DEP04-1762
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
IN RE:
Phosphoric Acid Fertilizer
Manufacturing Facilities
___________________________________/
OGC File No. 04-1590
FIRST AMENDED IMMEDIATE FINAL ORDER
Under sections 120.569(2)(n), 373.026(7), 373.119(2), and 373.119(3) of the
Florida Statutes, and rule 62-330.200(3)(b) of the Florida Administrative Code, which
incorporates by reference rule 40D-1.907 of the Florida Administrative Code, the
Department of Environmental Protection (Department), hereby makes findings of fact
and conclusions of law, and enters this First Amended Immediate Final Order as follows:
FINDINGS OF FACT
1.
Phosphate Fertilizer Manufacturing Facilities ("Facilities") are responsible
for phosphogypsum stack systems (Systems) whose operation or closure is permitted
under a Department Wastewater Facility Permit. The phosphogypsum stack systems
consist of the phosphogypsum stack(s), together with all pumps, piping, ditches, drainage
conveyances, water control structures, collection pools, cooling ponds, surge ponds and
any other collection or conveyance system associated with the transport of
phosphogypsum from the fertilizer manufacturing plant to the phosphogypsum stack, its
management at the stack, and the process wastewater return to the phosphoric acid
production or other process. The Systems hold process wastewater before the wastewater
is treated and released to various surface water bodies in this state. The Facilities are
required to have process wastewater containment systems designed pursuant to 40 CFR
418 to contain the run-off from the 25-year/24-hour storm event, which is approximately
8.5 inches of rain in Polk County.
2.
Due to heavy rain in the area and the effects of Hurricane Charley, several
Facilities were approaching the limits of their containment systems. Weather events
associated with Hurricanes Frances and Jeanne contributed significant additional rain,
with the result that some Facilities are no longer capable of containing the run-off from a
25-year/24-hour storm, and water levels in their containment systems now exceed the
"must treat" level specified in 40 CFR 418 and Chapter 62-672 of the Florida
Administrative Code. On September 10, 2004, the Department entered an Immediate
Final Order, OGC No. 04-1590, which is set to expire on November 9, 2004, unless
otherwise amended or extended.
3.
Review of the hydrological reports prepared by the Southwest Florida
Water Management District indicates that in September 2004, the Central Florida region
received an average of 14.25 inches of rainfall, which was 7.20 inches above the monthly
normal of 7.05 inches. This rainfall average is equivalent to the 97th percentile of
historical September readings and is classified as "very wet." However, some Facilities
had received greater than 20 inches of rainfall in the six-week period beginning early
September 2004 through mid October 2004, resulting in a dramatic increase in their
process water inventory.
4.
The Facilities have utilized the provisions of this Order to maximize
discharge of treated process water and reduce process inventory. However, nine of the
thirteen phosphate chemical plants in Central Florida still remain in the "must treat"
status as of October 27, 2004 because the rate at which they are able to discharge treated
process water has not been sufficient to handle the hurricane-generated rains.
5.
The Department has determined that the current water levels and the
condition of the dikes and berms due to heavy rainfall events at a number of the Facilities
create an imminent threat of a catastrophic release of untreated process wastewater if
immediate action is not taken to reduce the amount of wastewater being stored. A
catastrophic release of process wastewater from any of the Systems at these Facilities
could result in personal injury or severe property and environmental damage.
6.
The Department is entering this First Amended Immediate Final Order to
protect human health and safety and to protect the environment from a catastrophic
failure of the containment systems at the Facilities specified below.
CONCLUSIONS OF LAW
7.
The Department is empowered to administer and enforce chapters 373 and
403 of the Florida Statutes and the rules adopted thereunder.
8.
Under section 120.569(2)(n) of the Florida Statutes, the Department is
authorized to issue emergency orders when it determines that an immediate danger to the
public health, safety, or welfare requires an immediate final order. In addition, subsection
373.119(2) of the Florida Statutes directly authorizes a water management district, when
it finds that an emergency exists, to issue an order, without prior notice, reciting the
existence of such an emergency and requiring that such action be taken as the Executive
Director deems necessary to meet the emergency. Subsection 373.026(7) gives the
Department the authority to exercise any power under chapter 373 of the Florida Statutes
that may be exercised by a water management district. Under rule 62-330.200 (3) (b) of
the Florida Administrative Code, the Department has adopted, by reference, rule 40D1.907 that authorizes the issuance of emergency orders under these conditions. Therefore,
the Department has the authority to issue this immediate final order.
ORDER
9.
This Order applies only to those Facilities that had or have water levels
exceeding the "must treat" level specified in Chapter 62-672 of the Florida
Administrative Code during the period from October 27, 2004 through November 9,
2004. All references to "Facilities" hereafter are intended to apply only to these Facilities.
10.
Each Facility is hereby authorized to take immediate action as necessary
to continue the process of stabilizing all system dikes and berms to prevent a catastrophic
release of untreated wastewater, and to continue to treat and release wastewater from the
System so as to reduce the amount of wastewater below the "must treat" levels specified
in rule. All discharges shall be monitored in accordance with permit conditions, and the
discharge shall be treated with the "best available technology" as specified in 40 CFR
418.13, but such discharges shall not be subject to the effluent limits set forth in the
Facility's permit.
11.
Any Facility that discharges wastewater in accordance with Paragraph 10
above shall be required to meet the effluent limits set forth in its permit at such time as
the water levels with the system fall below the "must treat" level, or this Order expires,
whichever is earlier. All such Facilities shall provide daily written or oral reports to the
Phosphate Management Office of the Department on the progress of compliance with this
emergency order. The reports must include the most recent water levels and storage
capacities, rainfall, the amount of treated wastewater discharged, and any measures taken
to stabilize the dikes and berms of the system.
12.
No later than November 23, 2004, all Facilities shall submit an Action
Plan that will achieve process water inventory reductions to "Must Treat Level," "May
Treat Level" and "Action Level" status with associated timetables. Such Action Plan may
be an update to the site specific water management plan required by rule 62-672.780(8)
of the Florida Administrative Code, or may be a separate plan provided such plan is
based on the information contained in the site-specific water management plan. In
addition to the reporting requirements of paragraph 11 of this Order, each Facility shall
submit a weekly report on the status of implementation of its Action Plan to include the
following information:
a)
A summary of all activities performed thus far to minimize process water
inventory;
b)
The projected storage gain associated with each activity and the actual
storage gained at the end of each reporting period;
c)
Remaining storage volume to reach each "level" at the end of each
reporting period;
d)
Updated water balance for the Facility; and,
e)
The status of its contingency preparedness plan for emergency
management of process water to minimize harm to human health and the
environment.
13.
This First Amended Immediate Final Order shall take effect on November
9, 2004, and shall expire at 11:59 pm, January 10, 2005, unless modified or extended by
further order.
NOTICE OF RIGHTS
Any person substantially affected by this order has the right to seek judicial
review of it under section 120.68 of the Florida Statutes, by filing a notice of appeal
under rules 9.110 and 9.190 of the Florida Rules of Appellate Procedure, with the Clerk
of the Department in the Office of General Counsel, Mail Station 35, 3900
Commonwealth Boulevard, 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 thirty days after this order is
filed with the Clerk of the Department.
DONE AND ORDERED this 2nd day of November, 2004.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
ALLAN BEDWELL
Deputy Secretary for Regulatory Programs
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
(see pdf version for attachments)