Monday, July 06, 2009

2d DCA Upholds Issuance of Permits to Phosphate Mine; Clarifies Standing and Cumulative Impact

Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, 34 Fla. L. Weekly D348 (Fla. 2d DCA 2009)

Charlotte County v. IMC Phosphate et al, 34 Fla. L. Weekly D357 (Fla. 2d DCA 2009)

In Peace River/Manasota Regional Water Supply Authority et al v. IMC Phosphate et al, the Court found that the users of waters below a proposed phosphate mine had standing to challenge the permit (well, duh). The Court also held that the DEP’s approach to dealing (or not dealing, from the petitioners' point of view) with cumulative impacts was legally justified, particularly by focusing on the statutory language regarding “adverse impacts” and the agency's authority to interpret the statute. The Court noted that reasonable assurences had to be made to address "adverse impacts" and not all impacts.

In Charlotte County et al v. IMC Phosphate et al, which involved the same permitting decision but different parties, the Court held that DEP did not violate Chapter 120 or due process by remanding the ALJ’s recommended order for additional findings regarding potential permit conditions. In effect, the DEP action allowed the applicant to add evidence regarding additional mitigation conditions that would allow the permit to be issued. The Court rejected the claims by Charlotte and Sarasota County that this action illegally gave IMC the opportunity to amend its application.
What is very interesting and critical in this decision is the Court’s recognition that under the permitting process, “The mining of phosphate is statutorily regulated, not because it is illegal, but rather to insure that the business may operate effectively without harming the public or the environment.” This is clearly true of almost any permitting process. The Court’s position is that this allows the agency to issue a permit under such terms as may comply with the statutory requirements, even if those terms are not all found in the initial application.
Critical to the decision was that DEP determined that the ALJ had misinterpreted and applied policy with the result that the relevant issues were not fully explored in the first hearing and order.

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