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

4DIVISION OF ADMINISTRATIVE HEARINGS

8FINR II, INC., )

12)

13Petitioner, )

15)

16vs. ) Case No. 11-6495

21)

22CF INDUSTRIES, INC., AND )

27DEPARTMENT OF ENVIRONMENTAL )

31PROTECTION, )

33)

34Respondents. )

36______________________________ )

38RECOMMENDED ORDER

40Pursuant to notice, this matter was heard before the

49Division of Administrative Hearings by its assigned

56Administrative Law Judge, D. R. Alexander, on March 26-28, 2012,

66in Tallahassee, Florida.

69APPEARANCES

70For Petitioner: Edward P. De la Parte, Jr., Esquire

79Kristin Y. Melton, Esquire

83de la Parte & Gilbert, P.A.

89Post Office Box 2350

93Tampa, Florida 33601-2350

96For Respondent: Frank E. Matthews, Esquire

102(CF) Susan L. Stephens, Esquire

107Miguel Collazo, III, Esquire

111Thomas R. Philpot, Esquire

115Hopping Green & Sams, P.A.

120Post Office Box 6526

124Tallahassee, Florida 32314-6526

127For Respondent: Brynna J. Ross, Esquire

133(Department) Department of Environmental Protection

1383900 Commonwealth Boulevard

141Mail Station 35

144Tallahassee, Florida 32399-3000

147STATEMENT OF THE ISSUE

151The issue is whether CF Industries, Inc. (CF), has provided

161reasonable assurance that its proposed mining and reclamation of

170the South Pasture Extension (SPE) mine in Hardee County can be

181conducted in a manner that complies with applicable statutes and

191rules so that an Environmental Resource Permit (ERP), SPE

200conceptual reclamation plan (CRP), South Pasture Wetland

207Resource Permit (WRP) Modification, and South Pasture Conceptual

215Reclamation Plan Modification should be issued by the Department

224of Environmental Protection (Department).

228PRELIMINARY STATEMENT

230On November 21, 2011, the Department issued proposed agency

239action approving an application by CF for the SPE ERP, SPE CRP,

251South Pasture Wetland Resource Permit Modification, and South

259Pasture Conceptual Reclamation Plan Modification. On

265December 12, 2011, FINR II, Inc. (FINR or Petitioner), which

275owns property adjacent to CF's property, timely filed a Petition

285challenging the proposed agency action. The matter was referred

294by the Department on December 29, 2011, to the Division of

305Administrative Hearings (DOAH) to be set for hearing. On

314January 3, 2012, CF filed a Notice of Request for Summary

325Hearing pursuant to section 378.205(3), Florida Statutes. An

333Order approving that request was issued on January 4, 2012, and

344the matter was scheduled for final hearing on March 26-30, 2012,

355in Tallahassee, Florida. On March 12, 2012, the Department

364issued revised proposed agency action incorporating a new

372modeling report prepared by CF which provides further support

381for the Department's proposed action.

386At the final hearing, FINR presented the testimony of

395Steve Freeley, Vice-President; Nicolas Katzaras, General Manager

402of CF; Phillip R. Davis, President of SDI Environmental, Inc.

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

422hydrogeologist with SDI and accepted as an expert; Robert W.

432Burelson, a professional engineer with Water & Air Research,

441Inc., and accepted as an expert; and Dr. Jorge J. Villalba,

452Chief Medical Officer and Director of FINR and accepted as an

463expert. Also, it offered FINR Exhibits 1-9, 42-49, 52, 129

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

483147, 149-151, 151A, 152-156, 159, 162, and 164-166. All were

493received except exhibit 52, upon which a ruling was reserved.

503The objection to that exhibit is overruled. FINR also submitted

513a written proffer on matters previously excluded by Order dated

523February 16, 2012. That Order granted CF's Motion to Strike and

534Motion in Limine. 1 CF presented the testimony of Gary Blitch,

545Senior Environmental Affairs Specialist; Dr. Douglas J. Durbin,

553Technical Director and Senior Principal/Manager of Cardno Entrix

561and accepted as an expert; Dr. John Kiefer, a professional

571engineer with AMEC Environmental and Infrastructure, Inc.

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

588professional engineer with AMEC and accepted as an expert; and

598Jeffrey A. Beriswill, a professional engineer with AMEC and

607accepted as an expert. Also, it offered CF Exhibits 4, 6, 7,

61914-17, and 19 which were received in evidence. The Department

629presented the testimony of Matt Wilson, an Environmental

637Specialist II; Orlando E. Rivera, Program Administrator of the

646Mandatory Phosphate Section and accepted as an expert; and

655Dr. Owete S. Owete, Program Administrator-Technical Support

662Section and accepted as an expert. Also, it offered Department

672Exhibits 1 and 2, which were received in evidence. Finally, CF

683and the Department jointly offered Joint Exhibits 1A, 1B, 2, 3,

6944A, 4B, 5-7, 8A (Tabs 1-47, 49-53, and 55-79), 8B (Tabs 86-91,

70693-98, 105, and 106), and 15-22, which were received in

716evidence.

717A Transcript of the hearing (six volumes) was filed on

727March 29, 2012. Proposed Findings of Fact and Conclusions of

737Law were filed by Petitioner and jointly by Respondents on

747April 12, 2012, and they have been considered in the preparation

758of this Recommended Order.

762FINDINGS OF FACT

765A. The Parties

7681. CF is a Delaware corporation authorized to do business

778in the State of Florida and is the applicant in these

789proceedings. CF has applied for permits to conduct phosphate

798mining, reclamation, and associated activities on property in

806Hardee County known as the South Pasture Extension tract. These

816activities are referred to as the "Project," and the South

826Pasture Extension tract property is referred to as the "Project

836site."

8372. The Department is a state agency with jurisdiction over

847ERP permitting under Part IV, chapter 373, for phosphate mining

857activities, and jurisdiction over phosphate mining reclamation

864under Part II, chapter 378. Pursuant to that authority, the

874Department reviewed the ERP, CRP, WRP Modification, and CRP

883Modification applications for the Project.

8883. Petitioner is a Florida corporation in good standing,

897doing business in the State of Florida. Petitioner owns

906approximately 875 acres of land east of County Road 663 and

917immediately south of and adjacent to the Project site, which it

928leases to two affiliated companies, Florida Institute of

936Neurological Rehabilitation, Inc. (FINR I, Inc.) and FINR III,

945LLC. FINR I, Inc., operates the Florida Institute of

954Neurological Rehabilitation, which is a post-acute, state-

961licensed inpatient rehabilitation facility accredited by the

968Commission on Accreditation of Rehabilitation Facilities. It

975specializes in the treatment of children and adults who have

985sustained brain injury or some other form of neurologic trauma.

9954. The facility currently consists of 238 beds offering

1004three levels of care and has approximately 135 to 140 inpatient

1015clients, of which 115 reside on the property. The property has

1026been used as a neurological rehabilitation center since 1986.

10355. Among other things, patients participate in organized

1043and individual recreational activities on the property,

1050including fishing, nature walks, baseball, and basketball games.

1058Outdoor activities are critical to patient care, especially

1066those with frontal lobe damage.

10716. The facility is only accessible by Vandolah Road (from

1081the south) and that roadway serves as its only evacuation route.

1092If the Project were to cause flooding on its property, as

1103Petitioner alleges, it could reasonably be expected to prevent

1112Petitioner from leasing its land to the related companies

1121because the facility's employees or outside medical personnel

1129could not enter the facility or evacuate the patients; it could

1140interfere with the generators or electrical components required

1148for patient care; it could deny the patients use of outdoor

1159areas; and it could impede FINR I, Inc.'s ability to develop and

1171expand facilities on the undeveloped part of the property.

