Charlotte County v. Imc Phosphates Co.

• Decision Date: 10 February 2009
• Docket Number: No. 2D06-3848.,2D06-3848.
• Citation: 18 So.3d 1089
• Parties: CHARLOTTE COUNTY, Lee County, and Sarasota County, Appellants, v. IMC PHOSPHATES COMPANY and Department of Environmental Protection, Appellees.
• Court: Florida District Court of Appeals

18 So.3d 1089

CHARLOTTE COUNTY, Lee County, and Sarasota County, Appellants, v. IMC PHOSPHATES COMPANY and Department of Environmental Protection, Appellees.

No. 2D06-3848.

District Court of Appeal of Florida, Second District.

February 10, 2009.

Rehearing Denied March 4, 2009.

Stephen E. DeMarsh, County Attorney, and David M. Pearce, Assistant County Attorney, Sarasota, for Appellant Sarasota County.

Edward P. de la Parte, Jr., and David M. Caldevilla, Vivian Arenas, Charles R. Fletcher and Nicolas Q. Porter of de la Parte & Gilbert, P.A., Tampa, for Appellant Charlotte County.

David M. Owen, County Attorney, and Susan Henderson, Assistant County Attorney, Fort Myers, for Appellant Lee County.

Steven L. Brannock of Holland & Knight LLP, Tampa; Rory C. Ryan and Roger W. Sims of Holland & Knight LLP, Orlando; Robert L. Rhodes, Jr., of Holland & Knight LLP, Atlanta, Georgia; and Frank E. Matthews and Susan L. Stephens of Hopping Green & Sams, Tallahassee, for Appellee IMC Phosphates Company.

Francine M. Ffolkes, Administrative Law Counsel, and Justin G. Wolfe, Senior Assistant General Counsel, for Appellee Department of Environmental Protection.

DAVIS, Judge.

Charlotte County, Lee County, and Sarasota County (Appellants) challenge the final administrative order of the Department of Environmental Protection (DEP), which authorizes the issuance of various phosphate-mining permits to IMC Phosphates Company (IMC). We affirm the final order and the issuance of the permits but write only to address the propriety of the remand procedure employed in this case.

In April 2000, IMC applied to DEP for a phosphate-mining permit for its Ona Mine site, which consists of 20,625 acres of land located within the Peace River Basin. In April 2001, IMC further requested that the existing water resources permit for its nearby Ft. Green Mine be modified to allow IMC to dispose of waste clays from the Ona Mine at the Ft. Green Mine site. On January 17, 2003, DEP issued notices of its intent to approve the Ona Mine permit and the modification of the Ft. Green wetlands resource permit. Several parties, including Appellants, challenged the requested permit and modification. DEP then referred the challenges to the Administrative Law Judge (ALJ), and the challenges were consolidated into one case.

On September 12, 2003, DEP issued a final order in another IMC phosphate-mining permit case, denying several applications sought by IMC for mining phosphate on a piece of land known as the Altman Tract. After reviewing DEP's ruling in that case, IMC submitted an amended application for the Ona Mine permit and for the modification of the Ft. Green Mine permit. The amended application reduced the size of the tract of land encompassed by the permit from more than 20,000 acres to less than 5000 acres. This new site became known as the Ona-Ft. Green Extension. DEP subsequently issued new notices of its intent to issue the permits, and Appellants revised their challenges to the amended application.

In 2004, an eight-week administrative hearing was held. The ALJ issued his recommended order on May 9, 2005. In that order, the ALJ found that although IMC was "close to satisfying the permitting and approval criteria," there were deficiencies in the application that would require that the permit be denied. However, the ALJ also stated that he would recommend issuing the permit if IMC would amend its application to meet certain conditions. The ALJ then went on to spell out what specific conditions IMC would have to meet.

The opposing parties, including Appellants, filed exceptions to the ALJ's recommended order with DEP. Upon review of the recommended order and the exceptions, DEP concluded that in order to condition the issuance of the permit on the inclusion of the ALJ's recommended changes, additional findings of fact would be necessary. DEP also determined that certain of the ALJ's conclusions of law were erroneous and that in some instances he had applied departmental policy incorrectly. Accordingly, DEP ordered that the application be remanded to the ALJ for further proceedings. The limited remand order specifically directed the ALJ to make findings of fact related to the suggested additional conditions, including IMC's willingness and ability to meet the conditions, and to further review portions of his factual findings in light of the law and departmental policy as explained by DEP.

On remand, the ALJ held a second administrative hearing, allowing all parties to participate and present additional evidence. Following that hearing, the ALJ issued his recommended order on remand, which included additional findings of fact. Based on this order, DEP issued its final order authorizing the issuance of the requested permits. This final order is the subject of this appeal.

We begin by discussing the unique nature of 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. § 378.402, Fla. Stat. (2004). To that end, under chapter 120, Florida Statutes, when DEP issues a notice of intent to grant a phosphate-mining permit, interested parties may file their objections. DEP then refers the permit application and the objections to the Department of Administrative Hearings. An ALJ is assigned to review the application for statutory compliance and to consider the objections. In the course of the administrative hearing, the applicant may submit evidence to show compliance and the challengers are allowed to contradict or impeach that evidence by cross-examination and the presentation of their own evidence.

Following the hearing, the ALJ makes findings of fact in which he or she determines the sufficiency of the applicant's evidence and the credibility of the witnesses. Additionally, the ALJ must resolve any conflicts that the challengers' evidence might raise. The ALJ then issues a recommended order, which delineates in detail his or her factual findings and makes a determination as to whether the applicant has met its burden of showing compliance with the statutory requirements justifying the issuance of the permit.

Upon review, DEP may not reweigh the evidence and may reject the findings of fact only if the Secretary determines that the factual findings are not supported by competent, substantial evidence in the record. See § 120.57(1)(l), Fla....