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Mosaic Lawsuit Docket Data
8:16-cv-02724-JDW-JSS Bohn et al v. The Mosaic Company et al
James D. Whittemore, presiding
Julie S. Sneed, referral
Date filed: 09/22/2016
Date of last filing: 09/23/2016
Text of the Complaint (Last Page(s) Missing)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
NICHOLAS BOHN; NATASHA McCORMICK;
and ERIC WECKMAN, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.
THE MOSAIC COMPANY and MOSAIC
FERTILIZER, LLC
Defendants.
Civ. No.
CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL
Plaintiffs, by and through their attorneys, as and for their complaint against Defendants
allege as follows:
INTRODUCTION
1. Plaintiffs bring this action against Defendants for water monitoring and property
damage because the Floridan aquifer and/or the Surficial and Intermediate aquifers (the
“Floridan Aquifer” that provides groundwater to Plaintiffs have been contaminated as a result of
Defendants’ actions and omissions.
2. On or around August 27, 2016 a sinkhole developed at Defendants’ New Wales
phosphate fertilizer manufacturing plant located in Mulberry, Florida (“New Wales Facility”).
The sinkhole is located on Defendants’ property within an onsite storage facility under
Defendants’ direct control, and is the cause of radioactive and other chemical waste
contamination in the Floridan Aquifer.
3. Defendants’ conscious actions and omissions disregarded foreseeable risks to
human health and safety and to the environment.
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4. Residents in the communities that surround the New Wales Facility have
legitimate concern for the integrity and safety of their water supplies as the toxic radioactive and
other chemical wastewater is in the Floridan Aquifer causing, and will continue to cause, water
contamination.
5. Plaintiffs bring this suit on behalf of themselves and all those similarly situated to
recover damages from Defendants who recklessly and negligently managed, operated and stored
toxic radioactive wastewater produced from Defendants’ New Wales Facility.
PARTIES
Plaintiffs
6. Plaintiff Nicholas Bohn is a citizen and resident of Lithia, Florida with a mailing
zip code of 33547. Mr. Bohn is a homeowner who obtains his water from a private well located
on his residential property.
7. Plaintiff Natasha McCormick is a citizen and resident of Lithia, Florida with a
mailing zip code of 33547. Ms. McCormick is a homeowner who obtains her water from a
private well located on her residential property.
8. Plaintiff Eric Weckman is a citizen and resident of Lithia, Florida, with a mailing
zip code of 33547. Mr. Weckman is a home renter who obtains his water from a private well
located on the rental property.
Defendants
9. Defendant The Mosaic Company is a corporation organized and existing under
the laws of the state of Delaware, having its principal place of business at 3033 Campus Drive,
Plymouth, Minnesota 55441.
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10. The Mosaic Company owns and operates phosphate and potash mines for the
specific purpose of sending the raw materials to self-owned processing facilities, including The
Mosaic Company’s New Wales Facility located in Mulberry, Florida.
11. Mosaic Fertilizer, LLC is a corporation organized and existing under the laws of
the state of Delaware, having its principal place of business at 3095 County Road 640 W,
Mulberry, Florida 33860.
12. Mosaic Fertilizer, LLC owns and operates a facility named New Wales, which
produces finished phosphate products used in crop fertilizers and animal feed.
13. At all times relevant, Mosaic Fertilizer, LLC operated the New Wales Facility at
the direction and under the control of its parent, The Mosaic Company.
14. Under the direction and control of its parent, Mosaic Fertilizer, LLC has operated
and continues to operate the New Wales Facility with disregard to public and environmental
safety.
JURISDICTION AND VENUE
15. Jurisdiction is proper in this Court pursuant to the Class Action Fairness Act, 28
U.S.C. § 1332(d), because members of the proposed Plaintiff classes are citizens of states
different from at least some of Defendants’ home states, and the aggregate amount in
controversy exceeds $5,000,000, exclusive of interest and costs.
16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the events or
omissions by Defendants giving rise to the claims asserted herein occurred in this District, have
caused harm to Class Members residing in this District, and Plaintiffs, Nicholas Bohn, Natasha
McCormick and Eric Weckman, reside in this District.
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GENERAL FACTUAL ALLEGATIONS
Background Regarding Defendant, The Mosaic Company
17. The Mosaic Company (“Mosaic”) was established in 2004 following an
agreement between Cargill, Inc. and IMC Global to form the new crop nutrition company.