1180B. General Background

11837. Phosphorus is an essential element for plant and animal

1193nutrition and is one of the primary nutrients necessary for

1203plant growth. Phosphate rock is one, if not the only, known

1214significant source of phosphorus, and there are no synthetic

1223substitutes. Continued mining of phosphate rock is therefore

1231critical to the agriculture industry as well as to the general

1242population, both in the United States and globally. See

1251§ 378.202(1), Fla. Stat.("[t]he extraction of phosphate is

1260important to the continued economic well-being of the state and

1270to the needs of society").

12768. CF has been mining in northwest Hardee County for

1286decades. CF first began mining for phosphate in 1978 at what

1297was then known as the North Pasture mine. Mining operations at

1308the North Pasture mine concluded in the mid 1990s, and the lands

1320associated with that mine have been completely reclaimed.

13289. Pursuant to local, state, and federal permits, CF

1337relocated its beneficiation plant (which separates the phosphate

1345ore matrix into phosphate rock, waste clay, and sand) to its

1356present location south of State Road 62 in 1993, and began

1367operation of its South Pasture mine in 1995. The South Pasture

1378mine encompasses about 15,390 acres.

138410. After the startup of the South Pasture mine, CF

1394acquired three additional land parcels totaling approximately

14017,512.8 acres with mineable reserves contiguous to and

1410immediately south of the South Pasture mine. These parcels are

1420collectively referred to as the South Pasture Extension tract or

1430the Project site. The Project site is bisected by County Road

1441663, which runs north and south through the Project site,

1451generally in a southeasterly direction. Immediately to the west

1460is Mosaic Fertilizer, LLC's (Mosaic's) permitted Ona Fort Green

1469Extension and to the south is Mosaic's Ona mine, for which

1480applications for mining approvals are currently pending

1487regulatory approval.

148911. CF currently extracts phosphate rock at its South

1498Pasture mine at a rate of 3.6 million tons per year. If the

1511applications are approved, the Project will extend the life of

1521the current South Pasture mine and beneficiation plant by ten

1531years, permitting mining to continue at this same average rate

1541through 2035.

154312. CF has an excellent record of compliance with respect

1553to permits issued under chapters 373 and 378. Petitioner has

1563raised no enforcement or compliance issues relative to CF's

1572operation of its mining activities.

157713. In 1986, New Medico, Petitioner's predecessor in

1585interest, established the neurological rehabilitation center on

1592a 298-acre campus at the center of Petitioner's property and

1602began accepting patients that same year. Petitioner actually

1610acquired the Hardee County property in 1996, after mining

1619activities began on the South Pasture mine.

162614. CF and Petitioner share a common boundary on three

1636sides. The historic headwaters of Troublesome Creek are located

1645within the Project site and along this common boundary, as well

1656as within Petitioner's property, and they have been heavily

1665ditched and degraded by agricultural activitiesoublesome

1671Creek itself (as opposed to its headwaters) begins on the

1681southeastern portion of the Project site, east of Petitioner's

1690property, and has been reduced to a narrow, fairly incised

1700conveyance flowing intermittently south-southeast to the Peace

1707River.

170815. Since 1995, when CF began mining operations at its

1718South Pasture mine, and until the present time when Petitioner

1728filed its Petition challenging CF's Project, the parties'

1736respective operations have co-existed and are currently

1743approximately a half mile apart.

1748C. Project Logistics

175116. Over the last five years CF has relied upon a team of

1764experts from several different consulting firms and disciplines

1772to assist it with preparing and supporting its application.

178117. CF will integrate materials handling on both the

1790existing South Pasture mine and the Project site. Specifically,

1799mining and reclamation operations at the Project site will

1808employ the same methods currently approved by the Department for

1818use at the South Pasture mine, and will utilize the existing

1829operational facilities and workforce.

183318. The existing beneficiation plant at the South Pasture

1842mine will separate the phosphate ore matrix mined at the Project

1853site into phosphate rock, sand, and clay. Waste clays from the

1864Project will be disposed of within existing clay settling areas

1874(CSAs) at the South Pasture mine and new CSAs proposed for the

1886Project site. The Project's mine water recirculation system

1894will also be integrated with the South Pasture mine's

1903recirculation system.

190519. As it has done at the South Pasture mine, which is

1917located only one-half mile north of Petitioner's property, CF

1926must install a perimeter ditch and berm system (which includes a

1937recharge ditch system) along the Project site's boundaries prior

1946to any clearing to contain Project water within the CF site and

1958to protect adjacent properties during mining operations. The

1966ditch and berm system is installed approximately six months to

1976one year prior to the extraction of material within a particular

1987mine block.

198920. Pursuant to Specific Condition 14 of the ERP, the

1999recharge ditch system, which serves to provide groundwater

2007recharge to preserved and off-site wetlands and surface waters

2016during mining to avoid potential adverse impacts, must be

20251 0

2027constructed before mining activities can occur within 1,800 feet

2037of any preserve or property boundary. The recharge ditch

2046systems in each mine block adjacent to such boundaries will be

2057designed based upon additional site-specific hydrogeologic

2063testing and analysis and installed prior to mining after the

2073Department has approved the final design.

207921. Specific Condition 14 also requires development and

2087implementation of an Environmental Management Plan consistent

2094with the requirements of that condition and with Appendix 14 of

2105the ERP at least four years prior to mining of the Project site.

2118Pursuant to this condition, CF must also conduct detailed

2127baseline monitoring for at least four years prior to mining and

2138conduct continuous during-mining monitoring, visual inspections,

2144water table and stream flow analysis, and if necessary,

2153implement hydrologic mitigative or remedial measures, to ensure

2161that the recharge systems function as intended to protect

2170unmined wetlands and other surface waters from adverse impacts

2179by mining operations. These activities must continue until the

2188area within 1,800 feet of the preserve or property boundary is

2200backfilled and CF has documented that subsurface flows have

2209achieved conditions hydrologically equivalent to those described

2216in the Integrated Modeling Report (IMR) prepared for the

2225Project.

22261 1

222822. CF's mine plan indicates the sequence of mining on the

2239Project site. Preparatory mining activities are scheduled to

2247begin in 2017, with actual mining scheduled to begin in 2019,

2258but are not scheduled to begin adjacent to Petitioner's property

2268until 2027, progressing along CF's shared property boundary with

2277Petitioner in a counterclockwise fashion, and west of County

2286Road 663 through 2031. Piezometer wells and rainfall gauges

2295must be installed along all preserves and property boundaries at

2305least four years prior to initiating mining of the Project site,

2316allowing for collection of an ample amount of baseline reference

2326data before mining begins adjacent to Petitioner's property.

233423. As mining progresses within each mine block,

2342backfilling with sand tailings and initial revegetation will

2350follow mining almost immediately (three months) after mining,

2358including in the vicinity of Petitioner's property. As each

2367mine block is backfilled, within approximately three to five

2376years after mining, the entire area will be completely

2385backfilled, contoured, and revegetated. Within the same

2392approximate timeframe, once the entire area is stabilized and

2401following one year of water quality monitoring, the ditch and

2411berm system will be dismantled and the area reconnected to its

2422watershed.

242324. CF has sufficient water available from multiple water

2432inputs, including very clean water from its Aquifer Recharge and

24421 2

2444Recovery Project (ARRP) on the South Pasture mine to support the

2455proposed mining and reclamation activities on the Project site.

