MEMORANDUM

TO:                 LEE COUNTY ATTORNEYS AND STAFF
FROM:           Robert C. Apgar, Esquire
DATE:            November 17, 2003

Misrepresentations Of Fact, And Misleading Representations, By Corkscrew Mining Ventures, Ltd Undermine The Validity Of Their Current IPD. 

Corkscrew Mining Ventures, Ltd is also known as Westwind Corkscrew Mine, Corkscrew Mining and Excavating, Corkscrew Road Mining, Corkscrew 380 Mine, and Corkscrew Mine.

The Miners Misrepresented the Extent of Blasting Effects

The Hearing Examiner Record of the 2001 Hearing for the Corkscrew Mining Ventures IPD (Case DCI12000-00057, 29 Jul-03) cites the Blasting Expert saying the (shock wave) effects of blasting will only be 10 feet from each blast hole. He further states no structures will be damaged as a result of the mine’s blasting. In responding to questions asked by the Hearing Examiner specifying “the actual blast itself should not run another 200 feet to the property line or 1,000 feet down the road”, he states “this is correct”.

The hearing examiner record further states that Staff was not concerned about the permitting of blasting rather they were concerned with the “compatibility and potential detrimental impacts” from blasting. Their “concerns were alleviated after hearing the statements of Applicant’s blasting expert.”

It is clear that the County relied on the blasting expert’s misrepresentation in determining compatibility for approving this IPD, and this reliance was misplaced.  There is damage to the Schmidt home as result of the mine’s blasting. Photos show cracked tiles and brown tap water from the Schmidt well. The BoCC has heard other evidence regarding structural damage (beyond 10 feet from the blast hole) resulting from the effects of blasting.
 

The Miners Misrepresented the True Extent of Truck Traffic

The miner’s Traffic Impact Statement in their 2001 application states there would be only 142 truck loads per day (264 two way trips). This was amended in a November 15, 2001 letter, increasing truckloads to162 (324 two way trips). Evidence indicates that the mine may have been already exceeding these truck load numbers at the time the estimates were submitted.

The Westwind Corkscrew Mine’s May 2003 Volume and Fill Income Statement shows 676 truck loads (1352 two way trips) on May 21^st. The range for May is 342 to 676 truck loads (with one partial day of 105 trucks). The highest May truck volume is 4.76 times the original statements on which the county based its approval of the IPD. This is so significant that in a recent Staff Report Planning staff made the following statement: “Staff notes even with the previous zoning approval and related conditions, additional impacts potentially destructive to the character and integrity of the residential environment are occurring.”

There are 13 school bus stops along Corkscrew Road. Many residents have personal stories to tell about “near miss” accidents involving mining trucks in the residential areas. Traffic Safety Facts of the U.S. DOT indicate that large trucks account for 4% of all registered vehicles and 8% of all fatal crashes. Of these fatalities 79% were occupants of another vehicle. Most of the fatal crashes involving large trucks occurred in rural areas (67%), during daytime (67%) and on weekdays (80%). The current excessive volume of 80,000 lb trucks has damaged Corkscrew Road. Ruts from the excessive truck weights fill with rainwater and cause vehicles to hydroplane.

The economic public interest of Lee County is served by the Corkscrew Road route to CREW.  A Florida Fish and Wildlife report stated that tourists spend more money on bird watching than on golfing.  We believe that Lee County would not have issued a permit that would have endangered tourists on the main tourist route to CREW

However intentional or unintentional the misrepresentations may have been to obtain the 2001 issued IPD, the safety and welfare of the residents who reside off of Corkscrew Road and the tourists who visit CREW is compromised.
 

The Miners Misrepresented the Number of Occupied Residences on Surrounding Land

The permit holder made various statements (in the 1999 special exception hearing, the 2001 IPD hearing and accompanying application paperwork) about the lack of residences in surrounding lands. Despite the fact that the property appraiser’s records indicate where residences are located, the number, locations, and uses of these residences and surrounding lands were generally inaccurate.  In fact, there are 30 homes and about 85 residents living within a 1 mile radius of the mine.  The County’s determinations of consistency and compatibility were clearly based on inaccurate information provided by the miners.  It was the miners’ responsibility to provide accurate information. 
 

Environmental Impact Report

A review of all available Environment Impact Reports and statements reveals that the fact the mine site is panther habitat was never mentioned, nor taken into account in the design of the excavations. 

In an Environmental Report submitted to Lee County (Stamped Received Jun 23, 1999, Division of Development Services) the miner’s representative’s state they will conduct monthly water level monitoring in the Dry Season and Bi-Monthly water level monitoring in wet season, submitting these monitoring reports to SFWMD. This has not been accomplished, leaving Lee County with no data on which to determine whether the historic groundwater levels are being adversely effected by the mining activity (1999 to 2003).
 

It must be recognized that primary purpose of the recently withdrawn application was to change the purpose of the mine from excavation of fill dirt  to mining rock

The Miner’s application for the 2001 IPD represents that the primary purpose of the mine is to excavate fill dirt.  The Hearing Examiner Record notes the miner’s representative as saying “to break up the hard limestone (aka cap rock) which is being found on the site at various depths between 17 and 35 feet”. As well “they now find they need to do some blasting, although they don’t need to target the full 50-foot depth of material.”  The approved “master concept plan and proposed concept plan” explicitly states:  “It should be noted that only a small portion of the excavated material is forecast by the borings to need processing. Most material will be bank run fill material excavated, stockpiled and transloaded onto delivery trucks.”

However, other documents and public statements indicate that the miners wish to change the mining operation to a rock mine.  For example, documents downloaded from the permit holder’s website for its investors show that in May 2002 the miners were representing to potential investors that “The output of fill dirt, (which we originally planned on as the only one), was not as lucrative as expected due to a drop in market price.  In May of 2002, the company Westwind took over the operational mining side.  Westwind is one of the big limestone building firms of Southwest Florida and the Bahamas.  . . . Permission to blow up, mine and sell the rock has been granted for a depth of 50 feet.”  In recent testimony the mine’s current counsel stated:  “the changes are to an existing approved rock mine.”  These statements are in contrast to statements made in a recent letter to the FDEP by the mine’s current engineer “this is a sand mine only”.

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