DEP03-0431
BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In re:
EMERGENCY AUTHORIZATION TO THE
RECEIVER ALLOWING FOR CONSTRUCTION
OF A PIPELINE TO TRANSFER TREATED
PROCESS WASTEWATER FROM THE
PINEY POINT, INC. PLANT SITE TO PORT
MANATEE
CASE NO. 03-0839
EMERGENCY FINAL ORDER
Under Sections 120.569(2)(n), 373.026(7), and 373.119(2) of the Florida Statutes,
the State of Florida Department of Environmental Protection (".Department") enters the
following Emergency Final Order, including findings of fact and conclusions of law, to
address the imminent threat of a catastrophic spill of untreated water from the
phosphogypsum stack system and cooling ponds of Piney Point Phosphates, Inc. This
order authorizes the Receiver (Mr. Louis Timchak, Jr.), appointed by the Manatee County
circuit court to manage environmental risks at the Piney Point Phosphates, Inc. (Piney
Point) phosphogypsum stack system, including cooling ponds, phosphogypsum stack,
and ditches (System), and his representatives, to implement the activities specified herein.
DEFINITIONS
The terms used in the Order are those defined generally in Title 62 of the Florida
Administrative Code (F.A.C.).
FINDINGS OF FACT
1. Piney Point is located on U. S. Highway 41 North in Palmetto, Florida. Piney
Point is an inactive phosphatic fertilizer chemical processing plant. Piney Point has been
shut down since December 1999. On February 1, 2001, Piney Point Phosphates, Inc.,
notified the Department that it had no money and could no longer maintain the facility.
To prevent an environmental catastrophe, on February 7, 2001, the U.S. Environmental
Protection Agency assumed responsibility for the environmental security at the facility
until transferring that role to the Department on February 21, 2001. On February 8, 2001,
Piney Point Phosphates, Inc. filed for bankruptcy protection under Chapter 11, Title 11 of
the United States Code. On April 18, 2001, the Manatee County Court appointed the
Receiver over the Piney Point System. The Receiver was assigned the responsibility of
managing the environmental risk at Piney Point.
2. Piney Point experienced heavy rainfall in December 2002, causing storage
levels to fall such that only another 2.7 inches of rain could be accommodated before the
storage ponds exceeded their design levels. The 16.5 inches of rain in December
exceeded historical records in the area, and statistically are considered a one-infivehundred year event. Prior to the December rains the site Receiver had initiated
activities to close the phosphogypsum stacks, which included the draining and dewatering of one of the four stack compartments in preparation for installation of a
synthetic liner. The Department issued a modification to Emergency Order 02-1054 on
December 26, 2002, which authorized the emergency discharge of double-limed and
aerated water in an effort to preserve this closure work. However, on December 31, 2003,
the site received 6.5 inches of rain, necessitating re-flooding of the stack compartment to
provide storage capacity, and resulted in the cessation of closure activities. Piney Point
currently has over 1.4 billion gallons of acidic process water stored within the Piney
Point System.
3. The site Engineer for Piney Point has recalculated needed water consumption
for the year, considering the rainfall received in December 2002, and assuming continued
El Nino weather patterns through March, and wetter then normal rainfall conditions for
the remainder of the year. A minimum 484 million gallon consumption volume is needed
between February 1 through November 30, 2003, to ensure that water levels will be at or
below the design levels throughout the rainy season, with enough storage to
accommodate a tropical storm. This would require a consumption of 1.5 million gallons
per day from April 1 through November 30, 2003. With this volume of consumption
sufficient storage should be available such that there is high likelihood that one of the
four compartments could be closed after the hurricane season. Under this scenario closure
of all stacks would be completed by June of 2009. However, this long closure
a time
increases the likelihood of future emergencies. Therefore, the Engineer has recommended
that 700 million gallons be consumed from February through November 2003 to ensure
that water levels will be at or below the design levels under more severe rainfall
conditions than assumed. If expected rainfalls were to occur sufficient storage should be
available such that there is high likelihood that three of the four stack compartments
could be closed after the 2003 hurricane season. Under this scenario closure of all stacks
would be completed by June of 2006. This shortened closure time period decreases the
likelihood of future emergencies.