246425. CF will also construct a reroute ditch adjacent to

2474Petitioner's property. The purpose of the reroute ditch is to

2484reroute existing surface water flow in the Troublesome Creek

2493headwater ditches off of Petitioner's property, around active

2501mining operations, and then into Troublesome Creek as it exits

2511the Project site to the southeast. To specifically address

2520Petitioner's concerns regarding flooding, CF submitted

2526conceptual designs for a reroute ditch to the Department prior

2536to final hearing in this matter, and the Department modified its

2547ERP accordingly. Like the recharge system, the final design of

2557the reroute must be based on an additional site-specific

2566assessment conducted pursuant to the ERP, prior to actually

2575severing flow.

257726. CF's South Pasture mine has two permitted National

2586Pollutant Discharge Elimination System (NPDES) outfalls located

2593on Shirttail Branch and Doe Branch, both of which flow into

2604Payne Creek, which is a tributary to the Peace River. While

2615these existing NPDES outfalls will continue to meet all of CF's

2626discharge needs for Project mining operations due to integration

2635of the mine recirculation system, CF may obtain additional

2644outfalls on the Project site to provide flexibility to

2653supplement stream flows during mining in preserved and off-site

26621 3

2664streams. One such potential discharge point was identified on

2673the northern boundary at Petitioner's property, as "S-1."

2681D. Petitioner's Allegations

268427. Conflicting testimony was presented by the parties on

2693the issues raised by Petitioner. These conflicts have been

2702resolved in Respondents' favor, who submitted the more credible

2711and persuasive evidence. Where a specific allegation is not

2720addressed in this Recommended Order, it has been considered and

2730found to be without merit.

273528. Petitioner alleges, on the one hand, that the Project

2745will either cause flooding on its property so as to adversely

2756impact its and its lessees' use and enjoyment of the property,

2767and, on the other, will cause dewatering of its property so as

2779to adversely affect its wetlands and other water resources.

278829. While the undersigned did grant CF's Motion to Strike,

2798Petitioner was permitted to pursue its water resource and

2807environmental impact issues and expressed its concerns regarding

2815the Project's impact on Petitioner's property and development

2823potential as well as on the health, safety, and welfare of

2834residents or inhabitants of Petitioner's property. These

2841concerns were addressed by Steve Freeley, FINR II, Inc.'s former

2851director of marketing and now a Vice President, and Dr. Jorge

2862Villalba, FINR I, Inc.'s medical director.

28681 4

287030. Mr. Freeley, a fact witness, summarized Petitioner's

2878concerns, as he understood them, to be the Project's potential

2888for flooding, dewatering, and well contamination on Petitioner's

2896property, particularly how these events might affect

2903Petitioner's pocketbook and the future development potential of

2911Petitioner's property. However, Mr. Freeley admitted that he

2919had no knowledge of the Project application or supporting

2928materials, had never been to the South Pasture mine, and had no

2940familiarity with phosphate mining.

294431. Dr. Villalba testified primarily on behalf of FINR I,

2954Inc., patients at the rehabilitation facility, in particular his

2963concerns regarding his patients' specific sensitivity to

2970environmental stimuli. Dr. Villalba has no legal affiliation or

2979association with Petitioner, being solely an employee of, and

2988the medical director for, FINR I, Inc. Dr. Villalba also

2998testified regarding the need to internally relocate some

3006patients due to flooding caused by hurricanes in 2004. More

3016specifically, Dr. Villalba testified that in 2004 residential

3024cabins on-site experienced water levels rising up to the steps

3034of the elevated residential facilities. Like Mr. Freeley, he

3043admitted he had no knowledge of the application materials,

3052phosphate mining, CF's South Pasture mine operations, or the

3061materials submitted in support of the proposed agency action.

30701 5

307232. For all of the following reasons, the adverse

3081environmental and water resource-related concerns of Petitioner

3088are determined to be without merit and are therefore not

3098credited.

3099E. Analysis of Hydrology

310333. CF and the Department thoroughly investigated the

3111Project's potential for causing adverse flooding and dewatering

3119impacts on adjacent properties.

312334. Event-based stormwater runoff modeling provided

3129reasonable assurance that peak discharge rates and outflow

3137volumes at exit points from the Project site under post-

3147reclamation conditions would not cause adverse offsite flood

3155impacts. The results of CF's flood modeling are summarized in a

3166flood modeling report (FMR). The FMR demonstrated that the

3175proposed post-reclamation land use, topography, and soil

3182distributions will not result in any adverse changes in the peak

3193discharge comparison to pre-mining conditions for flood flows;

3201peak flood values will be maintained or improved by the

3211reclamation design; and post-reclamation peak flood values along

3219Petitioner's shared property boundary with CF will be lower than

3229pre-mining conditions.

323135. Three standard rainfall events were evaluated: (a) the

3240mean annual 2.33-year, 24-hour event, (b) the 25-year, 24-hour

3249event, and (c) the 100-year, 24-hour event. These storm events

32591 6

3261are part of a standard suite of engineering design storms that

3272the Department commonly relies upon to assess pre-mining versus

3281post-reclamation flooding. CF utilized a one-dimensional

3287surface water computer model, MIKE 11, to prepare the flood

3297modeling report. MIKE 11 uses the Natural Resources

3305Conservation Service's (formerly the United States Soil

3312Conservation Service's) TR-55 based approach and applies a

33201-D hydraulics component that represents Florida landscape

3327conditions well. This modeling, and the resultant FMR, which is

3337a part of the application, were not contested. It demonstrated

3347that the proposed post-reclamation condition will not result in

3356any adverse flooding. In fact, local flood hazards will likely

3366be reduced due to the lowering of peak flood values.

337636. CF also developed an integrated surface and

3384groundwater model for the Project. Integrated modeling assesses

3392long-term hydrologic conditions to ensure that the Project will

3401result in hydropatterns that restore and sustain reclaimed

3409wetlands and waterbodies on the Project site. The MIKE SHE

3419model was used to perform the hydrologic simulations; the

3428modeling results are contained in CF's IMR, as part of the

3439application. It was also used to establish the normal seasonal

3449high and seasonal low ranges for wetlands and surface waters

3459that were used in other portions of the application, such as the

3471Recharge Modeling Report (RMR). There was no objection to the

34811 7

3483use of this model or its results. The IMR indicates that the

3495proposed reclamation will restore on-site wetland functions,

3502promote the maturation of on-site wetlands, and result in an

3512overall water balance that maintains or improves regional

3520hydrology. Off-site stream flows to Troublesome Creek will be

3529enhanced, which will improve that system's capacity to support

3538aquatic fauna.

3540F. During-Mining Hydrologic Analysis

354437. In addition to performing pre-mining and post-

3552reclamation condition hydrologic analyses, CF and the Department

3560evaluated the Project's potential for causing adverse flooding

3568and dewatering impacts on adjacent properties during mining.

3576The existence of several factors inherent to the mining process,

3586discussed below, typically makes during-mining flood event

3593modeling unnecessary to provide reasonable assurances. See Lee

3601Cnty. v. Mosaic Fertilizer, LLC , Case No. 08-3886, 2008 Fla. ENV

3612LEXIS 171 (Fla. DOAH Dec. 18, 2008), adopted , OGC Case No. 08-

36241852, 2009 Fla. ENV LEXIS 14 (Fla. DEP Jan. 30, 2009).

363538. The application contains during-mining water balance

3642analyses that specifically evaluated the biological integrity of

3650on-site and off-site preserved areas, streams, and wetlands

3658during mining and after reclamation. CF prepared a mine and

3668production plan (MPP) describing general mine planning and

3676scheduling, as well as its proposed integration with the South

36861 8

3688Pasture mine, that contained an operational during-mining water

3696balance showing recirculation system inputs and outflows. The

3704primary sources of water input into the mine recirculation

3713system for the Project will continue to be direct rainfall

3723capture, groundwater from existing permitted wells, water

3730content of the mined matrix and overburden, and reclaimed water

3740from the City of Wauchula. The primary sources of water

3750consumption will be evapotranspiration and net waste clay

3758entrainment; CF recycles and reuses 95 percent of its water. As

3769described in the MPP, the primary sources of water discharge

3779will be through its existing two (and possibly additional)

3788permitted NPDES outfalls.

