The Word Fair Should be Reserved for Weather

BRADENTON -- What is fair? There is perhaps no more pliable word in the English language. It would seem to imply that all of the information needed to execute judgement is in hand before an equitable decision is reached that respects the rule of law as well as the interests and rights of both parties. In this sense, it would seem to be interchangable with an approach that is inherently honest. But "fair" is often used as a crowbar to sway verdict, arouse criticism or promote prudence, which is why I only use it when referring to the weather. Recently, I was asked if my coverage of the Mosaic mine decision was fair. I'm not sure. But I do know that it was honest.

I believe most people are truthful when telling their story, yet reminded that everyone has an agenda, and when ulterior motives take the reins, one must speculate; might someone be lying to themselves to convince everyone else, or lying to everyone else to convince themselves. Regardless, the word fair becomes so aloft, so far-flung, one can only wonder, why use it at all.

My job is to cover a few of the local governments, report on environmental issues and occasionally write an opinion piece. Our local government is where the complicated issues that actually affect our lives are determined. It is where the sausage is made and that means; it's not always pretty. There are some tough decisions made by commissioners and council members, but those who have earned the public's trust sometimes need to be reminded personal agendas and or bias undermine the oath they made to those who put them there.

One day after lunch, two weeks back, I returned to the BOCC Chambers early to get a jump-start on my report. Commissioner Carol Whitmore was the only one there and called me over to where she sits. She said, "I asked Joe, (that would be Commissioner Joe McClash, the hands-off publisher to The Bradenton Times, my employer) how can you be fair?" I replied, "I have a hard time with that word Carol. I'm not sure what fair really means. But I do know that I am honest with what I report here." She asked how that can be.

Some history here: Almost four years ago I was involved in a lawsuit against Mosaic phosphate and Manatee County, to stop Mosaic from mining the Lambe Tract, in Duette where I live. Earth Justice represented my neighbors and me. We weren't asking for one dime, just that Mosaic not mine that environmentally sensitive area. Mosaic in turn sued Manatee County for $618 million, for not letting them continue with their approved permit. Our intentions; stop them from mining. After a year of back and forth decisions, Mosaic won. They now mine that area and last December, Mosaic dropped the $618 million suit against the county. This is why Commissioner Whitmore questions whether I should be writing about Mosaic's operations.

I write about environmental issues like offshore drilling, nuclear power, chemicals in water, exposure to heavy metals, pesticides and uranium. I have an opinion on them all. I strongly support civil rights, the clean water act and protecting manatees, but if my report is tainted by my view, wouldn't the complaint be with facts not fairness?

Retired athletes become sport commentators and generals from wars past serve as advisors, while they sit in front of a camera persuading public opinion, and they routinely have stock in the outcome. So when it comes to reporting, it should be the facts that are questioned, not the past experiences of the reporter.

So let's stick with facts and the misuse of them at the March 1 BOCC land use meeting, where Mosaic submitted a permit to mine what they are calling the Wingate Extension. It was a quasi-judicial hearing, where different rules apply than in legislative or public hearings. Those proceedings were to be closely monitored by the Presiding Officer (counsel for the governing body), whose duty is to follow the law.

The evidence, testimony and the manner by which that hearing was conducted failed to serve the people of Manatee County. What is important in a quasi-judicial land use hearing, is to be sure the decision makers have all of the appropriate evidence available. Competent substantial evidence is the only type of evidence that is appropriate to introduce and the only type that the decision makers can consider in coming to a verdict.

Anyone without competent substantial evidence to present has no grounds to participate. The presiding officer in this case, Bill Clague, the Manatee County attorney who monitored the legal boundaries in the hearing, made that point quite clear to those opposing Mosaic's request. But the same rules apply to the applicant, and anything that is presented into record that is not competent substantial evidence should have been removed and not considered by the decision makers, and in this case, I believe Clague failed his duty.

The applicant has the responsibility to meet the burden of proof, and that is done by submitting their evidence prior to the hearing, so that staff can validate the documentation. This helps governing council weed out the parcels of truth and inadequate submissions.

The implications of meeting or not meeting these burdens is that for all quasi-judicial land use reviews, if it is demonstrated that the application does not meet the standards, the permit must be denied. A number of statements made by the applicant during their presentation lacked any documentation to substantiate their claims. Clague's responsibility was to halt their testimony and stick to what could be properly documented.

Mosaic claims they are within the law, mining a parcel of land from the middle of the designated area being studied for the accumulative effects of phosphate mining. The Areawide Environmental Impact Statement (AEIS) ordered by the federal government to evaluate past, present and future effects includes what's called the Texaco tract, where the Wingate Extension is located.

The manufactured loophole Mosaic is using to carve out the parcel they intend to mine is constructed with innuendoes and contempt for the AEIS results. It seems Clague and staff also feel comfortable with a strategy that undermines the spirit of the federal order, a matter that was pointed out by a legal expert speaking in opposition.

False statements are reason enough to deny an application and on more than one occasion, questions from commissioners were answered with false testimony. Had Clague performed his due diligence, the precautionary measures needed to protect all waters south might have remained in place. His actions set the county up for another "Bert Harris Act" lawsuit, if for any reason the county declines Mosaic's request.

