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Operating Agreements Llc Florida by ggm36044

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									                                                                                 DEP05-0532

                           STATE OF FLORIDA DEPARTMENT
                           OF ENVIRONMENTAL PROTECTION



IN RE:

Phosphoric Acid Fertilizer                                   OGC File No. 04-1590
Manufacturing Facilities
                                      /



                     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.




                                                  2
        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




                                                  3
       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




                                                  4
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.




                                                  5
       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.




                                                  6
                                                  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




                                                      7
                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



                                                  8
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




                                                  9
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).




                                                10
       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.




                                                 11
                                           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




                                                     12
                                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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