379139. There will be no substantial change in the during-

3801mining water balance as a result of the extension of mining into

3813the Project site. Moreover, the application, past practices and

3822experience, and evidence presented at hearing all indicate that

3831CF has more than sufficient amount of water available to conduct

3842the Project while simultaneously maintaining or improving the

3850biological integrity of downstream systems.

385540. CF has the demonstrated ability to manage large

3864amounts of water within its mine recirculation system and store

3874or discharge water as required to maintain downstream flows or

3884reduce flooding potential. During mining, CF can either

3892discharge stormwater treated to meet state water quality

39001 9

3902standards, or store it in its recirculation system, depending on

3912downstream conditions. Thus, even without a reroute ditch, the

3921risk of adverse flooding during mining is minimal. CF has never

3932caused any flooding of neighboring property in over 30 years of

3943mining.

394441. As noted earlier, upon construction of the perimeter

3953ditch and berm system along its shared property boundary with

3963Petitioner, CF will reroute existing water flow around active

3972mining operations and the berm system to reconnect flow with

3982Troublesome Creek.

398442. CF's expert witness testified that, from an

3992engineering perspective, a reroute ditch is not difficult to

4001design or construct, and that CF has successfully constructed

4010similar reroutes in the past and without causing flooding.

4019Nevertheless, in light of Petitioner's concerns, CF directed its

4028consultants to model the potential impacts from a reroute ditch

4038to assist in sizing the reroute ditch and associated structures.

4048The design objective was to ensure that no off-site increases in

4059peak flows or stages would occur during mining as compared to

4070existing conditions as a result of the Project during high

4080rainfall events.

408243. CF and Petitioner's consultants used the

4089Interconnected Pond Routing (ICPR) model to evaluate the reroute

4098ditch. CF analyzed the 25-year, 24-hour and the 100-year,

41072 0

410924-hour storm events. The model indicated that in many areas,

4119where the presence or absence of a reroute ditch would not make

4131a significant difference, water levels would remain unchanged,

4139and that in some areas closest to the proposed reroute ditch,

4150potential flood levels would actually be decreased by two-tenths

4159of a foot. This would actually reduce the likelihood of

4169localized flooding during significant storms over existing

4176conditions, which has posed a concern to Dr. Villalba for his

4187patients' safety during prior hurricane events.

419344. The modeling results were summarized in a Troublesome

4202Creek Reroute Ditch Modeling and Conceptual Design Report

4210(RDMR). Dr. John Kiefer, the co-author of the RDMR, as well as

4222Dr. Owete, a Department expert, opined that the Project,

4231including implementation of the proposed reroute ditch, would

4239not cause adverse flooding or water quantity impacts on

4248Petitioner's property during mining. Dr. Kiefer subsequently

4255identified and corrected some minor errors in the RDMR. These

4265changes had no effect on his ultimate opinion or this finding.

427645. According to Dr. Owete, the modeling was not necessary

4286to provide the requisite reasonable assurances. In fact, the

4295reroute ditch design drawings themselves were not requested by

4304the Department to provide reasonable assurances, but were

4312offered by CF as additional assurances in light of the concerns

4323raised by Petitioner during these proceedings. This testimony

43312 1

4333was echoed by Dr. Kiefer, who testified regarding the various

4343intrinsic protections against during-mining flooding that are

4350inherent to the Project. Further, the record establishes that

4359the design and the model are very conservative. The 100-year

4369event, for which the reroute ditch was designed, has only a one

4381percent likelihood of occurring in any given year within a

4391100-year period.

439346. The RDMR recommends that additional modeling be

4401conducted immediately prior to implementation to confirm the

4409design. The ERP specifically requires that the RDMR be

4418implemented. This is similar to conditions throughout the ERP

4427that require additional data gathering modeling or other

4435analysis and revised designs based on this additional analysis.

4444The ERP can provide for post-permit activities to be performed

4454as part of reasonable assurances. See Fla. Admin. Code R. 62-

44654.070(3).

446647. Petitioner's expert, Mr. Robert Burleson, opined that

4474the Project will cause flooding of Petitioner's property during

4483mining due to the construction of the perimeter berm. However,

4493Mr. Burleson used a starting water elevation on Petitioner's

4502property to run his model that was already commensurate with a

4513100-year flood elevation and then added a 100-year event to that

4524elevation. Mr. Burleson's model also assumed that no reroute

4533ditch would be constructed, and additionally assumed

45402 2

4542artificially high surface water conditions caused by the

4550recharge system which, conversely, Petitioner's expert,

4556Mr. Davis, opined would not prevent dewatering. Therefore,

4564his opinion on flooding is not credited.

457148. Mr. Burleson also opined that flooding would

4579nonetheless occur because of the construction of the perimeter

4588berm across Lettis Creek headwater wetlands, notwithstanding the

4596fact that there is no "stream" at this location, the landscape

4607is relatively flat, and County Road 663 and the railroad line

4618would lie between Petitioner's property and the perimeter berm.

4627However, Mr. Burleson's modeling assumed that County-maintained

4634culverts between the properties would be blocked during mining.

4643Even under this assumed condition, his modeling showed only a

4653slight increase in stage durations during significant 25-year

4661and 100-year events. However, CF has committed to maintain flow

4671from Petitioner's property onto the Project site at Lettis Creek

4681through existing culverts under County Road 663.

468849. Mr. Burleson also testified that in his view flooding

4698occurs "if there's an increase in water levels above what has

4709historically or naturally [occurred] for a given condition."

4717Tr. 522. However, Mr. Burleson did not know whether the FINR

4728property had ever been inundated in the way inundation was

4738depicted in the figures he provided and did not know whether the

4750inundation in the figures he provided could be a natural

47602 3

4762condition for the property. Thus, Mr. Burleson could not

4771testify, whether historically or naturally, the amount of water

4780depicted on his figures would occur. It was established that

4790the historic headwaters in this area have been heavily ditched

4800and altered from their historic or natural condition.

480850. CF assessed the potential that the reroute ditch could

4818result in dewatering during non-flood events. To address this

4827concern, CF designed the reroute ditch with a bottom elevation

4837that would match the bottom elevation of the existing ditch,

4847meaning the water table will intersect the reroute ditch in the

4858same manner it currently intersects the Troublesome Creek ditch.

4867Adjacent to Wetland 10E-40 in the southeast corner between

4876Petitioner's property and the Project property, however, the

4884reroute ditch received special design consideration because the

4892reroute ditch bottom will be below the bottom of the wetland at

4904that location. There, the reroute ditch will be armored, an

4914overland weir will regulate flow, and an impermeable geotextile

4923liner will be installed.

492751. Several intrinsic factors, relating to both the

4935reroute ditch design and the overall Project design, provide

4944further assurances that adverse flooding will not occur on

4953Petitioner's property during mining. Once CF constructs the

4961perimeter ditch and berm system, the area of the drainage basin

4972contributing flow to Petitioner's property will be reduced by

49812 4

4983approximately one-half, resulting in significantly less water

4990flowing onto Petitioner's property during flood events because

4998the ditch and berm system will divert stormwater that normally

5008reports to Troublesome Creek into CF's recirculation system.

