Center for Biological Diversity, Tampa Bay Waterkeeper, Suncoast Waterkeeper, Manasota-88 and Our Children’s Earth Foundation v. Shawn Hamilton, in his official capacity as Secretary, Florida Department of Environmental Protection and HRK Holdings, LLC.
Public Justice’s Dan Snyder was lead counsel in litigation against the Florida Department of Environmental Protection (“FDEP”) concerning the troubled Piney Point facility, located outside of Tampa Bay, FL. The department agreed to a draft Clean Water Act permit that will require more robust oversight of pollution from the Piney Point phosphate facility.
This agreement, which was spurred by a lawsuit from conservation groups, includes establishing enforceable limits on harmful effluent discharged into Tampa Bay. After allowing the facility to operate without a permit for 20 years, Florida agreed to fund independent monitoring of its impacts on Tampa Bay’s water quality, issue a more protective CWA permit for the site and provide increased transparency for citizen oversight.
Piney Point is a roughly 480-acre abandoned phosphate fertilizer production facility. Phosphate mining produces substantial amounts of phosphogypsum waste, which is radioactive and contains high levels of nitrogen, heavy metals, and other water pollutants. Under existing federal regulations, the operators of the site were allowed to dump this phosphogypsum waste directly onto bare ground, formed mountains 70-80 feet tall.
In the early 2000s, the owners and operators of Piney Point declared bankruptcy and provided EPA with 48 hours prior notice to take over the property. Large impoundments were later built over the existing phosphogypsum stacks to prevent additional precipitation from interacting with the pollution. Later, FDEP decided to transfer ownership of the site to a private corporation, HRK Holdings.
Between 2017 and 2021, the available storage space in the impoundments shrank. It became obvious that without significant action, there would be little room within the impoundments to detain future stormwater. No steps were taken by HRK or FDEP to address this, and in March 2021, a liner breach occurred that released over 215 million gallons of contaminated water directly into Tampa Bay. This discharge added enough nitrogen to trigger the largest red tide bloom Tampa Bay has faced in some 50 years.
Public Justice filed suit against the State and HRK Holdings on behalf of five environmental organizations in 2021, alleging that Piney Point presents an imminent and substantial endangerment to human health and the environment under RCRA, and that defendants discharged pollutants without first obtaining the requisite permit in violation of the CWA.
After the case was filed, FDEP successfully moved for the appointment of a receiver in state court action to which Public Justice’s clients were not party, and the legislature thereafter allocated $100M for the closure of the site. Public Justice battled motions to dismiss from all defendants, arguing in part that the Court should let our case proceed because there was no draft or formal closure plan in place, no remediation actively occurring, and that Congress already spoke to the times when a citizen suit may be properly stayed. Following oral argument, Judge Jung of the Middle District of Florida issued a Landis stay of the litigation for six months.
Public Justice thereafter pursued its CWA claim, resulting in the settlement. Still pending before the District Court is Public Justice’s Motion for Entry of Default Judgment against HRK Holdings, which seeks a declaration that there was no lawful CWA permit at the site and the imposition of nearly $1M in civil penalties.
The groups involved in the lawsuit are the Center for Biological Diversity, Tampa Bay Waterkeeper, Suncoast Waterkeeper, ManaSota-88 and Our Children’s Earth Foundation. They are represented by Public Justice’s Environmental Enforcement Project, the Center for Biological Diversity and the Law Offices of Charles M. Tebbutt.
