IN RE: Phosphoric Acid Fertilizer OGC File No. 04-1590
SEVENTH 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, the Department of Environmental Protection (Department), hereby makes findings of fact and conclusions of law, and enters this Seventh 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, 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, April 14, 2005, and May 31, 2005, and will expire at 11:59 pm, August 3, 2005, unless otherwise amended or extended.
3. Review of the hydrological reports prepared by the Southwest Florida Water Management District (District) indicates that from June 1 through June 20, 2005, the District’s Central region received an average of 5.35 inches of rain which is just over three fourths of the expected monthly mean of 6.94 inches.. The cumulative rainfall during the 12 month period through May31, 2005 for the Central Region averaged 66.68 inches. This cumulative annual rainfall amount was 1396 inches above the yearly normal of 52.72 inches. This rainfall average is equivalent to the 93th 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 July 1, 2005.
5. During June 2005, 11 of the 13 Systems reported receiving rainfall above the expected monthly mean of 6.94 inches with 8 of these stacks systems reporting rainfall totals in excess of 12 inches. The cumulative rainfall amounts during the recent 12 month period, including localized heavy rainfall at the end of June, 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. As of July 5, 2005, the National Hurricane Center has issued Public Advisories for four named tropical storms. 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. 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 July 5 and 6, 2005, representatives of Mosaic and USAC, respectively, requested authorization to continue or resume discharges under this order from the six facilities listed below in order to further reduce process water inventories to below must treat levels or to restore storage capacities to safe levels based on projected water balance and other facility specific requirements. 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
FL0000671, Mosaic Mulberry located on SR60, 2 miles east of Mulberry, Florida
FL0030139, Mosaic Nichols located on CR 676, 2-1/4 miles south of SR 60, Mulberry, Florida
FL0001902, USAC Fort Meade located at 3225 State Road 630, Fort Meade, Florida
FL0001961, USAC Bartow located on SR60, 2 miles west of Bartow, Florida
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 continuously above the long term median values during June. As of July 5, 2005, the mean discharge was reported as 581 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 June. As of July 5, 2005, the mean discharge was reported as 1510 ft3/s, which is above median historical daily streamflow reported based on the long term record for the Peace River at this location.
8. Rule 62 672.600, F.A.C., requires that conveyances and other hydraulic structures within a phosphogypsum stack system have adequate capacity to circulate and contain the runoff generated from 12 inches of rainfall in 24 hours within the freeboard of the phosphogypsum stack’s perimeter earthen dike system. This amount is roughly equivalent to the 100 year/24 hour storm rainfall amount which ranges from 10 – 12 inches in Florida. A review of the historical data for the Bartow NOAA weather station from 1887 to 1998 indicates that normal rainfall during the remainder of the rainy season (July through September) ranges from 7.36 to 8.33 inches per month, averaging approximately 8 inches per month over this period. This historical information indicates that a minimum 20 inches of storage capacity would have to be maintained, within the overall phosphogypsum stack system, in order to reserve sufficient storage capacity to hold the average monthly rainfall amount during July through September (i.e., approximately 8 inches), immediately following a single rainfall equivalent to the100 year storm event.
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.
10. The Department has determined that the current water levels, projected inventories, and the condition of the dikes and berms, due to heavy rainfall events at the six 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 Seventh 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. Rule 62-330.200 (3) (b) of the Florida Administrative Code,authorizes the issuance of emergency orders under these conditions. Therefore, the Department has the authority to issue this immediate final order.
ORDER 14. This Order applies only to those Facilities that are identified in Paragraph 6, when such Facilities either have water levels exceeding the "must treat" level as specified in Chapter 62 672 of the Florida Administrative Code or when the total available storage capacity within the phosphogypsum stack system is less than the amount required to contain at least 20 inches of rainfall runoff below design freeboard levels. 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 Seventh Amended Immediate Final Order. BAT discharges authorized under this Seventh Amended Immediate Final Order are from the Mosaic Green Bay, Mulberry, and Nichols facilities 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 and Bartow facilities 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 Seventh 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 Seventh 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 Seventh Amended Immediate Final Order, Mosaic shall continue weekly monitoring for BAT discharges to the Alafia River under this Order from the Mosaic Green Bay facility (FL0000752), and shall commence weekly monitoring for BAT discharges to the Alafia River under this Order from the Mosaic Mulberry (FL0000671), and Nichols (FL0030139) facilities.
18. During the effective period of this Seventh Amended Immediate Final Order, Mosaic shall continue monitoring on a bi weekly frequency (i.e., every other week) for surface water samples for the eight locations described below:
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"
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 Seventh 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 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 Seventh 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 Seventh 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 both the capacity required to contain at least 20 inches of rainfall runoff and 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.
23. Discharges under this Seventh 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).
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 summary of all activities performed thus far to minimize process water inventory;
Remaining storage volume to reach each “level” at the end of each reporting period;
Updated water balance for the Facility; and,
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 Seventh Amended Immediate Final Order shall take effect at 11:59 pm, July 7, 2005, and, except as otherwise provided herein, shall expire at 11:59 pm, October 5, 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.