5016The conveyance capacity of the reroute ditch will be equivalent

5026to or greater than that of the existing ditch that it would

5038replace. The reroute ditch will be installed in concert with

5048the ditch and berm system, which as noted above will reduce peak

5060flood flows in Troublesome Creek, meaning a lower tailwater

5069condition can be expected in Troublesome Creek downstream of its

5079confluence with the reroute ditch.

508452. CF thoroughly assessed the ability of the recharge

5093ditch to maintain recharge to wetlands and adjacent properties

5102during active mining of the Project. Specifically, CF evaluated

5111the seepage characteristics of the areas scheduled to be mined

5121and provided site-specific recommendations regarding recharge

5127system design in variable subsurface conditions. CF evaluated

5135the efficacy of treatment options that might be necessary to

5145incorporate in the recharge ditch design in certain subsurface

5154conditions to prevent potential adverse impacts. The goal of

5163the recharge ditch design was to maintain the water table during

5174mining operations, within the normal range of seasonal high and

5184seasonal low water table elevations along preserve and property

5193boundaries, including Petitioner's property. The normal

51992 5

5201seasonal range used to develop the RMR was obtained from the IMR

5213analysis.

521453. In order to appropriately evaluate subsurface

5221permeabilities at the Project site, CF's consultants first

5229engaged in a rigorous geotechnical exploration program: they

5237reviewed available prospect borings and design reports; they

5245developed subsurface profiles along wetland and property

5252boundaries within the study areas based on prospect boring data;

5262they completed four Standard Penetration Test borings at

5270locations selected based on the subsurface profiles; they

5278installed a deep, intermediate, and shallow piezometer at each

5287of the borehole locations; and they completed in-situ hydraulic

5296conductivity tests in each of them.

530254. This information resulted in a detailed subsurface

5310profile that ran along the entire border of the mining areas and

5322identified a range of subsurface conditions site-wide, with both

5331low and high permeability values, consistent with regional data

5340and Petitioner's findings.

534355. Next, CF's consultant developed 14 design sections,

5351including cross sections at each of the locations specifically

5360requested by the Department, two adjacent to Petitioner's

5368property, and conducted seepage analyses for each. For the two

5378design sections nearest to Petitioner's property, no continuous

5386layer of highly-permeable limestone or other high permeability

53942 6

5396strata were encountered that were reasonably likely to affect

5405performance of the recharge ditch, and thus no particular "add

5415on" hydrologic mitigative measures to the recharge ditch appear

5424reasonably likely to be needed. Nonetheless, the efficacy of

5433those additional measures in higher permeability soils was fully

5442evaluated.

544356. Results of the seepage analyses on the 14 design cross

5454sections are summarized in the RMR. The RMR concludes that, in

5465most mine areas, sufficient recharge will be provided to

5474preserved wetlands and adjacent properties during mining using a

5483recharge ditch designed as proposed in the RMR. Nine of the 14

5495cross sections did not have a continuous highly permeable

5504limestone layer, including the two near Petitioner's property;

5512and a recharge ditch with the water level maintained at ground

5523level was sufficient to maintain an adequate groundwater level

5532in off-site and preserved wetlands at these nine cross sections,

5542to the center of the wetland.

554857. Only five of the 14 design cross sections contained a

5559continuous, permeable limestone layer within the matrix layer.

5567For areas where such high permeability layers do exist,

5576additional hydrologic mitigative measures were recommended in

5583addition to the recharge ditch, such as recharge wells,

5592permeable trenches, localized grouting, and soil-bentonite

5598cutoff walls, in order to maintain groundwater levels. In the

56082 7

5610event a permeable limestone layer is encountered within the

5619matrix layer, the RMR concludes that the utilization of recharge

5629wells, sand trenches, or other treatment options will be

5638effective in maintaining the normal range of seasonal

5646groundwater levels. Pursuant to the RMR recommendations,

5653decisions regarding which specific mitigative measure is

5660appropriate to use to address a specific subsurface condition

5669will be made based upon more detailed, site-specific data and

5679design modifications determined through field investigations, to

5686include additional test borings, piezometers, field measurements

5693of hydraulic conductivities, and additional seepage analyses.

5700These additional measures are required by the ERP conditions and

5710the final design must be approved by the Department.

571958. While the RMR did not assume the existence of a

5730reroute ditch, Mr. Beriswill, a professional engineer,

5737subsequently evaluated the potential impact of a reroute ditch

5746on the RMR's recommendations and conclusions. Based upon this

5755subsequent evaluation, Mr. Beriswill concluded that no

5762significant changes in the design of the recharge ditch were

5772necessary to account for the ditch, although he and other

5782consultants did agree that addition of an impermeable geotextile

5791liner to a portion of the reroute ditch would reduce the

5802potential for dewatering adjacent to Wetland 10E-40 and should

5811be implemented.

58132 8

581559. The RMR also evaluated the stability of the mine cut

5826face seal embankment (construction of which is common in the

5836industry) and provided recommendations to maintain adequate and

5844stable slopes during mining activities. Based upon these

5852analyses, CF's consultants recommended a one-foot (vertical) to

5860five-foot (horizontal) (1:5) slope to ensure a 1.3 factor of

5870safety for slope stability, which is within industry standards.

5879G. Water Quality Impacts

588360. In addition to the above analyses, CF and the

5893Department also thoroughly evaluated potential on-site and off-

5901site water quality issues associated with the Project.

590961. As noted earlier, discharges will occur only through

5918permitted NPDES outfalls. Additional water quality protection

5925for adjacent undisturbed surface waters and wetlands will be

5934provided by the perimeter ditch and berm systems and other

5944proposed best management practices (BMPs), such as silt fences

5953and stormwater collection systems. During mining and

5960reclamation, these practices will preclude uncontrolled releases

5967of water to adjacent unmined and downstream areas. There are

5977also detailed requirements in the ERP for monitoring water

5986quality during mining and reclamation activities. All of these

5995measures will be effective in preventing violations of water

6004quality standards, and will ensure that the water quality of

60142 9

6016preserved on-site systems will be protected during mining

6024activities at the Project site.

602962. A Stormwater Pollution Prevention Plan (SPPP) was

6037prepared to identify BMPs and controls for the Project during

6047land preparation, mining, backfilling, and reclamation. The

6054SPPP also incorporates by reference other documents already in

6063place on the South Pasture mine pursuant to CF's NPDES permit

6074for the South Pasture mine. Among these documents are a Best

6085Management Practices/Pollution/Prevention (BMP3) Plan that

6090generally describes BMPs for waste management, spill reporting

6098and response, and other specific measures to prevent pollution,

6107and a memorandum of agreement (MOA) between CF and the

6117Department that describes general design and construction BMPs.

6125The MOA has also been attached to the ERP. The BMP3 Plan, which

6138is updated annually, must be maintained on-site during mining

6147operations.

614863. Using these measures at the South Pasture mine, CF has

6159never had any issues with stormwater discharges causing water

6168quality violations.

617064. Petitioner failed to present any competent substantial

6178evidence that the Project will cause adverse water quality

6187impacts during mining. Its expert, Mr. Robert Burleson, opined

6196only that certain requirements specified for generic stormwater

6204permits associated with construction activities were missing

62113 0

6213from the SPPP. However, it is unclear whether he reviewed or

6224considered the sufficiency of the MOA or BMP3 Plan, and these

6235contain specific BMPs to be utilized for the Project's

6244stormwater. Additionally, Mr. Burleson admitted that he had no

6253familiarity with preparing SPPPs for industrial facilities with

6261NPDES permits. Dr. Durbin, a CF expert, who has such experience

6272and reviewed all of these materials as well as South Pasture

6283mine water quality data, opined that implementation of these

6292practices and the existence of the NPDES permit ensure that

6302water quality of downstream systems will be protected during

6311mining and that no adverse water quality impacts will occur.

