Lawsuit filed against fertilizer company

An environmental group seeks money for cleaning up the Alafia River and Tampa Bay.

By BILL VARIAN
© St. Petersburg Times,
published December 7, 2001

TAMPA -- Hillsborough's Environmental Protection Commission filed suit against Mulberry Phosphates on Thursday, the eve of the four-year anniversary of a massive toxic spill at the Polk County fertilizer plant.

The suit seeks unspecified damages for investigation of the spill, penalties and money for cleanup and restoration of roughly 35 miles of the Alafia River and Tampa Bay. It comes on the last day before a state statute of limitations would have closed Hillsborough's window for seeking damages and after years of failed settlement talks.

"This was such severe water pollution and caused such severe damage that it, number one, has to be deterred from occurring in the future; but two, needs to be restored so that, hopefully, the system can be brought back to what it was," said Rick Tschantz, general counsel for the EPC.

The EPC does not expect to receive any money directly from Mulberry Phosphates, which is in bankruptcy court, where its few remaining assets are being sold. But Mulberry did own an environmental insurance policy. So the EPC hopes to prove the company's responsibility for the spill so it can seek payment from the insurance company.

Typically, anyone seeking money from people or companies under bankruptcy court protection must get in line and hope there is enough money to go around. And a lawyer for the trustee handling the bankruptcy proceedings said that Mulberry, along with its affiliate companies, has little money left.

"There's no company that I've seen that's more broke than these companies," said Herb Donica, the attorney.

But the EPC is seeking an exception to the bankruptcy law that allows police and regulatory agencies to pursue action against people or companies despite bankruptcy proceedings.

The state and federal governments filed similar suits earlier this year, which prompted new talks with Mulberry and its insurance company, AIG Environmental. An attorney for Mulberry said the EPC suit effectively reserves a seat for the county at those talks so it can ensure Hillsborough receives a cut of any monetary settlement.

The attorney, Daniel Addison with the Patton Boggs law firm in Washington, D.C., said Mulberry is cooperating fully in the talks and is eager to reach a resolution.

"I have been told to do what's right," Addison said. "We want to do what's right."

On Dec. 7, 1997 -- a Sunday morning -- a dike around a retention pond at the Mulberry plant just east of the Hillsborough border broke, sending 50-million gallons of acidic water coursing into the Alafia.

The spill was blamed for killing as many as 3-million fish. It also fed algae growth that killed natural vegetation from which the basin is still recovering.

Mulberry Phosphates, its parent company and its affiliates filed for bankruptcy protection in February as they attempted to reorganize. The reorganization fell apart, and the companies were forced into Chapter 7 bankruptcy in August, which means they are being broken apart and sold.

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