As Polk County's phosphate mines are slowly depleted, the world's largest phosphate company is trying to move south.
By CRAIG PITTMAN
Published August 5, 2003
IMC Phosphates wants to open new mines and expand old ones in Manatee, DeSoto and Hardee counties - all along the Peace River, which flows into Charlotte Harbor.
Charlotte County officials, fearing the impact on the harbor's billion-dollar fishing, tourism and recreation industries, have filed a series of legal challenges.
Now, Charlotte has won an early round.
State regulators should turn down IMC's request to mine 2,300 acres known as the Altman Tract, just south of the Hillsborough County line, an administrative law judge said in a ruling made public Monday.
The reason: The mining would ruin 600 acres of wetlands that form the headwaters of Horse Creek, a major tributary of the Peace River.
That would destroy habitat for wildlife, particularly fish and wading birds, the judge said. IMC's plans to repair the damage are not good enough, he said.
This marks the first time any state official has ever said no to IMC, said Ed de la Parte, the Tampa lawyer representing Charlotte County.
"This permit denial is a notice to IMC and the mining industry that business as usual isn't going to work in Florida today," he said.
But IMC spokeswoman Diana Youmans pointed out that the ruling was not based on Charlotte's concerns about the downstream impact on Charlotte Harbor. Because the land is 51 miles north of Charlotte Harbor, the company contends that Charlotte has no legal standing to challenge its projects.
Although the judge did not recommend rejecting the permit on those grounds, he did say the state should get additional assurances from IMC that there will be no impact downstream.
The final decision is up to state environmental officials, and Youmans said her company believes it will ultimately prevail. "We're confident we can mine this tract," she said.
David Struhs, secretary of the state Department of Environmental Protection, must now decide whether to accept the findings in the 120-page ruling by Judge J. Lawrence Johnston.
DEP was ready to issue the Altman Tract mining permit in May 2002 until Charlotte County challenged it. Struhs can accept the judge's recommendation and deny the permit, or reject the recommendation and allow the mining to proceed anyway.
This marks the second ruling on one of Charlotte's legal challenges to IMC. Last year, when Charlotte lost its first legal challenge to a different IMC permit, Struhs hailed the ruling as a seal of approval for his agency: "The professionals at DEP have dedicated their careers to protecting the environment and their good faith efforts have been rewarded."
Struhs had no comment Monday on the Altman Tract decision, a spokeswoman said.
Testimony showed that one longtime IMC employee worked on the company's Altman Tract permit and then went to work for DEP, where he was assigned to the application, de la Parte said.
The judge found several flaws in the permit that DEP issued. He found that IMC would do little to spare Horse Creek from the impact of mining while it was going on. In fact, the mining would "adversely affect wetlands in adjoining areas."
He also found that when the mining was done, the new wetlands that IMC planned to rebuild would differ too much from the ones there now. The Altman Tract boasts a variety of wetlands, some shallow, some deeper. IMC plans to build just one big, deep wetland, the judge found.
The company offered evidence that it has rebuilt other wetlands it damaged by mining. But the evidence showed the new wetlands are not working as well as a natural swamp, "despite the fact that most of them have been in existence for more than 15 years," Johnston wrote.
Part of IMC's plan called for preserving some land from mining, but the judge noted, "It is clear from the evidence that IMC had no reasonable expectation that it would be allowed to mine the areas it is proposing for preservation."
The Altman Tract decision could signal bad news for IMC on its other, far larger mining projects, de la Parte said. The two sides are gearing up for trial in September on a permit DEP has approved for mining 23,000 acres in Hardee County. Waiting in the wings is another 24,000-acre parcel in DeSoto County that IMC has targeted.
But Youmans said the ruling will have no impact on any pending case.
IMC supplies one-fifth of the world's phosphate, with customers as far away as China and Australia. But the phosphate industry has been in a major slump, and IMC has not been immune. The company recently laid off 50 employees and its parent company reported a $6.9-million loss for the quarter that ended June 30.
In his ruling, the judge said IMC failed to give the state reasonable assurances that its finances are good enough to guarantee that it will be able to rebuild any wetlands that it destroys. A state fund to cover the costs of reclaiming phosphate mine lands is being drained by DEP's effort to deal with a fertilizer plant in Manatee County that went bankrupt.
- Information from the Ledger in Lakeland was used in this report.