6321The application is therefore consistent with applicable ERP

6329permitting requirements. The generic stormwater permit

6335proffered by Petitioner does not apply, and is not available, to

6346facilities like CF that are required to obtain individual NPDES

6356permits that address stormwater discharges. See Fla. Admin.

6364Code R. 62-620.100(2).

6367H. Ecological Issues

637065. The level of detail and analysis provided by CF in its

6382application to the Department for the ERP, CRP, and WRP and CRP

6394Modifications is more than adequate. Indeed, CF provided

6402substantially more baseline information in terms of existing

6410site conditions, wetland conditions, and wildlife information

6417than is provided in typical ERPs.

64233 1

642566. CF expert witnesses Dr. Kiefer and Dr. Durbin both

6435testified as to the local and regional ecological, hydrological,

6444and wildlife benefits expected to result from the proposed

6453reclamation. This testimony was not disputed.

645967. Pursuant to section 373.414(6)(b), wetlands

6465reclamation activities for phosphate mining undertaken pursuant

6472to chapter 378 are considered appropriate mitigation if they

6481maintain or improve the water quality and the function of the

6492biological systems present at the site prior to the commencement

6502of mining activities. CF's reclamation achieves that mitigation

6510goal. It provides for an acre-for-acre, type-for-type, and

6518foot-for-foot restoration, as appropriate, of the wetlands and

6526other surface waters proposed for impact on the Project site.

6536The application indicates that the proposed reclamation will

6544restore on-site wetland functions and promote the maturation of

6553on-site wetlands. Specifically, CF is proposing to enhance

6561126 acres of wetlands and 57 acres of uplands, create

6571approximately 1,711 acres of wetlands and other surface waters,

6581and grant perpetual conservation easements to permanently

6588preserve 1,095 acres of unmined (avoided) and 1,789 acres of

6600reclaimed habitat, including wetlands, streams, and associated

6607native upland habitat in the Brushy Creek, Lettis Creek, and

6617Troublesome Creek corridors on the Project. In addition, CF

6626will grant a perpetual conservation easement to permanently

66343 2

6636preserve an additional 915 acres of unmined wetland and native

6646upland habitat associated with the Horse Creek and Payne Creek

6656corridors in the South Pasture mine.

666268. Ultimately, the Project will represent a substantial

6670improvement in the Troublesome Creek headwater system, which has

6679been degraded by ditching. Based upon the uniform mitigation

6688assessment method analysis, the proposed mitigation plan will

6696more than offset proposed impacts, resulting in a net increase

6706in wetland functions on the Project site. While mining activity

6716is temporary, this "surplus" improvement will be permanent.

672469. CF considered the potential impacts to off-site

6732wetlands from the Project both during mining and after

6741reclamation, particularly those wetlands that straddle CF's

6748shared property boundary with Petitioner. Wetlands on

6755Petitioner's property are similar to nearby wetlands on the

6764Project site, in that historically they have been impacted by

6774agricultural activities, including ditching.

677870. None of Petitioner's experts provided testimony of

6786adverse impacts to wetlands or surface waters that would be

6796reasonably likely to occur as a result of the Project. In

6807contrast, Dr. Durbin testified that the wetlands on Petitioner's

6816property are degraded and dehydrated due to the prevalence of

6826agricultural alterations and that a modicum of additional water

6835might actually benefit them.

68393 3

684171. The application indicates that the proposed

6848reclamation will result in an overall water balance that is

6858consistent and compatible with the region's surface and sub-

6867surface hydrology, and the combined groundwater and surface

6875water outflow volumes from the Project site will be similar to

6886pre-mining conditions.

688872. As noted earlier, the proposed recharge ditch system

6897will maintain off-site water table levels within the normal

6906range of seasonal high and seasonal low values, which is the

6917range of fluctuation the water table level currently experiences

6926pursuant to the IMR. Therefore, no dewatering will occur that

6936will have an adverse ecological effect on Petitioner's wetlands.

6945Dr. Durbin and Dr. Kiefer opined that the improvement in

6955ecological conditions post-reclamation on the Project site can

6963reasonably be expected to improve the ecological condition of

6972the immediately adjacent wetlands on Petitioner's property.

697973. Petitioner's expert, Mr. Davis, opined that CF

6987failed to provide reasonable assurances that the Project would

6996not cause dewatering of wetlands on Petitioner's property. He

7005presented model results using those high permeabilities that

7013purported to show that, at some distance proximate to the

7023property boundary, some drawdown would occur with maximum

7031predicted drawdown approximately 80 feet or less from the

7040property boundary. However, Mr. Davis selected the high end of

70503 4

7052the range of the subsurface permeabilities estimated in the RMR

7062and assumed they were present continuously along the property

7071boundary. Although the highly permeable conditions are not

7079continuously present along the boundary line of Petitioner's

7087property, measures to address those conditions have been

7095identified and recommended, should they occur.

710174. Moreover, Mr. Davis' modeling did not use the existing

7111conditions established in the IMR as a baseline and did not

7122evaluate any of the mitigative options recommended in the RMR

7132for use if high permeability layers are encountered. Rather,

7141his modeling looked at only two scenarios that were not

7151recommended in the RMR in such cases, namely, the recharge ditch

7162alone, and charging the recharge ditch five feet above ground

7172surface. He admitted that the options recommended in the RMR

7182for high permeability subsurface conditions were all widely-used

7190options capable of being implemented. Mr. Davis' assertions

7198regarding the potential for a half-foot of drawdown near the

7208property line are based on a series of assumptions and

7218conditions which are not supported by competent substantial

7226evidence. Therefore, his testimony does not rebut the prima

7235facie case of CF and the Department regarding reasonable

7244assurances and is not credited.

724975. Mr. Palmer criticized the adequacy of the monitoring

7258contained in Specific Condition 14. However, he admitted that

72673 5

7269monitoring of the proposed piezometers would detect any water

7278table changes, and the ERP requires comparison against the

7287baseline data as well as long-term rainfall records. He also

7297acknowledged that he reviewed only a portion of the condition.

7307Thus, Mr. Palmer's criticisms are not credited.

731476. CF's reclamation also consists of a Stream Restoration

7323Plan (SRP). Implementation of the SRP will result in replacing

7333lower-functioning streams and lotic systems, like the ditched

7341headwaters of Troublesome Creek, with higher quality systems

7349post-mining pursuant to state reclamation requirements.

7355Dr. Kiefer opined that this is reasonably likely to result in

7366both localized and regional improvements to Troublesome Creek by

7375restoring its headwaters to a more natural condition. This

7384evidence was not refuted.

738877. Petitioner provided no testimony regarding the

7395ecological effect of the Project on Petitioner's wetlands and

7404water resources. FINR witnesses Burleson, Davis, and Palmer

7412claimed no expertise as ecologists. In fact, Mr. Davis admitted

7422that he normally provides his modeling reports to others with

7432expertise regarding whether a modeled water level drop could

7441actually be expected to cause harm. This was not done here.

7452There was no credible testimony that adverse environmental or

7461water resource impacts would result to Petitioner's property

7469from the Project.

74723 6

7474I. Materials

747678. CF has analyzed whether it will have sufficient

7485materials available to it to accomplish the objectives within

7494the CRP, and sufficient capacity in existing South Pasture mine

7504and proposed Project site CSAs to dispose of waste clays

7514generated by the phosphate matrix processing.

752079. For this purpose CF prepared a Life of Mine Backfill

7531Plan (LOMBP). The LOMBP describes how on-site materials will be

7541utilized by CF, during both mining and reclamation activities,

7550over the life of the mine.

