STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
D E P 0 5 - 0 0 6 4
IN RE:
Phosphoric Acid Fertilizer
OGC File No. 04-1590
SECOND AMENDED IMMEDIATE FINAL ORDER
Manufacturing
Facilities
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 4013-1.907 of the Florida Administrative Code, the Department of Environmental
Protection (Department), hereby makes findings of fact and conclusions of law, and enters this
Second Amended Immediate Final Order as follows:
FINDINGS OF FACT
l.
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, cumulative rainfall amounts in the second half of 2004,
including the rainfall associated with Hurricanes Charley, Frances, and Jeanne, some Facilities
are no longer capable of containing the run-off from a 25-year/24-hour storm. As a result,
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. This order was
subsequently amended on November 2, 2004, and will expire at 11:59 pm, January 10, 2005,
unless otherwise amended or extended.
3.
Review of the hydrological reports prepared by the Southwest Florida Water
Management District (District) indicates that in November 2004, the District's Central region
received an average of 1.59 inches of rain, which was classified as normal for the month of
November. Preliminary information indicates that rainfall for December will also be classified
as normal. However, the cumulative rainfall during the 12-month period ending at this time
for the Central Region averaged 68.72 inches. This cumulative annual rainfall amount was
16.06 inches above the yearly normal of 52.66 inches. This rainfall average is equivalent to
the 95th percentile of historical cumulative rainfall readings for the annual period and is
classified as "very wet." During the period beginning in early September through the end of
December 2004, eight of the thirteen phosphate chemical plants in Central Florida have
received greater than 20 inches of rain resulting in continued conditions with process water
inventories at must treat levels.
4.
The Facilities have utilized the provisions of this Order to maximize discharge
of treated process water and reduce process water inventory. However, eight of the thirteen
phosphate chemical plants in Central Florida still remain in the "must treat" status as of
January 7, 2005.
5.
Despite near normal rainfall during the most recent two months of November
and December, 2004, the cumulative rainfall amounts during the recent 12-month period have
resulted in continued unacceptably high process water levels at these facilities.
6.
Representatives of Mosaic Fertilizer, LLC and Mosaic Phosphates, MP, Inc.
(Mosaic) met with Department staff on January 7, 2005 to review water balances, current
process water consumption activities, and long-term plans to reduce process water inventories
to below must treat levels. At the time of these discussions, seven of the eight facilities
currently in must treat status are owned and/or operated by Mosaic. As a result of these
discussions, Mosaic has identified the need to continue discharges under this order from three
facilities in order to further reduce process water inventories to below must treat levels. These
facilities are identified as: •
FL0001589, Mosaic Bartow located at 3200 Highway 60 West,
Bartow, Florida
•
FL0000671, Mulberry located at 4000 Highway 60 East, Mulberry, Florida
•
FL0000752, Mosaic Green Bay located at 4390 CR 640 West, Bartow, Florida
7.
The Department has determined that the current water levels and the condition
of the dikes and berms due to heavy rainfall events at the three facilities identified in Paragraph
6 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.
8.
The Department is entering this Second 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
9.
The Department is empowered to administer and enforce chapters 373 and
403 of the Florida Statutes and the rules adopted thereunder.
10.
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 40D-1.907 that authorizes the issuance of
emergency orders under these conditions. Therefore, the Department has the authority to issue
this immediate final order.
ORDER
11.
This Order applies only to those three Facilities that are identified in
Paragraph 6 and which have water levels exceeding the "must treat" level as specified in
Chapter 62-672 of the Florida Administrative Code on the effective date of this Second
Amended Immediate Final Order. All references to "Facilities" hereafter are intended to apply
only to these Facilities.
12.
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. Discharges
authorized under this Second Amended Immediate Final Order are from the Green Bay facility
to the Alafia River watershed, and from the Bartow and Mulberry facilities to the Peace River
Watershed.
13.
During the effective period of this Second Amended Immediate Final
Order, Mosaic shall initiate weekly monitoring for Outfalls 003 and 004 located at Mosaac
Phosphates MP, Inc. Noralyn Mine (FL0000230):
•
Outfall 003, discharges to Six Mile Creek, then to the Peace River
•
Outfall 004, discharges to Barber Branch, then to the Peace River.
For the purposes of this Second Amended Immediate Order, discharges to the Peace River
through Outfalls 003 and 004, as described above and authorized under Paragraph 12, include
upstream discharges of treated process water from the Bartow and Mulberry facilities
identified in Paragraph 6 above.
14.
During the effective period of this Second Amended Immediate Final
• Order,
PeaceMosaic
River Upstream
location,
River atforBartow
60 crossing)
or near
shall initiate
weeklyPeace
monitoring
surface(Highway
water samples
for the at
locations
Latitudebelow:
N 27° 54'8.5", Longitude W 81' 49'3.4"
described
• Peace River Downstream location, Peace River at Fort Meade (Highway 98
crossing) at or near Latitude N 27° 45' 6.1 ", Longitude W 81 ° 46' 54.8"
•
Alafia River Downstream, Alafia River at Bell Shoals Road at or near Latitude N 27°
51' 26.4", Longitude W 82° 16' 9.2"
15.
The weekly monitoring under Paragraphs 13 and 14 shall commence within 7
calendar days of the effective date of this Second Amended Immediate Final Order and be
performed for the following parameters: arsenic, total phosphorus, orthophosphate,
nitrate/nitrite, TKN, total ammonia as N, fluoride, specific conductance, pH, and temperature.
The results shall be transmitted to the Department's Bureau of Mine Reclamation upon receipt
by Mosaic. Monitoring data that is generated in accordance with paragraphs 13 and 14 above,
shall be submitted as a separate report, independent of the reporting requirements per the
Noralyn Mine permit (FL0000230).
16.
Any Facility that discharges wastewater in accordance with Paragraph 12
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
beans of the system.
17.
Discharges under this Second Amended Immediate Final Order shall cease
upon notification from the Department. Furthermore, discharges of treated process wastewater
to the Alafia River, in accordance with Paragraph 12 above, shall cease if monitoring results
indicate that concentrations of nitrate from samples collected from the Alafia River at Bell
Shoals Road are 4 mg/L or greater. Discharges under this order may resume following
Department approval of results showing that nitrate levels have fallen below 4 mg/L.
18.
Facilities authorized to discharge treated process wastewater in accordance with
Paragraph 12 above shall continue to submit a weekly report on the status of implementation of
its Action Plan, previously submitted to the Department under the First Amended Immediate
Final Order, which includes 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.
19.
This Second Amended Immediate Final Order shall take effect at 11:59 pm,
January 10, 2005, and shall expire at 11:59 pm, February 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 / day of January, 2005.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
ALLAN BEDWELL
Deputy Secretary for Regulatory Programs
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000