18. Mosaic is incorporated in Delaware, has its headquarters in Plymouth, Minnesota,
and is publicly traded on the New York Stock Exchange using the stock moniker “MOS”.
19. Following its creation, Mosaic became the world’s largest producer and marketer
of concentrated phosphate and potash crop nutrients, each of which is the product of Mosaic’s
phosphate production facilities in Florida, Louisiana and Peru, and potash production facilities in
New Mexico and Saskatchewan Canada.
20. Additionally, Mosaic obtains the raw phosphate rock for its processing plants
from Mosaic-owned mines in Central Florida and Saskatchewan Canada.
Background Regarding Defendant, Mosaic Fertilizer, LLC
21. In May 2004, Mosaic’s predecessor, Cargill, Inc., registered Cargill Fertilizer,
LLC as a foreign limited liability company with the Florida Secretary of State. Thereafter,
Cargill Fertilizer, LLC began operating the phosphate processing plant located in Mulberry,
Florida referred to herein as the “New Wales Facility”.
22. On October 25, 2004, Cargill Fertilizer, LLC changed its name to Mosaic
Fertilizer, LLC (“Mosaic Fertilizer”). Mosaic Fertilizer continued and continues to operate at the
New Wales Facility as a foreign corporation authorized to do business in the State of Florida.
23. Mosaic Fertilizer’s New Wales Facility is a phosphate fertilizer manufacturing
plant, located at 3095 County Road 640, Mulberry, Florida 33860.
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24. The New Wales Facility is 4,000 acres in size and produces 4.8 million tons of
phosphate fertilizer and animal feed ingredients each year. It is currently the largest fertilizer
manufacturing facility in the world.
25. The New Wales Facility, operated by Mosaic Fertilizer, is Mosaic’s primary
source for phosphoric acid, the necessary ingredient in Mosaic’s phosphate fertilizers.
26. The Mosaic Company and Mosaic Fertilizer, LLC are collectively referred to
herein as “Defendants”.
The Phosphoric Acid Process
27. Phosphoric acid is the product of wet slurries, made by combining ground
phosphate rock with concentrated sulfuric acid. This chemical combination creates phosphoric
acid and calcium sulfate. Additional water is added to the slurry to separate the calcium sulfate
and other insoluble materials from the phosphoric acid.
28. The separated calcium sulfate is commonly referred to as gypsum or
phosphogypsum, and is a known byproduct of phosphoric acid wet processing. Phosphogypsum
is radioactive due to the presence of uranium and radium (elements naturally occurring in the
raw phosphate rock). The re-use or recycled use of phosphogypsum is prohibited by the EPA if
the phosphogypsum has an average radium concentration of more than 10 picocuries per gram
(pCi/g). In such an instance, phosphoric acid manufacturers are required to store the radioactive
phosphogypsum indefinitely in open storage areas called gypsum stacks, or gypstacks.
29. Gypstacks are created by pushing original, natural surface soils into large piles or
mounds, which serve as the initial sides of the gypstack. The soil mounds create an earthen dam
that receives and holds slurried phosphogypsum wastewater pumped from the manufacturing
facility. Solid gypsum within the slurry settles to the base and sides of the gypsum stack and
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wastewater from the slurry is decanted into a cooling pond for later use in plant operations. The
settled gypsum is then used to build up the original soil walls to increase the stack's height,
allowing for increased storage capacity.
30. For every ton of phosphoric acid made, approximately 5 tons of phosphogypsum
are produced. As a result, gypstacks are very large and have the capacity to hold millions of
gallons of the slurried radioactive phosphogypsum.
31. Mosaic Fertilizer is required to store and maintain gypstacks onsite at the New
Wales Facility because the facility produces phosphogypsum with radium concentrations
averaging between 20-35 pCi/g. Currently, the New Wales Facility has one operational gypstack
– The South Gypsum Stack.
32. The New Wales Facility’s South Gypsum Stack was built in two phases. Phase I
was constructed in 1992 on 394 acres; it is located south of a cooling pond and is stacked 200
feet high. The construction of Phase II began in 2002, occupies 310 additional acres, consists of
an east cell and a west cell, and is approved to have a final height of 300 feet. Additionally,
Phase II provides for an increase to the height of the Phase I site from 200 to 300 feet high.
33. The South Gypsum Stack operates in conjunction with an unlined cooling pond
system. Together the gypstack and cooling pond comprise the New Wales Facility's
phosphogypsum stack system. Mosaic Fertilizer operates its phosphogypsum stack system under
Industrial Wastewater Facility Permit Number FL0036421 issued by the Florida Department of
Environmental Protection (“FDEP”).
