The Department of Environmental Protection (Department) gives notice of its intent to issue a variance (File No. 0095520-007-EV, OGC No. 07-0550) to Mosaic Fertilizer, L.L.C., Post Office Box 2000, Mulberry, Florida 33860-1100, under Sections 373.414(17) and 403.201(1)(a), Florida Statutes (F.S.), from the provisions of Rule 62-302.530, Florida Administrative Code (F.A.C), which provides minimum standards for dissolved oxygen levels in surface waters. This variance will apply to dissolved oxygen levels in the hypolimnion (the deepest layer) in the reclaimed pit impoundments proposed in the Conceptual Reclamation Plan (MOS-WC-CPD) and Wetland Resource/Environmental Resource Permit modification no. 0095520-006.

The Department’s file on this matter is available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at the Florida Department of Environmental Protection, Bureau of Mine Reclamation, 2051 East Dirac Drive, Tallahassee, Florida 32310-3760, (850)488‑8217.

On November 15, 2004, Mosaic Fertilizer, L.L.C. applied for a conceptual reclamation plan modification (MOS-WC-CPD) for the Wingate Creek Mine. On August 5, 2005, a Wetland Resource/Environmental Resource permit modification (application No. 0095520-006) was received. The post reclamation plan proposed for the application area includes two (2) pit impoundments totaling approximately 193.8 acres to be created in areas previously mined for phosphate. On February 2, 2007, Mosaic Fertilizer, L.L.C. submitted a petition for a variance, under Sections 373.414(17) and 403.201(1)(a), Florida Statutes (F.S.), from the provisions of subsection 62-302.530(31), F.A.C., which provides minimum standards for dissolved oxygen levels in surface waters.

The dissolved oxygen levels in the hypolimnion of the pit impoundments are expected to drop below the mandatory minimum of 5.0 mg/l at times. Stratification and the associated reduction of dissolved oxygen in the hypolimnion are natural phenomena in deep-water bodies, especially during warmer parts of the year. This condition is well documented in the limnological literature and recognized in Section 373.414(6)(a), F.S., which states, “The Legislature recognizes that some mining activities that may occur in waters of the state must leave a deep pit as part of the reclamation. Such deep pits may not meet the established water quality standard for dissolved oxygen below the surficial layers. Where such mining activities otherwise meet the permitting criteria contained in this section, such activities may be eligible for a variance from the established water quality standard for dissolved oxygen within the lower layers of the reclaimed pit.”

The low dissolved oxygen levels in the hypolimnion of the pit impoundments are not expected to result in any on-site or off-site impacts. Oxygen levels in the upper layers of the pit impoundments are expected to meet the requirements of Rule 62-302.530, F.A.C., and be adequate to support healthy fish populations. Existing pit impoundments on lands previously mined for phosphate support healthy populations of fish. Several reclaimed pit impoundments are currently being managed by the Florida Fish and Wildlife Conservation Commission to provide the public recreational fishing opportunities. Once reclamation is completed, the pit impoundments will be connected to reclaimed and/or preserved wetlands and streams. Water exiting these pit impoundments is expected to meet the requirements for dissolved oxygen and other water quality criteria of Rule 62-302.530, F.A.C. The water will exit from the upper surface of the pit impoundments and will flow through shallow conveyances that will provide further aeration.

There is no practicable means known or available to achieve the required dissolved oxygen levels within the hypolimnion in the reclaimed pit impoundments. Therefore, the Department intends to issue a variance pursuant to Section 403.201(1)(a), F.S., for dissolved oxygen within the hypolimnion in the reclaimed pit impoundments.

Wingate Creek Mine is located in Manatee County, Sections 19, 20, 21, 28, 29, 30 and 31, Township 34 South, Range 22 East and Sections 1 and 6, Township 35 South, Range 22 East. Wetlands and waters of the state proposed to be impacted are associated with Johnson Creek and Wingate Creek, a tributary to the Myakka River, all Class III waters, designated to support the recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife. Additionally, the mine is upstream of the Beker Tract, a designated Outstanding Florida Water.

Under this intent to issue, this variance is hereby granted subject to the applicant’s compliance with any requirement in this intent to publish notice of this intent in a newspaper of general circulation and to provide proof of such publication in accordance with Section 50.051, Florida Statutes. This action is final and effective on the date filed with the Clerk of the Department unless a sufficient petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, Florida Statutes as provided below. If a sufficient petition for an administrative hearing is timely filed, this intent to issue automatically becomes only proposed agency action on the application, subject to the result of the administrative review process. Therefore, on the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. When proof of publication is provided, if required by this intent, and if a sufficient petition is not timely filed, the variance will be issued as a ministerial action. Because an administrative hearing may result in the reversal or substantial modification of this action, the applicant is advised not to commence construction or other activities until the deadlines noted below for filing a petition for an administrative hearing or request for an extension of time have expired and until the variance has been executed and delivered. Mediation is not available.

A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, Florida Statutes. The petition must contain the information set forth below and must be filed (received by the clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.

Under subsection 62-110.106(4), Florida Administrative Code, a person whose substantial interests are affected by the Department’s action may also request an extension of time to file a petition for an administrative hearing. The Department may, for good cause shown, grant the request for an extension of time. Requests for extension of time must be filed with the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon. If a request is filed late, the Department may still grant it upon a motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable neglect.

If a timely and sufficient petition for an administrative hearing is filed, other persons whose substantial interests will be affected by the outcome of the administrative process have the right to petition to intervene in the proceeding.  Intervention will be permitted only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, Florida Administrative Code.

In accordance with Section 373.414(17) and 403.201, F.S., petitions for an administrative hearing by the applicant must be filed within 14 days of receipt of this written notice. Petitions filed by any persons other than the applicant, and other than those entitled to written notice under Section 120.60(3), Florida Statutes, must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. Under Section 120.60(3), Florida Statutes, however, any person who has asked the Department for notice of agency action may file a petition within 14 days of receipt of such notice, regardless of the date of publication.

The petitioner shall mail a copy of the petition to the applicant at the address indicated above at the time of filing.  The failure of any person to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that person’s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, Florida Statutes.

A petition that disputes the material facts on which the Department’s action is based must contain the following information:

(a) The name and address of each agency affected and each agency’s file or identification number, if known;

(b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests are or will be affected by the agency determination;

(c) A statement of when and how the petitioner received notice of the agency decision;

(d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate;

(e) A concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency’s proposed action;

(f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action; and

(g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agency’s proposed action.

A petition that does not dispute the material facts on which the Department’s action is based shall state that no such facts are in dispute and otherwise shall contain the same information as set forth above, as required by Rule 28-106.301, Florida Administrative Code. Under Sections 120.569(2)(c) and (d), Florida Statutes, a petition for administrative hearing must be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed.

This intent to issue a variance constitutes an order of the Department. Subject to the provisions of Section 120.68(7)(a), Florida Statutes, which may require a remand for an administrative hearing, the applicant has the right to seek judicial review of the order under Section 120.68, Florida Statutes, by the filing of a notice of appeal under rule 9.110 of the Florida Rules of Appellate Procedure with: the Clerk, Department in the Office of General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399‑3000; and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within 30 days from the date when the order is filed with the Clerk of the Department.