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10/01/2008

New phosphate pact gives Mosaic an out

Published By: Charlotte Sun

Any challenge could end company's promises

The latest draft of a litigation settlement pact between Mosaic Fertilizer and Charlotte County gives Mosaic the right to opt out of its promises at any time if a "third party" challenges any of Mosaic's permits.

In fact, Mosaic could terminate the pact the moment it is signed, because Lee County in July challenged state permits for Mosaic's 16-square-mile South Fort Meade mine. The mine is located along the Peace River in Hardee County.

The proposed compact states Mosaic would have the right to terminate the deal "at any time during which Mosaic's permits are being challenged ... including, without limitation, the current permit challenge by Lee County and Sarasota County relating to Mosaic's South Ft. Meade permit."

Charlotte County Commissioner Tom Moore called that clause "objectionable."

He expressed disappointment because other provisions in the pact provide substantial protections for the Peace River that go beyond what state and federal agencies provide.

However, Moore added that the commission should not consider adopting the compact until after a new board is seated in late November. At least two commissioners, Moore and Tom D'Aprile, lost their re-election bids in the August Republican primary.

"I don't think at this stage, I'd be comfortable making a vote on phosphate," said Moore. "I just think the people that are going to live with (the agreement) should be there and should decide it.

"I think it is very involved, very emotional," he added. "There's no question people feel very strongly about this."

The draft compact was obtained by the Sun Tuesday afternoon under a public records request. The draft, dated Sept. 26, was delivered by Mosaic to County Attorney Janette Knowlton this week.

Knowlton, County Commissioner Richard Loftus and Mosaic general counsel Rich Mack had met Sept. 26 to negotiate the deal.

A year ago, Charlotte approved a pact that included Sarasota and Lee counties and the Peace River Manasota Regional Water Supply Authority. But those other entities opted not to sign.

The latest pact includes virtually the same provisions as the original except that Lee and Sarasota counties and the authority have been stricken from the bulk of the provisions.

Under the deal, Charlotte would agree to never oppose a phosphate mining permit. In exchange, Mosaic would conduct mining under higher standards that government agencies now require.

Knowlton declined comment on the pact Tuesday.

Richard Nelson, a retired litigation attorney who volunteers input to the county, pointed out the pact would give Mosaic the right to "unilaterally terminate the agreement."

"In effect, Mosaic is getting the old agreement, but it's even broader than the old agreement because it's bringing in unknown third parties," Nelson said. "That's all it would take to trigger Mosaic terminating it.

"So, it's a total joke," he added. "Any commissioner who signs that should be removed from office by recall."

"How does Charlotte County stop any other entity from challenging a phosphate mining permit?" asked Commissioner Tricia Duffy. "I don't know how we do that."

If Mosaic terminates the agreement, "there go all the water quality and quantity standards, which is unfortunate," she added.

Mosaic spokesman David Townsend declined comment, except to point out that negotiations are ongoing.

"It would be premature and inappropriate to address specific provisions of a draft document or speculate on the outcome of our discussions until they're concluded," he said.

Mosaic is also suing County Attorney Knowlton in circuit court. The suit seeks a judge's order to force the county to release transcripts of closed-door commission meetings held to discuss the compact.

Circuit Judge Keith Kyle has scheduled a hearing on the motion for 9 a.m. Oct. 10.

Phosphate Compact

The latest Phosphate Compact calls for Mosaic to:

  • take out a $50 million insurance policy against clay slime spills

  • build dams around clay pits with stricter standards

  • donate a site for a reservoir to the water authority within 20 years

  • keep mining out of the Peace River's 100-year flood plains

  • establish a monitoring program with water quality trigger levels

  • Mosaic would have the right to opt out if any other party sues

In exchange, Charlotte County would promise not to oppose or even comment to government agencies about mining impacts.

E-mail: gmartin@sun-herald.com

By GREG MARTIN

Staff Writer

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