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The Sink Hole
34. On or around August 27, 2016, Mosaic Fertilizer employees noticed dropped
water levels at the west cell within the South Gypsum Stack, suggesting a leak of stored
radioactive phosphogypsum wastewater.
35. Shortly after the noted water loss, a sinkhole was observed. The sinkhole formed
at the base of the west cell located in New Wales’ South Gypsum Stack, which held radioactive
and other chemical-containing wastewater. In the days and weeks that followed this observance,
Mosaic Fertilizer notified the requisite regulatory authorities that radioactive wastewater was
escaping from the gypstack.
36. On or around September 16, 2016, Defendants confirmed media reports of a
sinkhole at the New Wales Facility, which provided the public with knowledge of the
contamination for the first time, nearly 3 weeks after Defendants were aware that radioactive
wastewater was escaping from the west cell of the South Gypsum Stack and into the Floridan
Aquifer.
37. Presently, the sinkhole is approximately 45 feet in diameter and several hundred
feet deep. On information and belief, at least 215 million gallons of radioactive wastewater has
escaped the South Gypsum Stack via the sinkhole.
38. The escaped radioactive and other chemical-containing wastewater is comprised
of radionuclides, spent sulfuric acid, wastewater generated from cleaning phosphoric acid
production pipes and equipment, acidic cooling water with high concentrations of phosphorus
and fluoride, and other contaminants that settle in the gypstack as a consequence of Defendants’
manufacture of phosphoric acid.
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39. Solid gypsum contains a high concentration of radium-226, uranium, and other
uranium decay products due to the separation and concentration of radionuclides that occurs
during the production of phosphoric acid.
40. In addition to radionuclides, gypsum contains metals in concentrations which the
EPA believes may pose a hazard to human health and the environment. The metals include, but
are not limited to, arsenic, lead, cadmium, chromium, zinc, antimony, iron, and copper.
41. The Mosaic Company has confirmed that the escaped radioactive and other
chemical-containing wastewater has entered Florida’s main source of groundwater, the Floridan
Aquifer.
42. As recently as September 2015, Mosaic Fertilizer entered into a Consent Decree
with the United States Environmental Protection Agency and the Department of Justice, which,
in part, cited Mosaic Fertilizer for violations of the federal Resource Conservation and Recovery
Act (RCRA), and required Mosaic Fertilizer to investigate “reasonable and practicable methods
to reduce the volume of pond water within Mosaic’s main Cooling Pond that would be lost in the
event of a sinkhole.”1
43. On information and belief, as of August 2016, Mosaic Fertilizer had not taken the
steps necessary to reduce the risk of 215 million gallons of radioactive wastewater from draining
into the Floridan Aquifer via a sinkhole.
CLASS ACTION ALLEGATIONS
44. Plaintiffs incorporate the paragraphs 1 through 43 as though the same were set
forth at length herein.
1 Consent Decree, Appendix 7 at 8 [Document 22-3], United States, et al. v. Mosaic Fertilizer, LLC, (8:15-cv-
02286) (The parties agreed to the terms of the Consent Decree in September 2015. The Consent Decree and its Appendixes were signed and entered by the Judge on August 5, 2016.).
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45. Plaintiffs bring this lawsuit as a class action on their own behalf and on behalf of
all other persons similarly situated as members of the proposed classes pursuant to Federal Rules
of Civil Procedure 23(a), 23(b)(2), and (b)(3). This action satisfies the numerosity,
commonality, typicality, adequacy, predominance, and superiority requirements of those
provisions.
46. Plaintiffs bring this class action on behalf of the following classes, as set forth
below:
Private Well Water Property Damage Class
All individuals who, as of August 27, 2016, or anytime thereafter,
were/are owners of real property located within 5-miles of the
sinkhole at Defendants’ New Wales Facility, and who obtain their
water supply from a privately owned well.
Private Well Water Nuisance Class
All individuals who, as of the time a class is certified in this case,
are owners or lessors of real property located within 5-miles of the
sinkhole at Defendants’ New Wales Facility, and who receive their
water supply from a privately owned well.
47. Excluded from the classes set forth above are: (a) Defendants, any entity or
division in which Defendants have a controlling interest, and their legal representatives, officers,
directors, assigns, and successors; (b) the Judges to whom this case is assigned and the Judges’
staff; (c) any class counsel or their immediate family members; and (d) any State or any of its
agencies.