4. Because the consumption needs of the site exceeded the then consumption of
the remaining water management options (treatment and discharge using the reverse
osmosis (RO) treatment system and transfers to the Cargill phosphate fertilizer plant, the
City of Tampa Howard Curren wastewater treatment plant, and Hillsborough County's
South wastewater treatment plant), the Department issued a Second and Third
Modification to the Order on January 10, and March 31, 2003, respectively. These
modifications required the site Receiver to remove minimum volumes of process water
over specified time periods, authorized the continued discharge of RO permeate, and
authorized the discharge of double-limed water until May 31, 2003, provided that the
combined discharge of double-limed water and RO permeate did not exceed specified
limitations on nitrogen and ammonia loadings. They also required the site Receiver to
take all practicable steps to reduce concentrations of nitrogen and ammonia in the
discharge.
5. While the double-limed discharges have begun to reduce the high wastewater
levels, they are likely to cause significant impacts to Bishop's Harbor as water
temperatures in the Harbor increase. In February of 2002 a bloom of "mahogany tide"
was reported in Bishop's Harbor and in late March a bloom of "macroalgae" was
reported. If the volume and nutrient loadings of the discharge are not reduced, more
severe impacts to Bishop's Harbor are likely to occur with the onset of warmer water
temperatures. Additionally, continuing the high-volume discharges may also cause
adverse impacts in sections of Tampa Bay. Previous water management options have
relied on favorable weather conditions, options that are wet-weather sensitive and under
third party control, or options that rely on emerging or unproven technologies. Unless
large volumes of wastewater can be removed from the site quickly there is a risk over the
hurricane season that untreated acidic wastewater will overflow the top of the
phosphogypsum stack and impact Tampa Bay. There is a more serious risk of a structural
failure of the stack walls resulting from significant outward pressure caused by additional
volumes of wastewater generated by further rainfall, resulting in risks to human health
and safety, especially to those maintenance and inspection personnel who are stationed at
the site. In addition, the Piney Point site borders U.S. Highway 41 - only 400 feet away at
its closest - a designated major hurricane evacuation route.
5. Because of these risks, on February 21, 2003, the Department filed an
application with the Environmental Protection Agency Region IV (EPA) for an
emergency permit under the Marine Protection, Research, and Sanctuaries Act to
authorize the dispersion of treated water from Piney Point into waters of the Gulf of
Mexico. The application and supplemental information provided detailed information on
the nature of the emergency, the protection measures taken to date, other options
evaluated, a risk-assessment analysis, and plans for dispersing the treated water to ensure
no adverse impact to Gulf waters. The risk to human health and safety arises from
potential overtopping and possible failure of the 50- to 70-foot (above grade) dikes
containing over 800 million gallons of acidic process wastewater if large quantities of
water cannot be safely removed from the site before the end of November 2003. The
water proposed to be released into the Gulf will be double-limed and aerated, and is
expected to meet all marine water criteria after initial mixing.
6. The EPA requested the Tampa Bay Estuary Program's (TBEP) technical input
on proposed options for dispersing treated wastewater from the Piney Point facility into
the Gulf of Mexico. TBEP staff sought the advice of experts from the central and eastern
Gulf of Mexico regions. Scientists from the Louisiana Universities Marine Consortium
(LUMCON), the Florida Marine Research Institute, EPA's marine research laboratory at
Gulf Breeze, Mote Marine Laboratory, the University of South Florida and other groups
participated in a conference call hosted by the TBEP on February 21, 2003. In its
response to EPA the TBEP noted that the "unanimous consensus among the scientists
was that dispersing the ammonia-enriched wastewater in the Gulf of Mexico posed fewer
ecological and health risks than continuing the discharge into Tampa Bay," and that
"ocean dispersion should be used only as a stopgap measure in the short term until other
options were implemented to relieve the emergency conditions." In its application to EPA
the Department has committed to continue reverse osmosis production, transfers to
Cargill and the City of Tampa, and to implement other options, as they become available,
to reduce the volume of treated water dispersed in the Gulf.
7. On April 9, the EPA issued an emergency permit, authorizing up to 534.7
million gallons of treated process wastewater to be dispersed into a designated site in the
Gulf of Mexico. EPA determined that all necessary conditions for issuance of an
emergency permit, pursuant to 40 CFR 220.3(c), have been met. EPA may issue
emergency permits for the dispersion or dumping of industrial wastes into ocean waters if
EPA determines that there has been demonstrated to exist an emergency, requiring the
dispersion of such wastes, which poses an unacceptable risk relating to human health and
admits of no other feasible solution Further, EPA concluded that the dispersion will have
minimal, if any, adverse environmental effects.