The most accurate tool available to recall what happened on 3/1/2012 in the BOCC Chambers is the video supplied by MGA-TV, and here is a direct link to that meeting. Below, I review just some of the false and misleading statements.

-- When Commissioner Whitmore asked Bart Arrington (Mosaic) "You can't wait for the study because you are running out of ore?" Arrington replied, "That's correct," and reinforced his reply, stating such hardships. Yet, Mosaic President and CEO Jim Prokopanko said in his 2nd quarter earnings call that "near-term supply of phosphate barges on the Mississippi River exceeded near-term demand."

Mosaic phosphate earning results: Q1 2012 -- US phosphate and potash producer, The Mosaic Co., saw its operating earnings soar by 78 percent to $729 million in fiscal Q1 2012, compared with $410 million in the same period last year. Net sales rose 41 percent from $2.2 billion in fiscal Q1 2011, to $3.1 billion for the same period ending 31 August ...

-- John Garlanger, Chief Engineer for Ardaman & Associates, representing Mosaic, said,"Mining in the Myakka River Watershed will have no adverse impact on surface water or ground water." He added, "I personally inspected surrounding waters of the Wingate Mine."

From the FDEP Water Quality Assessment for the State of Florida Section 305 (B) Main Report: "The phosphate and fertilizer industries generate major point and non-point pollution in several basins, and phosphate mining also creates hydrologic modifications in surface waters and land. Industrial discharges contribute about 10 percent to the total miles of impaired waters. "The picture at right is of the Mayakka River under Hwy. 64, just two miles from the Wingate mine, taken on the day before the Mosaic hearing. You can walk across. It's hard ground.

-- Commissioner DiSabatino asked Mosaic's engineer about the pollution from radioactive material emitting into the air and the effects it would have in the Winding Creek subdivision. He said, "there is a low potential for dust, fugitive or other dust, because it was a wet process and all of the movement of material is in pipes," adding, "the slurry is then shipped to the plant, and the radioactive material is code-positive with the phosphate, and goes offsite when the phosphate is shipped."

What he didn't say is that the plant it goes to is on property, at the connected Wingate mine, as are the clay settling ponds. As far as the radiation being code-positive with the phosphate and leaving, you might want to put that on the manufacturer safety data sheet, but not so fast, because there are areas previously mined that haven't been able to shake the radiation problem for over 20 years now.

Since 1994, the EPA has been struggling with levels of radium 50 to 100 times the acceptable limit in a community near Lakeland that was built on restored mining land, now a Superfund site, with an estimated cost of over $9 billion to clean it up. Trouble is, that is five times the Superfund's budget. When the EPA elected their new region 4 administrator and began fly-overs to gather data to address the problem, four mining-friendly legislators went to the courts to try and stop them. I guess all of the radiation doesn't leave with the phosphate.

-- Commissioner McClash struggled over and over to get both Bart Arrington and Dee Allen to quit misleading the commission by grouping the AEIS partners: EPA, ACOE, FDEP and others together when saying, "they have all signed off and permitted the project." At least four times this was said. The truth is, only the FDEP has given Mosaic preliminary approval. The EPA denies approving anything as does the ACOE. I spoke with John Fellows the AEIS project manager who said, "That is out of our jurisdiction" and that the ACOE only gave them a "Jurisdiction Determination." That document was constructed from reviewing a 2009 ACOE document that stated there were no "jurisdictional wetlands" in the parcel.

Mosaic used the, its not what we do, and interpreted it as a, we don't care what you do approval. Any lawyer should have jumped from their chair, if they were really overseeing the proceedings. If it wasn't for Commissioners DiSabatino, Gallen and McClash, and their quest for facts, this would have been a poorly-written comedy show. It was an insult to those who really take their oath seriously and the people they were sworn to protect. Some of the mumbo jumbo that was being used as explanations were on the level of "the dog ate my homework."

I could go on about how Mosiac's hired help tried to pawn off the idea that variances are for book keeping purposes only and the variances are provisions that let the lakes behave naturally, but it would be like fishing in a bucket. I have copies of more than 50 variances that I could easily translate their true meaning, as well as pictures of what has been left in their wake. But don't take my word for it, watch the video of the meeting, I am hoping the Florida Bar will.

I was happy to hear John Garlander, when Commissioner McClash asked, "where does the water go," reply, "80 to 90 percent of the water that's used in the mining process is consumed either by increased evaporation, or it is entrained in the clay." That was the most honest statement said all day, because reusing the plant wash-water, a second time, does not validate the, "We recycle 95 percent of our water" commercials, and Mosaic continues to pump 65 million gallons a day -- which is the important number. I guess that is why an Administrative Judge has just proposed to review Mosaic's complete Southwest Florida Water Management District water permit.

So, it might be a subjective matter as to whether I've been fair to Mosaic in this column, but again, I'm quite comfortable in asserting that I've been entirely honest. As for whether a government board comprised of several members who have taken financial contributions from Mosaic and its related interests have treated them in a fair fashion, I'd suspect Mosaic would feel that indeed they have. But whether taxpayers would believe that the process yielded an honest verdict that respected the rule of law might be another question.