Florida is suing Piney Point’s owners. Is the state also to blame?

The Department of Environmental Protection’s lawsuit, critics say, outlines how it also bears responsibility for the crisis.
A drone image shows the old Piney Point fertilizer plant property in April.
A drone image shows the old Piney Point fertilizer plant property in April. [ LUIS SANTANA | Times ]
Published Aug. 9, 2021|Updated Aug. 9, 2021

Florida’s lawsuit against the owner of the Piney Point fertilizer plant property breaks down the many ways the state says HRK Holdings failed to care for the site. It is supposed to leave no doubt that, after years of struggling to maintain the complex, HRK left Piney Point open to disaster.

But all those allegations, critics say, also read like a list of warning signs that the Florida Department of Environmental Protection missed before the crisis.

A leaking reservoir at the property this spring caused officials to order the evacuation of hundreds of homes and led to 215 million gallons of polluted water being dumped into Tampa Bay.

Related: Failure at Piney Point: Florida let environmental risk fester despite warnings

“The bigger picture here is that DEP failed,” said Jaclyn Lopez, Florida director of the Center for Biological Diversity, which has sued both the state and HRK Holdings over the problems at Piney Point. “DEP failed the public. It failed the environment. And it needs to take a good look in the mirror and figure out what it can do better.”

A Florida Department of Environmental Protection spokesperson declined to comment for this story or answer specific questions about the agency’s past oversight of Piney Point. She said the department does not comment on pending litigation.

Florida’s interim Environmental Secretary Shawn Hamilton in a statement Thursday called the case “a pivotal step” toward closing Piney Point for good while also meeting “the agency’s charge and dedication to holding HRK accountable.” The lawsuit was filed in Manatee County circuit court and seeks damages from HRK Holdings.

Effluent flows from a pipe into a drainage ditch at Port Manatee across the street from the old Piney Point fertilizer plant property in April.
Effluent flows from a pipe into a drainage ditch at Port Manatee across the street from the old Piney Point fertilizer plant property in April. [ DOUGLAS R. CLIFFORD | Times ]

The state is asking the court to appoint an independent receiver to manage the site, impose extensive financial penalties against HRK Holdings and also help regulators recover millions they have spent in scrambling to deal with the crisis. Florida spent $45.7 million on emergency contracting as of July 15, according to the environmental agency.

The Piney Point property contains massive phosphogypsum stacks, totaling about 466 acres and built out of a radioactive byproduct of the fertilizer industry. The stacks contain vast reservoirs of contaminated water.

Related: Florida sues Piney Point owner over polluted Tampa Bay discharge

HRK Holdings, under agreements with the Department of Environmental Protection, is tasked with managing that waste. But the state’s lawyers said the company violated those agreements, and Florida law, in several ways:

  • HRK was operating under a consent order to get rid of polluted water at the site by February 2019. It didn’t. The state’s lawyers wrote that the company “never complied with the (consent order)” and did not provide enough resources to dispose of the water.
  • The company — which, according to the state, has previously filed for bankruptcy protection and emerged from that process, and which is now subject to a foreclosure action — has not put up enough money in an account to assure that Piney Point will be taken care of long into the future.
  • Since 2017, HRK has repeatedly violated limits for contaminants in groundwater discharged at Piney Point, including sodium and radium. Those limits are meant to help ensure the protection of clean drinking water.
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According to its lawsuit, the Department of Environmental Protection “regularly” warned the firm of its “financial assurance and water management obligations.”

HRK Holdings’ principal owner did not answer calls or texts seeking comment from a Tampa Bay Times reporter. The company issued a statement earlier this year saying its employees notified “all who would listen” that it was struggling to handle water on the site and that wastewater ponds could eventually be overtopped.

“To insinuate that HRK has done anything other than what was required of and allowed by the State of Florida under authority of the numerous agreements and projects undertaken by the company is preposterous,” HRK said in the statement.

The firm also said the plastic liner that tore, likely triggering the leak this spring, was flawed and installed while the state oversaw the property through a court-appointed receiver in the mid-2000s.

Given HRK’s apparent financial difficulties, some people have questioned how much money Florida will actually be able to recoup.

“The state’s newfound enthusiasm for enforcement is a bit late and somewhat misplaced,” said Justin Bloom, founder of the environmental advocacy organization Suncoast Waterkeeper, which has joined the Center for Biological Diversity in suing the state and HRK. “They really need to be a lot more introspective here.”

Bloom said he doubts the company has enough money to continue running the site and defend itself from multiple lawsuits.

A view of a phosphogypsum stack, far background, and a water management system at HRK Holdings’ property off Buckeye Road at Piney Point.
A view of a phosphogypsum stack, far background, and a water management system at HRK Holdings’ property off Buckeye Road at Piney Point. [ DOUGLAS R. CLIFFORD ]

The environmental agency’s legal claim is not solely about payment. Hamilton, the state’s top environmental official, said he hopes a court-appointed receiver will speed up the process of draining polluted water at Piney Point and capping the stacks. The Department of Environmental Protection has not offered a timeline for when that work will be finished or an estimate of how much it will cost.

The state’s former environmental secretary, Noah Valenstein, who stepped down earlier this year, told legislators during an April committee hearing that he was open to having the agency look back at its history around Piney Point to see if existing regulations are sufficient for managing phosphogypsum stacks. Florida is home to roughly a couple dozen such stacks, according to state records.

“We should always look for opportunities to make sure we’re protecting the environment fully,” he said.

This is not the first time the state has promised to end the environmental threat at Piney Point, which has long held a reputation for spills and dumps that hurt the surrounding environment.

Related: From the Archives: Bending the rules at Piney Point, a $140-million mess

“It sounds like we’re in the exact same spot as we were 18 years ago,” said Rick Garrity, former head of the Environmental Protection Commission of Hillsborough County, who remembers attending a meeting with a consultant for the court-appointed receiver who sat over the property in 2003.

JD Alexander, a former Republican state senator from Lake Wales, said he can recall the Legislature directing tens of millions of dollars toward shuttering the plant. State leaders this year talked about spending another $100 million or more to finally close it.

“Somebody’s going to have to go in there and sort it out again,” Alexander said. “I sure thought we had done it 20 years ago.”

The roots of the Piney Point saga extend even further, said Tampa lawyer Herb Donica, who worked with the bankruptcy trustee on the case of Mulberry Corp., the last plant operator that folded a couple decades ago.

Elected officials historically embraced complexes like Piney Point without mandating strict oversight or planning, he said. They were enamored with the well-paying jobs and lucrative tax dollars the fertilizer industry showered upon rural Florida.

“It’s the only business I know where you take hundreds and hundreds of acres and you condemn it to hell until the end of mankind,” Donica said. “Somebody should have said back then: ‘What are you going to do with this?’

“And somebody could have asked: ‘What happens if the company goes out of business?”