8. In order to disperse the treated wastewater into the Gulf of Mexico under the
terms of the EPA permit, the treated wastewater must be transferred from the Piney Point
site to Port Manatee, where ships or barges will be loaded with the treated water for
travel and subsequent dispersion at the designated site in the Gulf of Mexico. A pipeline
is proposed to be constructed to safely transfer the treated water from Piney Point to Port
Manatee. The proposed pipeline route is over 11,300 feet in length, will need to cross US
41, railroad tracks, and several ditches and roads within Port Manatee, pass through
several existing culverts, where it will connect to existing product pipelines at the Port
that serve several ship berthing areas.
CONCLUSIONS OF LAW
9. Section 120.569(2)(n) of the Florida Statutes gives the Department the
authority to issue an Emergency Final Order if, as agency head, I find that an immediate
danger to the public health, safety, or welfare so requires and the Order recites with
particularity the facts underlying that conclusion.
10. Section 373.119(2), of the Florida Statutes gives the water management
districts the authority to issue an Emergency Order if the Executive Director finds an
emergency exists that requires immediate action to protect the public health, safety or
welfare. Section 373.026(7) of the Florida Statutes gives the Department the authority
tdexercise any powers authorized to be exercised by the water management districts.
11. Rule 62-110.107(2) of the Florida Administrative Code authorizes the
Department to enter an emergency order when it determines that immediate action is
necessary to abate an imminent or currently existing serious threat to the public health,
safety, welfare, or the environment.
12. Based on the findings recited above, I find and conclude that the emergency
caused by the weather conditions and other factors requires an immediate Order of the
Department to protect the public health, safety, and welfare and the environment.
THEREFORE, IT IS ORDERED:
13. The Receiver is authorized to construct and place into operation the pipeline
in accordance with the plans and specifications prepared by the site Engineer. The
Receiver shall obtain, as directed by the Department, all other authorizations, agreements,
easements, licenses, or permits needed to construct and operate the pipeline.
14. The Receiver shall direct the site Engineer or the on-site Contractor to prepare
a plan for operation of the pipeline, including a contingency plan to respond to leaks,
spills, or other emergencies resulting from operation of the pipeline. Such plan shall be
submitted to the Department within 30 days of execution of this order. Upon approval of
the operation and contingency plan, the Receiver shall ensure that the on-site Contractor
and others who may be involved in the operation of the pipeline are aware of, and shall
follow and implement, the procedures specified in the plan.
15. The Receiver shall take all practicable steps to have the pipeline constructed
and operational by June 15, 2003. Within 30 days of completion of construction the
Receiver shall have the site Engineer prepare and submit to the department "as-built"
construction drawings for the pipeline.
16. The Receiver and site Engineer shall ensure that "best management practices"
are utilized during pipeline construction to minimize erosion, sedimentation, turbidity,
and the potential for Water quality violations. The Receiver and his representatives are
authorized to conduct maintenance activities on any ditches or culverts through which the
pipeline will cross or pass through in order to allow the ditches or culverts to pass
stormwater or other water flows at their design capacities. The Receiver and his
representatives are also authorized to trim wetland and other vegetation needed to install
the pipeline. However, this emergency order does not authorize any other wetland
dredging or filling activities. The Receiver shall ensure that construction-related activities
comply with applicable Department water quality standards in chapter 62-302 of the
Florida Administrative Code and sections 62-4.242 and 62-4.244 of the Florida
Administrative Code.
NOTICE OF RIGHTS
Any party adversely affected by this Emergency Final Order is entitled to judicial
review under section 120.68 of the Florida Statutes. The Florida Rules of Appellate
Procedure govern the review proceedings. Such proceedings are commenced by filing
one copy of a notice of appeal with the Agency Clerk of the Department of
Environmental Protection and a second copy, accompanied by filing fees prescribed by
law, with the First District Court of Appeal or with the district court of appeal in the
appellate district in which the party resides. The notice of appeal must be filed within
thirty days of rendition of the Order to be reviewed.
DONE AND ORDERED ON THIS 5th day of May 2003, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
__________________________________
Allan F. Bedwell
Deputy Secretary
(SEE PDF VERSION FOR ATTACHMENTS)