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Don't hold your breath trying to sue Mosaic over the massive Mulberry sinkhole; it takes a while

In September, a week after fertilizer giant Mosaic finally revealed to the public that a sinkhole at its Mulberry plant dropped 215 million gallons of contaminated water into the aquifer below, three of the plant's neighbors filed suit against the company.

Suing Mosaic takes some patience. Just ask St. Petersburg native Howard Curd.

Curd, 69, is the lead plaintiff in another lawsuit against Mosaic that also involves a massive spill of polluted water. Curd and his fellow fishermen alleged in the lawsuit that the acidic water destroyed the marine habitat in Hillsborough Bay that their livelihoods depended on.

They filed suit in 2004.

Twelve years ago.

The case has still not gone to trial.

Two of Curd's fellow plaintiffs have since died.

So he has a word of advice for the Mulberry residents seeking their day in court against Mosaic:

"Don't hold your breath," he said, "or you'll be called blue boy."

Just like the Mulberry sinkhole that opened in August, the 2004 case also started with a pond of wastewater atop one of Florida's humongous phosphogypsum stacks, where phosphate plants pile up the acidic, slightly radioactive waste they can't get rid of any other way.

In September 2004, Hurricane Frances became the second of four hurricanes to slam into Florida in a six-week period. When Frances' winds whipped across Hillsborough County, big waves churned up on the pond atop a 180-foot-tall gypsum stack at a phosphate plant in Riverview.

The waves bashed a big hole in the dike around the pond, sending 150 million gallons of polluted water cascading down the stack's side, according to news accounts. The contamination flowed into a stormwater ditch that runs around its 400-acre base and threatened to overflow the sides.

At that point, the Riverview facility's owner, a company then called Cargill, opened a valve that released the water from the ditch into Archie Creek. The company took that step after consulting with the Florida Department of Environmental Protection.

Cargill workers were also spraying a neutralizing agent called caustic soda on the acidic water to lessen its impact — but then they ran out and couldn't get any more for a while, the company told reporters.

Cargill wasn't sure how much ran into the creek, initially pegging it at 18,000 gallons. Then the estimate went up — way up. The company raised it to 65 million gallons.

"It's a serious spill," a Cargill vice president told reporters at the time.

Archie Creek flows into Hillsborough Bay, up near the top of Tampa Bay. Measurements of the creek's pH level show it turned acidic because of the pollution. The contaminated water also carried nitrogen and ammonia, which can spur algae blooms.

The spill didn't threaten human life, but an acid spill can quickly lay waste to marine life. For example, in 1997, the same Mulberry phosphate plant dumped 50 million gallons of untreated acidic water into the Alafia River, killing millions of fish.

So back in 2004, when that acidic water hit Hillsborough Bay, it took a major toll on commercial fishermen like Curd, who has been fishing around Tampa Bay since the 1950s, and Tampa native Albert Darlington Jr.

Darlington, 61, who started fishing full-time in 1988, said Mosaic's pollution ate the galvanized zinc off his crab traps and drove the crabs to flee the bay. Curd said his traps turned black. Both said that instead of collecting their catch close to home, they had to take their boats much further north, to Hudson and even Homosassa Springs.

Another plaintiff, 59-year-old Mac Nipper of Clearwater, dove down to inspect the bay bottom. He compared what he saw to visiting what had been the site of a lush, green forest after a devastating fire.

"I walked the bottom for sponges and marine life, and it was a void," said Nipper, 59. "It was like it was burned out to nothing."

The DEP had warned Cargill that the dike might give way. After the spill, it fined the company $270,000. By then a merger with IMC-Agrico had turned it into Mosaic.

The fishermen sued three weeks after the spill, demanding to be repaid various amounts of money to cover their financial losses. They sought class action status, which would mean the case would cover about 130 people. But 12 years later, the case is still unresolved.

"Mosaic has raised every conceivable objection they could," said their attorney, Wallace Pope of Clearwater.

For instance, Mosaic's attorneys argued that the fishermen had no standing to sue because they did not own the marine life hurt by the spill. That argument convinced the trial court and an appeals court.

But in 2010, the Florida Supreme Court ruled for the fishermen.

"Mosaic's business involved the storage of pollutants and hazardous contaminants," the high court wrote. "It was foreseeable that, were these materials released into the public waters, they would cause damage to marine and plant life as well as to human activity."

By storing contaminants on its site, the court said, the company "created an appreciable zone of risk within which Mosaic was obligated to protect those who were exposed to harm." That included the fishermen who depended on the bay for their livelihood.

Other issues required appeals court rulings, too, leading to further delays. According to Mosaic, that's what has delayed the case.

"Since the time that plaintiffs' lawyers sued, we have won in court three times and their lawyers have appealed all three times," company spokeswoman Jackie Barron said. "That has taken time."

Last year the two sides went to mediation, Nipper said, and reached a settlement — or so it seemed.

"Within 30 days we were supposed to get paid," he said. "The 30 days came and went, and then our attorney said, 'They're not paying.' So here we go back at it."

The fishermen are frustrated at how long they have had to pursue Mosaic for damages, particularly given how much they believe the company is spending on attorney's fees.

"Their attorneys are making a fortune off of it, and we're just the poor little guys that don't matter," Darlington said. "They treat us like we're a bunch of scum(my) fishermen.

"But we weren't doing anything wrong. We were just going to work. They're the ones who caused the problem."

Times senior news researcher John Martin contributed to this report. Contact Craig Pittman at craig@tampabay.com. Follow @craigtimes.

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