurances that

the Project will meet the reclamation criteria contained in the

rule.

88. The prima facie case provided by CF and the Department

at hearing of CF's entitlement to the ERP for the Project was

not successfully refuted, as discussed in the foregoing Findings

of Fact.

89. The prima facie case provided by CF and the Department

at hearing of CF's entitlement to the CRP for the Project was

unrefuted. No evidence concerning the reclamation criteria was

presented by Petitioner.

90. As set forth in the Order Granting the Motion to

Strike and Motion in Limine issued on February 16, 2012, the

Petition contained no factual allegations relative to the

compliance with applicable regulatory requirements regarding, or

potential for harm resulting from, the South Pasture

Modifications (as opposed to the ERP or CRP for the Project).

Therefore, the allegations relating to the South Pasture

Modifications were stricken. The prima facie case provided by

CF and the Department at hearing of CF's entitlement to the

associated WRP and CRP Modifications for the South Pasture mine

(South Pasture Modifications) was not refuted, and Petitioner

4 2

made no proffer relative to the South Pasture Modifications

prior to the close of the evidentiary proceedings. The ruling

at hearing to receive in evidence the permit application and the

Department's proposed agency action on these two items is

reaffirmed.

CONCLUSIONS OF LAW

91. Petitioner has standing to participate in this

proceeding. Although Petitioner did not prevail on the merits

of its claims, it presented evidence to prove that its

substantial interests could reasonably be expected to be

affected by the agency's action. See , e.g. , St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. ,

54 So. 3d 1051, 1054 (Fla. 5th DCA 2011).

92. Section 120.569(2)(p), as amended in 2011, is

applicable to this case. It establishes a new order of

presentation and burden of proof in permit challenge cases.

Permit cases under chapters 373, 378, and 403 now proceed in

three phases: Phase I is the submittal by the applicant and

agency of the application, notice of intent to approve the

permit, and other relevant material submitted to the agency

which constitute a prima facie case demonstrating entitlement to

the proposed permits; Phase II is the submittal by the

challenger of evidence supporting the challenge of the proposed

permits; and Phase III is the submittal by the applicant and

4 3

agency of any rebuttal evidence demonstrating that the

application meets the conditions of issuance.

93. The burden of proof in permit challenge cases is now

on the challenger, who has the "burden of ultimate persuasion

and has the burden of going forward to prove the case in

opposition to the [permit] by competent and substantial

evidence." § 120.569(2)(p), Fla. Stat.

94. Section 120.569(2)(p) provides that CF can make a

prima facie case of entitlement to the permits by entering the

applications, materials supporting the applications, and the

proposed Department approvals. CF and the Department submitted

these materials and presented additional factual and expert

opinion testimony and evidence to supplement the prima facie

case.

95. Because this is a de novo proceeding, and not merely a

review of the prior agency action, the parties may present

additional evidence not included in the permit application and

other documents previously submitted to the Department during

the permit application review process. See , e.g. , Hamilton

Cnty. Bd. of Cnty. Comm'rs v. State Dep't of Envtl. Reg. , 587

So. 2d 1378, 1387 (Fla. 1st DCA 1991); Fla. Dep't of Transp. v.

J.W.C. Co., Inc. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981).

Thus, what CF did or failed to do during the process of the

agency review of the applications is not the dispositive issue

4 4

in these de novo proceedings. The dispositive issue is whether

the evidence presented at the hearing provides reasonable

assurance that CF's proposed activities on the Project site will

comply with applicable environmental and phosphate mine

reclamation standards. See McDonald v. Dep't of Banking and

Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977); Clarke v. Melton ,

Case No. 89-6051, 1990 Fla. ENV LEXIS 186 (Fla. DOAH Oct. 16,

1990), adopted , OGC Case No. 89-1250 (Fla. DER Nov. 30, 1990);

Peace River/Manasota Reg. Water Supply Auth. v. IMC Phosphates

Co. , Case No. 03-0791, 2005 Fla. Div. Adm. Hear. LEXIS 736 (Fla.

