DEP05-0170
STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
IN RE:
Phosphoric Acid Fertilizer
Manufacturing Facilities
OGC File No. 04-1590
FOURTH 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
Fourth 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 41.8 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, January 10, 2005 and February 10, 2005, and
will expire at 11:59 pm, March 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 January 2005, the District's Central region
received an average of 1.14 inches of rain, which was classified as drier than normal for the
month of January. However, preliminary information, including precipitation data collected
by the United States Geologic Survey for the Bartow and Fort Meade vicinities of the Peace
River, indicates that rainfall for February will exceed the monthly mean which is 2.96 inches
across the District's Central region. The cumulative rainfall during the 12-month period
through January 31, 2004 for the Central Region averaged 65.44 inches. This cumulative
annual rainfall amount was 12.75 inches above the yearly normal of 52.69 inches. This
rainfall average is equivalent to the 92th percentile of historical cumulative rainfall readings
for the annual period and is classified as "very wet."
4.
The Facilities have utilized the provisions of this Order to maximize discharge
of treated process water and reduce process water inventory. However, five of the thirteen
phosphate chemical plants in Central Florida remain in "must treat" status as of March 7,
2005. A sixth facility, U. S. Agri-Chemicals Corporation at Fort Meade, is also in "must treat"
status as of March 7, 2005, after experiencing localized heavy rainfall of 5.8 inches during the
two-day period preceding February 28, 2005.
5.
Despite near normal rainfall during the most recent months of November
2004, through January 2005, the cumulative rainfall amounts during the recent 12-month
period, including localized heavy rainfall during February, have resulted in continued
unacceptably high process water levels at these facilities.
6.
Representatives of Mosaic Fertilizer, LLC and Mosaic Phosphates, MP, Inc.
(Mosaic), and U.S. Agri-Chemicals Corporation (USAC) have provided updates on their
efforts to reduce process water levels at their facilities. On February 28, and March 7, 2005,
representatives of USAC and Mosaic, respectively, requested authorization to resume or
continue discharges under this order from the three facilities listed below 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
•FL0000752, Mosaic Green Bay located at 4390 CR 640 West, Bartow, Florida
•FL0001902, USAC Fort Meade located at 3225 State Road 630, Fort Meade, 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.
Daily stream discharge values provided by the U.S. Geological Survey
(USGS) for the North Prong of the Alafia River and the Peace River were reviewed at the
following locations:
• The North Prong of the Alafia River at Keysville Road (USGS 02301000)
• The Peace River at Fort Meade (USGS 02294898)
Review of stream discharge values in the North Prong of the Alafia River indicates that
streamflow has remained near the long-term median values during the early and mid parts of
February followed by increased flows in response to regional rainfall at the end of February.
As of March 6, 2005, the mean daily discharge was 120 fl3/s, which is just above the historical
median daily streamflow reported based on the long-term record for this location in the Alafia
River. Review of stream discharge values in the Peace River at Fort Meade indicates
streamflow was above the long-term median values during the early part of February;
however, streamflow decreased to levels below the long-term median value for approximately
a three day period immediately prior to the rainfall on February 27. As of March 6, 2005, the
mean daily discharge was 755 ft3/s, which is greater than the 20% exceedance historical daily
streamflow reported based on the long-term record for the Peace River at this location.
9.
The Department is entering this Fourth 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
10.
The Department is empowered to administer and enforce chapters 373 and 403
of the Florida Statutes and the rules adopted thereunder.
11.
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
12.
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 Fourth Amended Immediate
Final Order. All references to "Facilities" hereafter are intended to apply only to these
Facilities.
13.
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
effective period of this Fourth Amended Immediate Final Order. BAT discharges authorized
under this Fourth Amended Immediate Final Order are from the Mosaic Green Bay facility to
the Alafia River watershed, and from the Mosaic Bartow facility (including any water
transferred from the Mulberry facility, FL0000671) and the USAC Fort Meade facility to the
Peace River Watershed. Discharges to surface water, other than those specifically authorized
by this paragraph, may continue where in compliance with each wastewater facility's
authorizing permit.
