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Challenges to Environmental Permits: A Case Study Susan L. Stephens Holland & Knight LLP.

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Presentation on theme: "Challenges to Environmental Permits: A Case Study Susan L. Stephens Holland & Knight LLP."— Presentation transcript:

1 Challenges to Environmental Permits: A Case Study Susan L. Stephens Holland & Knight LLP

2 The Phosphate Industry “Bone Valley” phosphate deposits: Central Florida’s got ‘em: mine where the rock is Two main components of the industry: Phosphate rock mining/beneficiation Fertilizer/phosphoric acid manufacturing Phosphate rock uses: Primarily fertilizer for food production Other household products (phosphoric acid): medicines, colas, china

3 Major permits needed from DEP Phosphate mining/beneficiation Environmental resource permits (or predecessor if grandfathered): DEP BMR –Impacts to wetlands and surface waters –Secondary impacts to key upland habitat for wetland- dependent species Conceptual reclamation plan approval: DEP BMR –Does not authorize mining –Needed prior to beginning reclamation –CRP sets out plan for reclaiming the wetlands and uplands on the entire mined site

4 Challenges to IMC Phosphate Permits Proposed permit(s) issued by BMR and challenged by Charlotte County and others in Charlotte Harbor/Sarasota region: Rounds 1 and 2: –ERP: Manson Jenkins Tract To mine 361 acres wetlands/surface waters and 1988.1 acres uplands Reclamation plan: 537.8 acres wetlands/surface waters. 1811.3 acres uplands Outcome: Final Order issuing the ERP 11/02, one minor permit change, affirmed per curiam by First DCA –ERP/CRP: Altman Tract To mine 638.6 acres wetlands/surface waters and 1534.9 acres uplands Reclamation plan: 788.4 wetlands/surface waters reclaimed, 78.4 acres wetlands/surface waters preserved, 1410.1 acres uplands reclaimed Outcome: Final order denying the ERP and CRP 9/03, currently on appeal to the Second DCA

5 Round Three –ERP/CRP/WRP Modification: Ona Mine—Fort Green Extension Tract To mine 263 acres wetlands/surface waters and 3213 acres uplands To modify a wetland resource permit for the adjacent Fort Green Mine to relocate certain mitigation wetlands there to support the mining activities. Reclamation plan: 322 acres of wetlands, 10,141 feet of streams, 8 acres cattle ponds; 1769 acres upland habitats Preservation: 339 acres wetlands/surface waters, 382 acres upland habitats Outcome: Proposed recommended orders submitted to ALJ on September 20, 2004.

6 The IMC Ona Permits Challenged In the IMC Ona case, there were two separate notices of intent and draft permits issued for the ERP/CRP and WRP Mod, originally in January 2003 and again, after a DEP reassessment of the Ona Mine project following the final order denying the Altman Tract permit, in February 2004.

7 Initial Petitions: Ona Case Petition(s) filed with DEP The players: –Petitioners: Charlotte County Peace River/Manasota Regional Water Supply Authority Hardee County (voluntarily dismissed) Manasota-88 / ECOSWF (involuntarily dismissed) DCAP/Behrens Sarasota County –Intervenor: Lee County –Respondents: IMC Phosphates Company Florida Department of Environmental Protection

8 Initial procedures Petition(s) referred to DOAH/request for ALJ assignment –“Substantial interests” standing: Chapter 120 –Verified petition to “intervene” under 403.412(5): allegation that the activity to be permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state

9 Procedures After Referral Initial Order: requests information in order to set hearing, determine what petitions to consolidate Motions to Dismiss –ECOSWF and Manasota-88 filed petitions in order to challenge the constitutionality of new revisions to s. 403.412(5) governing citizen standing. They were dismissed and then appealed. Appeal still ongoing in the First DCA, but likely to be dismissed soon as moot. –Hardee County voluntarily dismissed. Amended Petitions filed as of right following first dismissal Order to Consolidate Notice of Hearing –Ona final hearing rescheduled many times; multiple notices in this case –Finally set for hearing beginning May 10, 2004 Prehearing Order: Sets deadlines and procedures for discovery, prehearing conferences, exchanging witness and exhibit lists, governing site visits, conduct of depositions, and prehearing stipulation contents. Lots!

10 Ona Discovery Discovery: standard rules of discovery apply –Depositions: About 150 depositions taken before hearing (all duces tecum) 4 standing depositions taken in lieu of live testimony at hearing Including 1.310(b)(6), standing, expert, and fact depositions Testifying witnesses, particularly experts, were deposed at least twice, sometimes more. –Requests for production of documents and things Production of portions GIS computer database on CD 13 requests for production of documents and things served –Requests for inspection of property/things Multiple visits by Petitioners to the property to be mined and reclaimed Visits to other IMC reclaimed sites Three Inspections of IMC’s GIS computer database

11 Discovery cont’d Interrogatories –12 sets of interrogatories served Requests for admission –11 requests for admission served Many motions to compel discovery, compel more definition responses, for sanctions, for protective orders, etc., etc. Many telephonic hearings on such motions

12 Prehearing procedures cont’d Motion Practice –Motions To Compel Discovery/Discovery Sanctions –Motions To Enforce Prehearing Order –Motions To Strike/In Limine –Motions for Protective Order –Motions to Dismiss/Relinquish Jurisdiction –Motions for Attorneys Fees –Requests for Official Recognition Prehearing Stipulation –Witnesses –Exhibits –Evidentiary rulings/applicability –Matters agreed upon/still in dispute –Motions Outstanding –Statements of Position

13 Finally: the hearing Administrative Hearing –May 10 through June 18 (including most Saturdays): cases in chief –Many preliminary motions in limine addressed at hearing; briefs subsequently filed to support some –Applicant (IMC: respondent) 5 lawyers Fact witnesses: 2 Expert witnesses: 12 1000s of exhibits, documents –Agency witnesses (DEP: co-respondent) 2 lawyers Expert witnesses: 7 84 exhibits (multi-page) –Petitioner witnesses (Charlotte County, Authority) 6 lawyers + Expert witnesses: 15 1000s of exhibits, documents –Other petitioners: standing evidence only

14 Hearing cont’d Rebuttal: Applicant/agency: As of right –Initial rebuttal case began June 17-18 –Rebuttal/surrebuttal case reconvened July 10, 12-13 IMC rebuttal: –4 witnesses –46 exhibits –Primary purpose: Evidence to support changed permit conditions DEP rebuttal: –3 witnesses Surrebuttal: allowed strictly to address changed permit conditions Sur-surrebuttal (limited): IMC waived

15 Post-hearing submittals Petitioners submitted several volumes of evidence to support excluded arguments Proposed recommended orders originally due August 31 Two hurricanes intervened PROs filed September 20 –IMC: 2 PROs totaling approx. 200 pp, plus motion to strike testimony –DEP: 2 PROs totaling approx. 150 pp, plus proposed preliminary statement –Charlotte/Lee: 1 joint PRO totaling 449 pp, plus response to earlier IMC evidentiary brief –Authority: 1 PRO totaling 225 pp, plus post hearing memo of law totaling 74 pp

16 What comes next? Issuance of Recommended Order with specific rulings on proposed findings of fact Specific exceptions to findings of fact/conclusions of law may be filed within 10 days of RO Issuance of Final Order by DEP Secretary Appeal to First or Second DCA If denial: try, try again

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