DOAH May 9, 2005, R.O on Remand, June 16, 2005), adopted , OGC

Case No. 03-0205 (Fla. DEP July 31, 2006).

96. Petitioner has failed to meet its burden of showing

that the permits should not be issued. Conversely, by a

preponderance of the evidence, CF has demonstrated that

reasonable assurances have been given that all applicable

permitting criteria have been met. Reasonable assurances means

"a substantial likelihood that the project will be successfully

implemented." See Metro. Dade Cnty. v. Coscan Fla., Inc. , 609

So. 2d 644, 648 (Fla. 3d DCA 1992). It does not require

absolute guarantees that the applicable conditions for issuance

of the permit have been satisfied. See , e.g. , Crystal Springs

Recreational Pres., Inc. v. S.W. Fla. Water Mgmt. Dist., Case

No. 99-1415, 2000 Fla. ENV LEXIS 41 at *98 (Fla. DOAH Jan. 27,

4 5

2000, SWFWMD Feb. 23, 2000). Speculations of future harm, of

what "might" occur, and a party's subjective beliefs, are not

sufficient to carry the burden of presenting contrary evidence

or to demonstrate material facts to support its claim. See

Chipola Basin Protective Grp., Inc. v. Dep't of Envtl. Reg. ,

Case No. 88-3355, 1988 Fla. Div. Adm. Hear. LEXIS 4765 (Fla.

DOAH Nov. 14, 1988), adopted , OGC Case No. 88-0587, 1988 Fla.

ENV LEXIS 112, (Fla. DER Dec. 30, 1988)(petitioner cannot carry

the burden of presenting contrary evidence by mere speculations

concerning what "might" occur). See also Hoffert v. St. Joe

Paper Co. , Case No. 89-5053, 1990 Fla. ENV LEXIS 194 (Fla. DOAH

Oct. 26, 1990), adopted , OGC Case No. 89-1304 (Fla. DER Dec. 6,

1990); Menorah Manor, Inc. v. Agency for Health Care Admin. 908

So. 2d 1100, 1104 (Fla. 1st DCA 2005)(conclusory allegations of

speculative future harm are insufficient to demonstrate that a

party's substantial interest will be affected).

97. In sum, a preponderance of competent substantial

evidence, including the entirety of the application, engineering

studies and reports, scientific testimony, and a voluminous

application, all support the Department's determination of

reasonable assurance of entitlement to the approvals at issue.

98. Finally, as set forth in undersigned's Order Granting

CF's Motion in Limine and Motion to Strike, Petitioner's

assertions regarding Hardee County's quarter-mile setback

4 6

requirement had no legal basis in any environmental factors that

are cognizable under the ERP or CRP permitting programs.

Nonetheless, as noted above, Petitioner offered no credible

evidence of adverse environmental or water resources impacts

that would occur to Petitioner's property as a result of mining

or reclamation within the footprint authorized by the ERP or

CRP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order approving the applications of CF Industries,

Inc.

DONE AND ENTERED this 30th day of April, 2012, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2012.

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ENDNOTE

1/ On March 12, 2012, FINR filed a Petition for Writ of

Prohibition and/or Review of Non-Final Agency Order with the

First District Court of Appeal seeking a review of that Order.

See FINR II, Inc. v. CF Indus., Inc. , Case No. 1D12-1308. The

Petition for Writ of Prohibition was denied on March 14, 2012.

The Petition for Review of Non-Final Agency Order remains pending

as of the date of this Recommended Order.

COPIES FURNISHED:

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas M. Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Edward P. de la Parte, Jr., Esquire

de la Parte & Gilbert, P.A.

Post Office Box 2350

Tampa, Florida 33601-2350

Frank E. Matthews, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Brynna R. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

4 8

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.

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