755680. Based upon CF's calculations as reflected in the

7565LOMBP, information contained in the MPP, and testimony from CF's

7575expert witness, CF will have sufficient materials to achieve its

7585mining and reclamation objectives, and sufficient capacity to

7593dispose of waste clays in existing CSAs located on the South

7604Pasture mine and proposed CSAs on the Project site. CF will be

7616able to accomplish the mining and reclamation as proposed.

762581. Petitioner's expert, Mr. Palmer, opined that CF had

7634not provided reasonable assurances of sufficient overburden to

7642create the overburden soil slopes on mine faces discussed in the

7653RMR. For the following reasons, his testimony is not credited.

7663He admitted no experience with mining, dragline booms, how

7672draglines cast overburden, or how cast overburden slopes are

7681created, and he mistakenly assumed CF was limited in the

76913 7

7693transport of overburden to a distance of 330 feet, a figure not

7705supported by the record. Additionally, Mr. Palmer incorrectly

7713assumed that CF would be mining to an average depth of 73.3

7725feet, when in fact as reflected in the MPP, CF will be mining to

7739an average depth of 40.4 feet, which means the average

7749overburden thickness will be 18.9 feet, far greater than the

775911.5 feet he assumed in his calculations.

776682. On the other hand, CF witness Wuitschick testified

7775that there would be sufficient overburden to create the

7784overburden seals called for in the RMR. Mr. Blitch, a CF

7795employee with extensive mining experience and familiarity with

7803the Project, testified that transportation of overburden is not

7812limited to 330 feet and confirmed that CF will have more than

7824enough overburden to create the overburden slopes, which are

7833needed only along preserve and property boundaries and the

7842ability to move it where it is required.

7850J. Rules Requirements

785383. With respect to the ERP criteria contained in

7862section 373.413 and rule 40D-4.301, CF has demonstrated, by a

7872preponderance of the evidence, reasonable assurances that the

7880Project:

7881a. Will not cause adverse water quantity impacts to

7890receiving waters and adjacent lands.

78953 8

7897b. Will not cause adverse flooding to on-site or off-site

7907property.

7908c. Will not cause adverse impacts to existing surface

7917water storage and conveyance capabilities.

7922d. Will not adversely impact the value of functions

7931provided to fish and wildlife, and listed species

7939including aquatic and wetland dependent species, by

7946wetlands, other surface waters and other water related

7954resources.

7955e. Will not adversely affect the quality of receiving

7964waters such that the water quality standards will be

7973violated.

7974f. Will not cause adverse secondary impacts to the water

7984resources.

7985g. Will not adversely impact the maintenance of surface

7994or ground water levels or surface water flows.

8002h. Is capable, based on generally accepted engineering

8010and scientific principles, of being effectively

8016performed and of functioning as proposed.

8022i. Will be conducted by an entity with financial, legal,

8032and administrative capability of ensuring that the

8039activity will be undertaken in accordance with the

8047terms and conditions of the permit, if issued.

80553 9

805784. For the reasons expressed in Finding of Fact 64, a

8068contention by Petitioner that the SPE mine application must be

8078denied because CF failed to submit at hearing a separate

8088document entitled "Construction Surface Water Management Plan"

8095is rejected. This is because this requirement does not apply to

8106facilities like CF that are required to obtain individual NPDES

8116permits that address stormwater discharges. Assuming arguendo

8123that it did apply, the Southwest Florida Water Management

8132District Basis of Review for Environmental Resource Permit

8140Applications (BOR) criteria are designed to be flexible, and

8149other methods can be used to meet the rule objectives. Here,

8160CF submitted numerous reports and studies which have been

8169accepted as being the most persuasive on these issues, and

8179collectively they show that reasonable assurances have been

8187provided that all rule criteria have been satisfied.

819585. With respect to the additional public interest and

8204other criteria contained in section 373.414 and rule 40D-4.302

8213for the protection of water resources and which are applicable

8223to projects located "in, on, or over wetlands or other surface

8234waters," CF has provided, by a preponderance of the evidence,

8244reasonable assurances that the Project will:

8250a. Not adversely affect the public health, safety, or

8259welfare or the property of others.

82654 0

8267b. Not adversely affect the conservation of fish and

8276wildlife, including endangered or threatened species,

8282or their habitats.

8285c. Not adversely affect the flow of water.

8293d. Not adversely affect the fishing or recreational

8301values or marine productivity in the vicinity of the

8310activity.

8311e. Be temporary in nature.

8316f. Not adversely affect the current condition and

8324relative value of functions being performed by areas

8332affected by the Project.

8336g. Not cause unacceptable cumulative impacts.

8342h. Will maintain or improve the water quality and the

8352function of the biological systems present at the

8360Project site prior to the commencement of mining

8368activities.

836986. The primary goal of the BOR is to meet District water

8381resource objectives of ensuring that the permit will not

8390authorize activities that are harmful to water resources or

8399inconsistent with the public interest. As noted above, however,

8408the criteria are designed to be flexible, and other methods of

8419meeting those objectives will be considered. See BOR §§ 1.1 and

84301.3.

84314 1

843387. With respect to phosphate mining reclamation criteria

8441contained in chapter 378 and rule 62C-16.0051, CF has provided,

8451by a preponderance of the evidence, reasonable assurances that

8460the Project will meet the reclamation criteria contained in the

8470rule.

847188. The prima facie case provided by CF and the Department

8482at hearing of CF's entitlement to the ERP for the Project was

8494not successfully refuted, as discussed in the foregoing Findings

8503of Fact.

850589. The prima facie case provided by CF and the Department

8516at hearing of CF's entitlement to the CRP for the Project was

8528unrefuted. No evidence concerning the reclamation criteria was

8536presented by Petitioner.

853990. As set forth in the Order Granting the Motion to

8550Strike and Motion in Limine issued on February 16, 2012, the

8561Petition contained no factual allegations relative to the

8569compliance with applicable regulatory requirements regarding, or

8576potential for harm resulting from, the South Pasture

8584Modifications (as opposed to the ERP or CRP for the Project).

8595Therefore, the allegations relating to the South Pasture

8603Modifications were stricken. The prima facie case provided by

8612CF and the Department at hearing of CF's entitlement to the

8623associated WRP and CRP Modifications for the South Pasture mine

8633(South Pasture Modifications) was not refuted, and Petitioner

86414 2

8643made no proffer relative to the South Pasture Modifications

8652prior to the close of the evidentiary proceedings. The ruling

8662at hearing to receive in evidence the permit application and the

8673Department's proposed agency action on these two items is

8682reaffirmed.

8683CONCLUSIONS OF LAW

868691. Petitioner has standing to participate in this

8694proceeding. Although Petitioner did not prevail on the merits

8703of its claims, it presented evidence to prove that its

8713substantial interests could reasonably be expected to be

8721affected by the agency's action. See , e.g. , St. Johns

8730Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. ,

873954 So. 3d 1051, 1054 (Fla. 5th DCA 2011).

874892. Section 120.569(2)(p), as amended in 2011, is

8756applicable to this case. It establishes a new order of

8766presentation and burden of proof in permit challenge cases.

8775Permit cases under chapters 373, 378, and 403 now proceed in

8786three phases: Phase I is the submittal by the applicant and

8797agency of the application, notice of intent to approve the

8807permit, and other relevant material submitted to the agency

8816which constitute a prima facie case demonstrating entitlement to

8825the proposed permits; Phase II is the submittal by the

8835challenger of evidence supporting the challenge of the proposed

8844permits; and Phase III is the submittal by the applicant and

88554 3

8857agency of any rebuttal evidence demonstrating that the

8865application meets the conditions of issuance.