14.
During the effective period of this Fourth Amended Immediate Final Order,
Mosaic shall continue weekly monitoring for Outfalls 003 and 004 located at Mosaic
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 Fourth Amended Immediate Order, discharges to the Peace River
through Outfalls 003 and 004, as described above and authorized under Paragraph 13,
include upstream discharges of treated process water from the Bartow facility identified in
Paragraph 6 above.
15.
During the effective period of this Fourth Amended Immediate Final Order,
Mosaic shall continue weekly monitoring for BAT discharges under this Order from the
Mosaic Green Bay facility (FL0000752).
16.
During the effective period of this Fourth Amended Immediate Final
• Peace River Upstream location, Peace River at Bartow (Highway 60
crossing) at or near Latitude N 27° 54'8.5", Longitude W 81' 49'3.4"
Order, Mosaic shall continue weekly monitoring for surface water samples for the
locations described below:

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"

17.
Alafia River Downstream, Alafia River at Bell Shoals Road at or near
N 27°period
51' 26.4",
Longitude
W 82° 16'Immediate
9.2"
DuringLatitude
the effective
of this
Fourth Amended
Final Order,
companies that are authorized and which discharge to the Alafia River under this Immediate
Final Order shall monitor and record daily stream discharge values at 3:00 p.m., and historical
20 percent exceedance daily streamflow values, for the day prior to the discharge, in the North
Prong of the Alafia River as reported by the U.S. Geological Survey (USGS) at Keysville
Road (USGS 02301000).
18.
During the effective period of this Fourth Amended Tmmediate Final Order,
companies that are authorized and which discharge to the Peace River under this Immediate
Final Order shall monitor and record daily stream discharge values at 3:00 p.m., and historical
20 percent exceedance daily streamflow values, for the day prior to the discharge, in the Peace
River as reported by the U.S. Geological Survey (USGS) at Fort Meade (USGS 02294898).
19.
The weekly monitoring required under Paragraphs 14, 15, and 16 shall continue
or, where new, commence within 7 calendar days of the effective date of this Fourth Amended
Immediate Final Order. Such monitoring shall 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
Phosphate Management Office of the Bureau of Mine Reclamation upon receipt by Mosaic.
Monitoring data that is generated in accordance with paragraphs 14, 15 and 16 above, shall be
submitted as a separate report, independent of the reporting requirements per the Noralyn Mine
permit (FL0000230).
20.
Any Facility that discharges wastewater in accordance with Paragraph 13 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.
21.
Discharges under this Fourth 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 13 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.
22.
Discharges of treated process wastewater to the Alafia River, pursuant to
Paragraph 13 above, are not authorized during any calendar day where the streamflow
discharge, at 3:00 pm on the preceding day, is less than the historical 20 percent exceedance
streamflow value on that preceding day, as reported by the USGS for the North Prong of the
Alafia River at Keysville Road (USGS 02301000).
23.
Discharges of treated process wastewater to the Peace River, pursuant to
Paragraph 13 above, are not authorized during any calendar day where the streamflow
discharge, at 3:00 pm on the preceding day, is less than the historical 20 percent exceedance
streamflow value on that preceding; day, as reported by the USGS for the Peace River at Fort
Meade (USGS 02294898).
24.
Facilities authorized to discharge treated process wastewater in accordance
with Paragraph 13 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.
25.
This Fourth Amended Immediate Final Order shall take effect at 11:59 pm,
March 10, 2005, and shall expire at 11:59 pm, April 14, 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
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
ALLAN BEDWELL
Deputy Secretary for Regulatory Programs
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO § 120.52,
FLORIDA
STATUTES,
WITH
THE
DESIGNATED
DEPARTMENT
CLERK,
RECEIPT OF WHICH IS HE ACKNO EDGED.
3-9-05
DATE