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Court: Fishermen can sue over Hillsborough Bay pollution

Published By: Tampa Bay Online

TAMPA - The Florida Supreme Court said Thursday that fishermen whose livelihoods are damaged by pollution may sue the companies responsible.

The ruling came in a 2004 Hillsborough County case in which Mosaic Fertilizer, then known as Cargill Corp. Nutrition, spilled about 65 million gallons of highly acidic wastewater into a creek leading into Hillsborough Bay. The spill came after the failure of a dam atop a 180-foot-high stack of phosphogypsum, a byproduct of fertilizer production.

The state's highest court overturned two lower courts that said the fishermen did not have the legal right to sue over damages to wildlife and the environment that the fishermen didn't own.

The Supreme Court said the fertilizer company has a duty to protect the interests of commercial fishermen in its use of public waters.

"Mosaic's business involved the storage of pollutants and hazardous contaminants," the 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."

The fertilizer business, the court wrote, "created an appreciable zone of risk within which Mosaic was obligated to protect those who were exposed to harm." This obligation included the fishermen who relied on the bay for their livelihood.

The court's ruling is not a total victory for the fishermen, who still must prove their case. The high court merely granted them the right to pursue their lawsuit.

When the lawsuit was first filed less than three weeks after the spill, then-Cargill Vice President Gray Gordon said the damage had been confined to Archie Creek and the area where the creek empties into Hillsborough Bay.

Gordon said the only harmful pollutants in the water besides high acidity were nitrogen and ammonia, which can cause algae blooms and consume dissolved oxygen in the bay.

But the fishermen said heavy metals and chemicals such as arsenic and fluoride in the wastewater also can harm wildlife and humans.

In their lawsuit, the fishermen said the fertilizer company had been warned by the Hillsborough County Environmental Protection Commission and the state Department of Environmental Protection that the amount of wastewater it was storing was dangerously close to exceeding a safe level.

Less than a month before the dam broke, the DEP told Cargill that a 100-foot section of the pond dike was 3 feet narrower than the 18-foot required width.

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