DEP05-0532
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
IN RE:
Phosphoric Acid Fertilizer
Manufacturing Facilities
OGC File No. 04-1590
/
SIXTH 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
Sixth 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
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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, January 10, 2005, February 10, 2005, March 9, 2005, and April 14, 2005, and
will expire at 11:59 pm, May 31, 2005, unless otherwise amended or extended.
3.
Review of the hydrological reports prepared by the Southwest Florida Water
Management District (District) indicates that in April 2005, the District’s Central region received
an average of 3.30 inches of rain, which was above the historical April average, but, classified
within the normal range. The cumulative rainfall during the 12-month period through April 30,
2004 for the Central Region averaged 64.49 inches. This cumulative annual rainfall amount was
11.74 inches above the yearly normal of 52.72 inches. This rainfall average is equivalent to the
90th percentile of historical cumulative rainfall readings for the annual period and is classified as
"wetter than normal."
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 May 25, 2005.
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5.
Despite near normal rainfall during the most recent months of November 2004,
through April 30, 2005, the cumulative rainfall amounts during the recent 12-month period,
including localized heavy rainfall at the end of February and throughout March-April, have
resulted in continued unacceptably high process water levels at these facilities. Predictions for
the 2005 Atlantic Hurricane Season may mean the current period of above normal cumulative
rainfall amounts will continue. On May 16, 2005, NOAA issued its 2005 Atlantic hurricane
season outlook indicating a 70% chance of an above-normal hurricane season. The prediction is
for 12 to 15 tropical storms with 7 to 9 of those becoming hurricanes during 2005. Such
predicted tropical activity may result in above normal rainfall and continued unacceptably high
process water levels during the remainder of 2005.
6.
Representatives of U.S. Agri-Chemicals Corporation (USAC), and Mosaic
Fertilizer, LLC and Mosaic Phosphates, MP, Inc. (Mosaic), have provided updates on current
water balance projections and their efforts to reduce process water levels at their facilities on
May 16 and 17, respectively. The water balance projections indicated the need to continue
efforts to reduce process water levels and restore additional surge capacity in preparation for the
increased rainfall expected during the rainy season months from June through September. On
May 24 and 27, 2005, representatives of Mosaic and USAC, respectively, requested
authorization to 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
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7.
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 or above the long-term median values during April and most of
May. As of May 27, 2005, the mean discharge was reported as 58 ft3/s, which is above the
historical median 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 continuously above the long-term median values during April and May. As of
May 27, 2005, the mean discharge values was reported as 73 ft3/s, which is above median
historical daily streamflow reported based on the long-term record for the Peace River at this
location.
8.
The historical data sets for the past five years and for the period of record at the
two locations described in paragraph 7 above were reviewed to evaluate the timing for historical
increases in streamflow values during the rainy season months from June through September.
The USGS record data set for the Alafia River at Keysville Road confirms the existence of a
sharp increase in both historical 80th percentile and median streamflow values beginning around
early to mid June of each year. The USGS record data set for the Peace River at Ft. Meade also
confirms the existence of a sharp increase in both historical 80th percentile and median
streamflow values beginning around early to mid June of each year. Based on median USGS
streamflow values during the most recent five years, the median streamflow values in both these
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locations in the Alafia and Peace Rivers are expected to experience an increasing trend beginning
in early June through at least the next 60 day period due to the onset of the historical rainy
season.
9.
On April 5, 2005, Mosaic proposed the emergency construction of a pond system
comprised of 2 cells of sufficient capacity to act as diversion impoundments for the temporary
storage of process water from the FL0001589, Mosaic Bartow (including the Mulberry facility,
FL0000671) and FL0000752, Mosaic Green Bay facilities. Once constructed, these ponds will
have a combined maximum capacity of approximately 3,700 acre-feet, and will be lined with an
80-mil HDPE liner. The construction was proposed to address the immediate concern for the
deficit surge capacity needed to safely contain the cumulative rainy-season rainfall amounts
(typically occurring from the months of June through September of each year) for these three
facilities. Pursuant to the terms of the Fifth Amended Immediate Final Order, on May 17, 2005,
Mosaic received emergency authorization to begin construction works for the two shared 80-mil
lined emergency diversion impoundments, [hereafter referred to as NP-NPA(1D)-A and
NP-NPA(1D)-B], within the mandatory reclamation parcel NP-NPA(1D) in the
Noralyn/Phosphoria Mine. This activity is subject to wastewater facility and activity permitting
requirements under Chapter 62-620, F.A.C. Additionally, the construction is subject to Part IV
of Chapter 373, F.S., and Chapter 62-330, F.A.C., for obtaining an Environmental Resource
Permit. Pursuant to Operating Agreements executed between the Department of Environmental
Protection (Department) and the water management districts, as referenced in Chapter 62-113,
F.A.C., the Department is responsible for reviewing and taking final agency action on this
activity.
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10.
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.
11.
The Department is entering this Sixth 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
12.
The Department is empowered to administer and enforce chapters 373 and 403 of
the Florida Statutes and the rules adopted thereunder.
13.
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.
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ORDER
14.
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 Sixth Amended Immediate Final
Order. All references to "Facilities" hereafter are intended to apply only to these Facilities.