48. Plaintiffs reserve the right to amend the class definitions set forth above if
discovery and/or further investigation reveal that any class should be expanded, divided into
subclasses or modified in any way.
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Numerosity
49. There are approximately 5,000 individuals who live in within five (5) miles of the
sinkhole who obtain their water from private wells and are impacted by the sinkhole. It is
estimated there are over 1,500 private wells in the impacted area. Each of the classes set forth
above is sufficiently numerous to warrant class treatment, and the disposition of the claims of
these class members in a single action will provide substantial benefits to all parties and to the
Court.
50. Further, class members are readily identifiable from publically available
information regarding property ownership and/or residential history.
Typicality
51. Plaintiffs’ claims are typical of the claims of the classes in that Plaintiffs, like all
class members, are owners or lessors of real property that have experienced a diminution in value
and/or nuisance due to the actions of the Defendants. Further, all Plaintiffs obtain their water
from private wells and without the relief sought herein are at risk of drinking or using
contaminated water from Defendants’ actions.
52. Moreover, the factual bases of Defendants’ misconduct are common to all class
members and represent a common thread of misconduct resulting in injury to all members of the
classes.
Adequate Representation
53. Plaintiffs will fairly and adequately represent and protect the interests of the
classes. Plaintiffs have retained counsel with substantial experience litigating both
environmental torts and class actions, including actions, like this one, representing putative
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classes whose property has been devalued by the actions of a polluter and/or who have been
exposed or at risk of being exposed to dangerous chemicals and need redress to prevent harm.
54. Plaintiffs and their counsel are committed to vigorously prosecuting this action on
behalf of the classes and have the financial resources to do so. Neither Plaintiffs nor their
counsel has interests adverse to the classes.
Predominance of Common Questions
55. Plaintiffs bring this action under Rule 23(b)(3) because there are numerous
questions of law and fact common to Plaintiffs and the class members that predominate over any
question affecting only individual class members. The answers to these common questions will
advance resolution of the litigation as to all class members. These common legal and factual
issues include:
a. Whether Defendants owed a duty to Plaintiffs and members of the classes to
refrain from conduct reasonably likely to cause contamination of class
members’ private well water;
b. Whether Defendants knew or should have known that the storage of the
radioactive phosphogypsum wastewater at its South Gypsum Stack was
unreasonably dangerous to the environment and to Plaintiffs;
c. Whether Defendants knew or should have known that its New Wales
Facility’s South Gypsum Stack contained an unreasonably dangerous volume
of radioactive wastewater;
d. Whether Defendants breached a legal duty to Plaintiffs and the classes by
storing radioactive phosphogypsum wastewater at its South Gypsum Stack
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with inadequate protection to prevent the creation or perpetuation of a
sinkhole;
e. Whether Defendants’ breach of a legal duty caused and continues to cause
Plaintiffs’ and class members’ private well water to be at imminent risk of
contamination from the radioactive phosphogypsum wastewater;
f. Whether it was foreseeable that Defendants’ storage of radioactive
phosphogypsum wastewater at its South Gypsum Stack would cause
Plaintiffs’ and class members’ private well water to become at imminent risk
of contamination and not fit for human consumption or use;
g. Whether Defendants created and maintained a nuisance by consciously storing
dangerously excessive volumes of radioactive phosphogypsum wastewater
within the west cell of its South Gypsum Stack;
h. Whether Defendants’ storage of radioactive phosphogypsum wastewater at its
South Gypsum Stack and the resultant sinkhole described herein substantially
interfered and interferes with Plaintiffs’ and class members’ use and
enjoyment of their property;
i. Whether Defendants’ storage of radioactive phosphogypsum wastewater at its
South Gypsum Stack, and the resultant sinkhole described herein caused, and
continues to cause, an imminent invasion of the property rights of Plaintiffs
and class members;
j. Whether Defendants caused the devaluation of Plaintiffs’ and class members’
property; and
k. Whether Defendants’ conduct warrants the imposition of punitive damages.
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Superiority
56. Plaintiffs and members of the classes have all suffered and will continue to suffer
harm and damages as a result of Defendants’ unlawful and wrongful conduct. A class action is
superior to other available methods for the fair and efficient adjudication of this controversy.
57. Absent a class action, most class members would likely find the cost of litigating
their claims to be prohibitively high and, therefore, would have no effective remedy at law.
Further, without class litigation, class members will continue to incur damages.
