Booker Creek Preservation, Inc. v. Mobil Chemical Co., BE-62

• Decision Date: 21 November 1985
• Docket Number: No. BE-62,BE-62
• Citation: 10 Fla. L. Weekly 2588,481 So.2d 10
• Parties: 10 Fla. L. Weekly 2588 BOOKER CREEK PRESERVATION, INC., Appellant, v. MOBIL CHEMICAL COMPANY, et al., Appellees.
• Court: Florida District Court of Appeals

Page 10

481 So.2d 10

10 Fla. L. Weekly 2588

BOOKER CREEK PRESERVATION, INC., Appellant, v. MOBIL CHEMICAL COMPANY, et al., Appellees.

No. BE-62.

District Court of Appeal of Florida,

First District.

Nov. 21, 1985.

Rehearing Denied Jan. 24, 1986.

Peter B. Belmont, St. Petersburg, for appellant.

Roger W. Sims, Lawrence E. Sellers, Jr., of Holland & Knight, Lakeland, and Charles G. Stephens, Asst. Gen. Counsel, Dept. of Environmental Regulation, Tallahassee, for appellees.

THOMPSON, Judge.

This is an appeal from a final order of the Department of Environmental Regulation (DER) granting water discharge permits for the South Fort Meade (SFM) phosphate mine which the appellee Mobil Chemical Company (Mobil) is planning to build. The appellant contends, inter alia, that DER erred in determining that the proposed SFM mine was not under department order to obtain a ground water permit and thus was an "existing installation" for purposes of determining the applicability of the ground water rule. The appellant further contends DER erred in concluding that Mobil had provided reasonable assurances that no subsurface anomalies existed in the ground beneath the mine site which might allow dispersion of polluted water in violation of the ground water rule. On cross-appeal the appellee contends that the appellant did not have standing to intervene in this action or to bring this appeal. We reverse with respect to the above-stated issues on appeal and affirm on cross-appeal.

Mobil plans to construct its new SFM mine adjacent to the Peace River in southern Polk County. This mine will replace a nearby existing mine where the phosphate reserves are or will soon be exhausted. The new mine will use the same ore refining processes that are currently being used at the old mine, which processes involve the use and to some extent the pollution of large quantities of water. It is expected that when the mine is in operation some 150 million gallons of water will circulate through it each day. It is further expected that almost 3 million gallons of water per day will be discharged into the ground at the mine site. It is undisputed that these discharged waters will not meet state water quality standards for fluorides, sulphates and total dissolved solids.

The primary discharge points for these polluted waters will be the areas beneath three huge waste product settling and storage ponds which will be located in the southeast corner of the mine site. Two of these waste storage ponds will hold clay slime, while the third will hold sand tailings. One of the clay slime ponds will be approximately 750 acres in size, while the other will cover some 500 acres. The sand tailings storage area will cover 400 acres.

In 1981 Mobil applied to DER for a surface water discharge permit and in 1982 Mobil filed an addendum to its application seeking approval to also discharge to ground waters. No separate ground water discharge permit application was filed, apparently on the strength of Rule 17-4.245(1)(a) F.A.C. which provides in part:

It is the intent of the Department whenever possible to incorporate ground water discharge considerations into other appropriate Department permits, and not to require a separate permit for ground water discharges....

In October 1983 DER notified Mobil of its intent to issue the requested water discharge permits. Appellant Booker Creek Preservation, Inc. (Booker) then filed a petition and an amended petition seeking a formal hearing pursuant to § 120.57(1), Fla.Stat. for the purpose of contesting DER's proposed issuance of the permits. Booker sought to intervene in this licensing proceeding pursuant to § 403.412(5), Fla.Stat., and did not allege or attempt to prove at the hearing that it or any of its members are neighboring landowners, are actual users of the Peace River, or are persons who have any specific interest which will or may be affected by Mobil's proposed water discharges.

While Mobil's application for a water discharge permit was being processed, DER also acted on Mobil's application for a permit to construct a dam around one of the slime ponds that it planned to build at the SFM mine. Booker objected and petitioned for an informal hearing pursuant to § 120.57(2), Fla.Stat., asserting that the dam construction permit should not be issued since Mobil's application therefor had not included data on potential ground water discharges and did not provide reasonable assurances that waters seeping out of the completed slime ponds would not violate ground water quality standards. In its June 1982 order finding that the construction permit should be issued, DER found that the question whether the dam construction permit should issue was not the same as the question whether a ground water discharge permit should issue, and stated that it was acting only on the dam construction permit. However, DER apparently recognized the legitimacy of the concerns expressed by Booker during the dam construction permitting proceedings, since in its order granting the dam construction permit it expressly provided that Mobil "shall, prior to beginning operations, obtain all appropriate...