15.
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, at a minimum, the discharge shall
be treated with the “best available technology” (BAT) 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 during the
effective period of this Sixth Amended Immediate Final Order. BAT discharges authorized
under this Sixth 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.
16.
During the effective period of this Sixth 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
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
Outfall 004, discharges to Barber Branch, then to the Peace River.
For the purposes of this Sixth Amended Immediate Order, discharges to the Peace River through
Outfalls 003 and 004, as described above and authorized under Paragraph 15, include upstream
discharges of treated process water from the Bartow facility identified in Paragraph 6 above.
17.
During the effective period of this Sixth Amended Immediate Final Order, Mosaic
shall continue weekly monitoring for BAT discharges under this Order from the Mosaic Green
Bay facility (FL0000752).
18.
During the effective period of this Sixth Amended Immediate Final Order, Mosaic
shall continue or, where new, implement monitoring on a bi-weekly frequency (i.e., every other
week) for surface water samples for the eight locations described below:
Existing
 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"
 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"
New
 Alafia River SR 37 South Prong, Alafia River South Prong at SR 37 at or near
Latitude N 27° 46' 2.1", Longitude W 81° 59' 29.0"
 Poley Creek, Poley Creek at SR 60 at or near Latitude N 27° 55' 24.5",
Longitude W 82° 1' 48.6"
 Alafia River Pinecrest, Alafia River North Prong at Pinecrest Road at or near
Latitude N 27° 50' 56.0", Longitude W 81° 57' 44.5"
 Alafia River SR 37 North Prong, Alafia River North Prong at SR 37 at or near
Latitude N 27° 53' 20.6", Longitude W 81° 58' 24.3"
 Alafia River Keysville, Alafia River North Prong at Keysville Road at or near
Latitude N 27° 53' 1.5", Longitude W 82° 6' 0.1"
19.
During the effective period of this Sixth Amended Immediate 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
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median daily streamflow values, for the specified time prior to the discharge period, in the North
Prong of the Alafia River as reported by the U.S. Geological Survey (USGS) at Keysville Road
(USGS 02301000).
20.
During the effective period of this Sixth Amended Immediate 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
median daily streamflow values, for the specified time prior to the discharge period, in the Peace
River as reported by the U.S. Geological Survey (USGS) at Fort Meade (USGS 02294898).
21.
The monitoring required under Paragraphs 16, 17, and 18 shall continue or, where
new, commence within 7 calendar days of the effective date of this Sixth 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, dissolved oxygen, 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 16, 17, and 18 above,
shall be submitted as a separate report, independent of the reporting requirements per the
Noralyn Mine permit (FL0000230).
22.
Any Facility that discharges wastewater in accordance with Paragraph 15 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
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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.
23.
Discharges under this Sixth 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 15 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.
24.
Discharges of treated process wastewater to the Alafia River, pursuant to
Paragraph 15 above, are only authorized during any 24-hour discharge period where the
streamflow discharge, as read at 3:00 pm immediately prior to that discharge period, is greater or
equal to the historical median streamflow value as reported by the USGS for the North Prong of
the Alafia River at Keysville Road (USGS 02301000). Alternatively, only when corresponding
data from the Alafia River at Keysville Road (USGS 02301000) station is unavailable for use
and subject to application of the record keeping requirements in paragraph 19 above, the
historical median streamflow value as reported by the USGS for the Alafia River at Lithia
Florida (USGS 02301500) may be substituted for values from the USGS 02301000 station.
25.
Discharges of treated process wastewater to the Peace River, pursuant to
Paragraph 15 above, are only authorized during any 24-hour discharge period where the
streamflow discharge, as read at 3:00 pm immediately prior to that discharge period, is greater or
equal to the historical median streamflow value as reported by the USGS for the Peace River at
Fort Meade (USGS 02294898).
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26.
Facilities authorized to discharge treated process wastewater in accordance with
Paragraph 15 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.
27.
In order to timely provide the emergency storage capacity needed as indicated in
paragraph 9 above, Mosaic shall continue construction works in compliance with the
requirements of paragraphs 27 and 28 of the Fifth Amended Immediate Final Order and shall
continue to make all reasonable efforts to obtain all necessary permits or revisions as set forth
therein.
28.
This Sixth Amended Immediate Final Order shall take effect at 11:59 pm, May 31,
2005, and, except as otherwise provided herein, shall expire at 11:59 pm, August 3, 2005, unless
modified or extended by further order.
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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 May, 2005.
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
HEREBY ACKNOWLEDGED.
CLERK
DATE
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Sixth Amended Immediate Final Order has been sent
by United States Postal Service on this ______ day of May 2005, to:
MOSAIC FERTILIZER, L.L.C.
8813 Highway 41 South
Riverview, Florida 33569-4865
MOSAIC PHOSPHATES, MP, Inc.
Post Office Box 2000
Mulberry, Florida 33860-1100
US AGRI-CHEMICALS CORPORATION
3225 State Road 630
Fort Meade, Florida 33841-9799
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
________________________________
BETSY HEWITT
Deputy General Counsel
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000
Telephone 850/245-2242
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