887193. The burden of proof in permit challenge cases is now

8882on the challenger, who has the "burden of ultimate persuasion

8892and has the burden of going forward to prove the case in

8904opposition to the [permit] by competent and substantial

8912evidence." § 120.569(2)(p), Fla. Stat.

891794. Section 120.569(2)(p) provides that CF can make a

8926prima facie case of entitlement to the permits by entering the

8937applications, materials supporting the applications, and the

8944proposed Department approvals. CF and the Department submitted

8952these materials and presented additional factual and expert

8960opinion testimony and evidence to supplement the prima facie

8969case.

897095. Because this is a de novo proceeding, and not merely a

8982review of the prior agency action, the parties may present

8992additional evidence not included in the permit application and

9001other documents previously submitted to the Department during

9009the permit application review process. See , e.g. , Hamilton

9017Cnty. Bd. of Cnty. Comm'rs v. State Dep't of Envtl. Reg. , 587

9029So. 2d 1378, 1387 (Fla. 1st DCA 1991); Fla. Dep't of Transp. v.

9042J.W.C. Co., Inc. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981).

9054Thus, what CF did or failed to do during the process of the

9067agency review of the applications is not the dispositive issue

90774 4

9079in these de novo proceedings. The dispositive issue is whether

9089the evidence presented at the hearing provides reasonable

9097assurance that CF's proposed activities on the Project site will

9107comply with applicable environmental and phosphate mine

9114reclamation standards. See McDonald v. Dep't of Banking and

9123Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977); Clarke v. Melton ,

9136Case No. 89-6051, 1990 Fla. ENV LEXIS 186 (Fla. DOAH Oct. 16,

91481990), adopted , OGC Case No. 89-1250 (Fla. DER Nov. 30, 1990);

9159Peace River/Manasota Reg. Water Supply Auth. v. IMC Phosphates

9168Co. , Case No. 03-0791, 2005 Fla. Div. Adm. Hear. LEXIS 736 (Fla.

9180DOAH May 9, 2005, R.O on Remand, June 16, 2005), adopted , OGC

9192Case No. 03-0205 (Fla. DEP July 31, 2006).

920096. Petitioner has failed to meet its burden of showing

9210that the permits should not be issued. Conversely, by a

9220preponderance of the evidence, CF has demonstrated that

9228reasonable assurances have been given that all applicable

9236permitting criteria have been met. Reasonable assurances means

"9244a substantial likelihood that the project will be successfully

9253implemented." See Metro. Dade Cnty. v. Coscan Fla., Inc. , 609

9263So. 2d 644, 648 (Fla. 3d DCA 1992). It does not require

9275absolute guarantees that the applicable conditions for issuance

9283of the permit have been satisfied. See , e.g. , Crystal Springs

9293Recreational Pres., Inc. v. S.W. Fla. Water Mgmt. Dist., Case

9303No. 99-1415, 2000 Fla. ENV LEXIS 41 at *98 (Fla. DOAH Jan. 27,

93164 5

93182000, SWFWMD Feb. 23, 2000). Speculations of future harm, of

9328what "might" occur, and a party's subjective beliefs, are not

9338sufficient to carry the burden of presenting contrary evidence

9347or to demonstrate material facts to support its claim. See

9357Chipola Basin Protective Grp., Inc. v. Dep't of Envtl. Reg. ,

9367Case No. 88-3355, 1988 Fla. Div. Adm. Hear. LEXIS 4765 (Fla.

9378DOAH Nov. 14, 1988), adopted , OGC Case No. 88-0587, 1988 Fla.

9389ENV LEXIS 112, (Fla. DER Dec. 30, 1988)(petitioner cannot carry

9399the burden of presenting contrary evidence by mere speculations

9408concerning what "might" occur). See also Hoffert v. St. Joe

9418Paper Co. , Case No. 89-5053, 1990 Fla. ENV LEXIS 194 (Fla. DOAH

9430Oct. 26, 1990), adopted , OGC Case No. 89-1304 (Fla. DER Dec. 6,

94421990); Menorah Manor, Inc. v. Agency for Health Care Admin. 908

9453So. 2d 1100, 1104 (Fla. 1st DCA 2005)(conclusory allegations of

9463speculative future harm are insufficient to demonstrate that a

9472party's substantial interest will be affected).

947897. In sum, a preponderance of competent substantial

9486evidence, including the entirety of the application, engineering

9494studies and reports, scientific testimony, and a voluminous

9502application, all support the Department's determination of

9509reasonable assurance of entitlement to the approvals at issue.

951898. Finally, as set forth in undersigned's Order Granting

9527CF's Motion in Limine and Motion to Strike, Petitioner's

9536assertions regarding Hardee County's quarter-mile setback

95424 6

9544requirement had no legal basis in any environmental factors that

9554are cognizable under the ERP or CRP permitting programs.

9563Nonetheless, as noted above, Petitioner offered no credible

9571evidence of adverse environmental or water resources impacts

9579that would occur to Petitioner's property as a result of mining

9590or reclamation within the footprint authorized by the ERP or

9600CRP.

9601RECOMMENDATION

9602Based on the foregoing Findings of Fact and Conclusions of

9612Law, it is

9615RECOMMENDED that the Department of Environmental Protection

9622enter a final order approving the applications of CF Industries,

9632Inc.

9633DONE AND ENTERED this 30th day of April, 2012, in

9643Tallahassee, Leon County, Florida.

9647S

9648D. R. ALEXANDER

9651Administrative Law Judge

9654Division of Administrative Hearings

9658The DeSoto Building

96611230 Apalachee Parkway

9664Tallahassee, Florida 32399-3060

9667(850) 488-9675

9669Fax Filing (850) 921-6847

9673www.doah.state.fl.us

9674Filed with the Clerk of the

9680Division of Administrative Hearings

9684this 30th day of April, 2012.

96904 7

9692ENDNOTE

96931/ On March 12, 2012, FINR filed a Petition for Writ of

9705Prohibition and/or Review of Non-Final Agency Order with the

9714First District Court of Appeal seeking a review of that Order.

9725See FINR II, Inc. v. CF Indus., Inc. , Case No. 1D12-1308. The

9737Petition for Writ of Prohibition was denied on March 14, 2012.

9748The Petition for Review of Non-Final Agency Order remains pending

9758as of the date of this Recommended Order.

9766COPIES FURNISHED:

9768Herschel T. Vinyard, Jr., Secretary

9773Department of Environmental Protection

97773900 Commonwealth Boulevard

9780Mail Station 35

9783Tallahassee, Florida 32399-3000

9786Thomas M. Beason, General Counsel

9791Department of Environmental Protection

97953900 Commonwealth Boulevard

9798Mail Station 35

9801Tallahassee, Florida 32399-3000

9804Lea Crandall, Agency Clerk

9808Department of Environmental Protection

98123900 Commonwealth Boulevard

9815Mail Station 35

9818Tallahassee, Florida 32399-3000

9821Edward P. de la Parte, Jr., Esquire

9828de la Parte & Gilbert, P.A.

9834Post Office Box 2350

9838Tampa, Florida 33601-2350

9841Frank E. Matthews, Esquire

9845Hopping Green & Sams, P.A.

9850Post Office Box 6526

9854Tallahassee, Florida 32314-6526

9857Brynna R. Ross, Esquire

9861Department of Environmental Protection

98653900 Commonwealth Boulevard

9868Mail Station 35

9871Tallahassee, Florida 32399-3000

98744 8

9876NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

9882All parties have the right to submit written exceptions within 15

9893days of the date of this Recommended Order. Any exceptions to

9904this Recommended Order should be filed with the agency that will

9915render a final order in this matter.

99224 9

Select the PDF icon to view the document.
PDF
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):