Petitioners get legal scare in phosphate mine fight

BY VICTOR HULL

When Bill and Shirley Clark signed up for Charlotte County's battle against phosphate mining, they thought they were lending their names to an environmental cause, not volunteering as plaintiffs in a legal case.

A recent phone call from one of the state's top law firms, Holland & Knight, on behalf of the world's largest private phosphate producer, quickly told them otherwise.

Their presence was required for a two-hour deposition.

They would be subpoenaed and questioned separately about the petition they signed opposing the state's decision to grant IMC Phosphates an exemption from Florida water quality protection rules. "We took it as intimidation," said Clark, who with his wife, Shirley, lives in the Peace River waterfront subdivision of Harbour Heights in Charlotte County. Strip Mining Devastation

IMC said it was not trying to intimidate the Clarks or any of the 67 other people who had joined a challenge to the company's water quality rule exemption. Rather, a company spokeswoman said, the firm was trying to prepare its case for a Dec. 15 hearing before a state administrative law judge.

Still, many of the people contacted by IMC's legal team were surprised and alarmed by talk of subpoenas and depositions.

"That gave pause to most people," said Harbour Heights Civic Association president Chuck Sayre.

On Friday, IMC decided to quit the fight, withdrawing its request for the water quality waiver from the state Department of Environmental Protection. The withdrawal sets the stage for a judge to cancel the Dec. 15 hearing.

The decision means several dozen private citizens won't get a crash course in the complexities of Florida's administrative law, which allows citizens to challenge government agency decisions in a trial-like process. But it also leaves unresolved a key issue in IMC's controversial bid to get state permission for a strip mine on about 20,675 acres near the Peace River in Hardee County.

Speedy approval

IMC requested the water quality exemption so it could leave behind a series of deep lakes when it's done mining the land between Wauchula and the Manatee County line. The deep lakes would not meet the state water quality standards for the minimum level of dissolved oxygen.

The DEP granted the exemption, or variance, with surprising speed, approving it in just nine days last August. The exemption was granted several months after the agency announced its approval of IMC's plan for the mine, known as Ona.

Charlotte County, a regional water utility, environmentalists, and the residents challenging the water quality exemption opposed it on the grounds that the low oxygen levels could promote harmful algae growth and kill fish.

They also oppose the mine itself, arguing that the strip mining could pollute and disrupt flows in the Peace River, a drinking water source and tributary to Charlotte Harbor, the economic and aesthetic focal point for Charlotte County.

By e-mail, Charlotte County's legal team solicited support from individual citizens to bolster its case against the water quality exemption. Both the citizens and the lawyers figured Charlotte would take the lead in the case.

They didn't count on a judge splitting the legal challenge on the water quality issue, with a hearing for the individuals set for next month and the challenge by Charlotte County delayed until early next year, said Honey Rand, Charlotte's phosphate spokeswoman.

Rand and one of Charlotte's phosphate lawyers met last week with the residents, most of whom are from Harbour Heights, and promised them legal assistance.

"We asked them to hang tough," said Rand, who criticized IMC's approach as too aggressive. "It's one thing to exercise your right to question people, but it's another when it's clearly designed to intimidate people, as this was."

IMC spokeswoman Diana Youmans rebutted that conclusion, saying it's standard legal procedure to contact participants for depositions before a hearing.

"None of our legal team would intend to be threatening to anyone," she said. "Perhaps the citizens that signed up for the petition didn't understand what due process is in these kinds of hearings."

She said IMC dropped the water quality fight because the DEP is reassessing its decision to permit the Ona mine. That re-evaluation, expected to continue several more weeks, could affect the need for a water quality exemption.

A hearing on challenges to the mine permit is scheduled for February, but it may be delayed until May.

Clark, who moved from Englewood to Harbour Heights about two years ago, said he was prepared to testify against IMC's water quality exemption because he wants to protect the Peace River as a drinking water source and for boating and fishing.

"Everyone in Charlotte County ought to be worried about it," Clark said. "It's an enormous potential problem."

Before IMC dropped its request for the variance, two individuals withdrew their petitions. Sayre, the civic association president, said he heard that several more were ready to do so after the calls from Holland & Knight.

But many others were ready to proceed.

"We love this river," said Barbara Graettinger, a civic association member who helped organize the opposition. "It's a beautiful, beautiful river. If we don't protect it, who will?"

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