Is a big phosphate company using legal tactics to scare FL environmentalists?

July 23, 2020 7:00 am

A giant sinkhole opened up beneath one of Mosaic’s massive phosphogypsum stacks four years ago, draining polluted water on top of the stack into the aquifer. Credit: Florida Channel screen grab

I want to be clear about one thing, right up front. This is all perfectly legal.

In an area of Florida where water use has been sharply restricted for 28 years, state officials have been allowing the nation’s largest phosphate company to pump millions of gallons of water out of the ground every day.,

One major use for that water drawn from Hillsborough, Manatee, Polk, Hardee and DeSoto counties: Dumping it. They use it to dilute the pollution from the company’s Bartow phosphate plant. That way, when the company’s waste flows into a creek that flows into the Peace River, it can meet the state’s anti-pollution regulations.

The company, Mosaic, is asking for a new permit from the state to keep dumping its pollution this way — up to 27 million gallons of it every day. The state Department of Environmental Protection is ready to grant the permit, but a group of people challenged the permit as too permissive.

And then a bunch of them dropped out.

They were worried that a judge overseeing the challenge would order them to pay Mosaic a lot of money for getting in the company’s way. And by “worried,” I mean freaking out.

Ever since July 8, when one of Mosaic’s attorneys filed a motion for “sanctions” against its critics, “I have been getting nightmares, my blood pressure is way up, my blood sugar is out of control,” one of the people who dropped out told The Charlotte Sun.

In the motion, Mosaic attorney Gary Perko contended the people who challenged its permit did so “based purely on generalized concerns about the environment and not under any reasonable belief that a justiciable controversy exists.”

In other words, their objections to Mosaic’s pollution permit for disposing of waste contaminated with radioactive particles, toxic metals, arsenic, mercury, lead, and chromium were frivolous. Therefore, they should pay a financial penalty for wasting everyone’s time.

You may be one of those folks who only know Mosaic from its pretty TV commercials full of roseate spoonbills and other wildlife. In the ads, a woman you don’t see talks about all the good things the company is doing for Florida. “Our promise is to always take our commitment to the environment seriously,” she says in one commercial.

If that’s all you know about Mosaic, then this kind of hardball legal tactic may surprise you.

Then again, you may be one of those people who recall that a ginormous sinkhole opened up beneath one of Mosaic’s massive phosphogypsum stacks four years ago, draining the polluted water on top of the stack into the aquifer, and Mosaic chose not to tell the public about it for three weeks.

If so, then this attempt to shut down critics may not be as much of a shock. If you remember the company’s sinkhole silence, you may also find those TV commercials more comedic than reassuring.

I contacted Mosaic to ask about the company’s request to penalize its opponents before a judge has even ruled on its permit. (There’s a hearing coming up Aug. 17-19 in Tallahassee.)

“We encourage transparency in permitting efforts and constructive resolution of permit appeals, informed by well-established standards and procedures,” Mosaic spokeswoman Jackie Barron said in an email. “Those who bring unsupported and meritless claims should be held to account for their actions. There are procedures under Florida law for this very purpose and the use of those procedures is particularly appropriate here.”

DEP press secretary Weesam Khoury said Mosaic’s permit, if granted, would be more stringent than the one that’s in place now. Khoury said it strengthens the terms of its existing permit with greater water quality monitoring and the addition of new criteria designed to stop the flow of the kind of pollution that feeds toxic algae blooms. DEP is on Mosaic’s side in this legal challenge, but it’s not seeking money from the taxpayers challenging the permit.

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, told me he expects to see more big Florida corporations like Mosaic using this method to scare away opponents after what happened to Janet Reno’s sister, former Martin County Commissioner Maggy Hurchalla.

A widely known political and environmental activist, Hurchalla, 79, worked hard to persuade her successors on the commission to end a contract with a company she contended was damaging local wetlands.

The company, owned by a billionaire who served prison time for killing his horse for the insurance money, said she was lying and sued her for interfering with his contract.

He won, and the $4.4 million judgment against Hurchalla was so huge that when she couldn’t pay it, his company confiscated her two kayaks and the 2004 Toyota Camry she inherited from her sister. (They were later returned.)

“What happened to Hurchalla would be chilling to anyone in Florida who’s thinking of going up against a well-funded corporate entity,” LoMonte told me this week.

The number of people challenging Mosaic’s permit has now dwindled to just two, neither of them lawyers. One is Tim Ritchie, 56, of Punta Gorda, who is on disability. He told me he’s deeply concerned about what Mosaic’s dumping is doing to the purity of the Peace River, which supplies his region’s drinking water.

When I asked Ritchie what happened to all the allies who melted away when threatened, he said they thought they were signing up for something benign like a public hearing. They didn’t realize the challenge he was pursuing in the state Division of Administrative Hearings is like a civil lawsuit, complete with a judge, attorneys, depositions, and motions.

“We’re just simple folks,” he explained. “We get emails and letters in the mail and it gets scary.”

Ritchie says he’s not trying to stop Mosaic completely — he just wants DEP to require that the company to do a lot more monitoring of the pollution it’s dumping.

The other plaintiff wants more, though. A lot more.

Nathan Tzodikov has a doctoral degree in chemistry from the Massachusetts Institute of Technology. At 68, he’s semi-retired, which means he’s got the time and the expertise to investigate what’s in his drinking water.

He found what he calls “the treasure trove” of files the DEP has posted online about its various pollution permits and read the ones for Mosaic. He became convinced that the company is incorrectly measuring what’s in its waste.

“Based on my reading of their permit, they are out of compliance with the mercury level, the arsenic level, and the chromium level,” he told me.

Yet Tzodikov also does not want to stop Mosaic cold. Instead, he has suggested the company build an advanced wastewater treatment plant to clean up the company’s waste before it goes into the state’s waterways, just as cities and counties are required to do with their sewage.

Running the waste through a treatment plant would make it far easier to guarantee no harmful levels of sickening chemicals would foul the drinking supply of southwest Florida’s cities, he said.

Tzodikov pointed out that such a treatment plant, despite its cost, would offer one other big advantage over the way Mosaic is handling its waste now: The company “possibly would not need to pump so much water from the aquifer for dilution.”

What happened, I asked, when he proposed this non-dilution solution to Mosaic, the company that says it will “always take our commitment to the environment seriously”?

“Oh,” he said, “they rejected this quickly.”

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Craig Pittman
Craig Pittman

Craig Pittman is a native Floridian. In 30 years at the Tampa Bay Times, he won numerous state and national awards for his environmental reporting. He is the author of five books, including the New York Times bestseller Oh, Florida! How America's Weirdest State Influences the Rest of the Country, which won a gold medal from the Florida Book Awards. His latest, published in 2020, is Cat Tale: The Wild, Weird Battle to Save the Florida Panther. The Florida Heritage Book Festival recently named him a Florida Literary Legend. Craig is co-host of the "Welcome to Florida" podcast. He lives in St. Petersburg with his wife and children.