58. Class treatment of common questions of law and fact will conserve the resources
of the courts and the litigants, and will promote consistency and efficiency of adjudication.
Rule 23(b)(2) Injunctive or Declaratory Relief
59. In addition to the above, Plaintiffs bring this class action under Rule 23(b)(2)
because Defendants have acted or refused to act on grounds that apply generally to the classes,
such that final injunctive relief or declaratory relief is appropriate with respect to each class as a
whole. Such injunctive relief includes, but is not limited to, an injunction to require immediate
and regular testing of Plaintiffs’ private well water; and, when the contamination is imminently
threatening Plaintiffs’ private wells, to install treatment sufficient to remove the toxic radioactive
wastewater from Plaintiffs’ private well water.
60. Accordingly, Plaintiffs seek an injunction requiring Defendants to implement an
immediate and regular testing program of Plaintiffs’ private well water and, further, to install
water treatment systems on Plaintiffs’ wells sufficient to remove the contamination caused by
Defendants’ conduct.
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61. Finally, Plaintiffs and the classes seek a declaration that Defendants acted with
negligence, gross negligence, and/or willful, wanton, and careless disregard for the health, safety,
and property of Plaintiffs and members of the classes.
Rule 23(c)(4) Certification of Particular Issues
62. In the alternative to certification under Rule 23(b)(2) or 23(b)(3), Plaintiffs and
the classes seek to maintain a class action with respect to particular issues under Rule 23(c)(4).
63. Specifically, the liability of the Defendants is suitable for issue certification under
Rule 23(c)(4).
CAUSES OF ACTION
FIRST CLAIM FOR RELIEF
STRICT LIABILITY PURSUANT TO FLORIDA POLLUTANT DISCHARGE
PREVENTION AND CONTROL ACT (§ 376.313 Florida Statutes)
64. Plaintiff incorporates by reference the allegations set forth above in paragraphs 1
through 63 as if fully restated herein.
65. At all relevant times, Defendants owned, operated and/or maintained the Mosaic
New Wales Facility and the South Gypsum Stack. The South Gypsum Stack is now the site of a
massive sinkhole, which was first reported to government agencies in August 2016. As a result
of the sinkhole, hundreds of millions of gallons of radioactive and other chemical-containing
wastewater was discharged from the gypstack and entered the Floridan Aquifer.
66. At all relevant times, Defendants had a statutory duty to Plaintiffs and class
members to maintain and operate the Mosaic New Wales Facility and its South Gypsum Stack so
as not to create and/or to allow the creation of hazardous conditions due to the discharge of
contaminants, as defined by Florida Statutes §§ 376.301(09), 376.301(10) and 376.301(12).
67. At all relevant times, Defendants breached their statutory duty to Plaintiffs and
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class members by discharging, or causing to be discharged, radioactive and other chemicalcontaining
wastewater into the Floridan Aquifer, which Plaintiffs and class members use as the
water source for private drinking water wells, agricultural activities, and other uses, in violation
of Florida Statutes § 376.30 to § 376.317. Defendant is strictly liable to Plaintiff under §
376.313(3).
68. As the direct and proximate result of Defendants’ statutory breach of duty,
Plaintiffs and class members are unable to depend on groundwater pumped from the Floridan
aquifer for their private well water for drinking water and other personal and business uses.
69. By reason of the foregoing, Plaintiffs incurred and continue to incur damages,
including but not limited to property damage, diminution of property value, risk of loss of their
private well water supply, loss of use and enjoyment, and other economic losses, in an amount to
be determined at trial.
SECOND CLAIM FOR RELIEF
STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITY
70. Plaintiffs incorporate by reference the allegations set forth in paragraph 1 through
63 as if fully restated herein.
71. Defendants, as the owners and operators of the New Wales Facility, engaged in
abnormally dangerous activities by the manner in which they maintained and operated the
phosphogypsum wastewater stacks at its New Wales Facility – namely, the South Gypsum Stack.
The collapse of the stack and resulting discharge of radioactive and other chemical-containing
wastewater within the South Gypsum Stack is the result of a Defendants’ overuse and
dependence on the gypstack for long-term storage of billions of tons of radioactive waste
byproduct produced from the manufacture of phosphoric acid.
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72. Defendants use and practices associated with toxic radioactive wastewater storage
at the South Gypsum Stack (a) created a high degree of risk of harm to others: particularly,
residents and property owners who depend on the Floridan Aquifer for their private well water
supply, such as Plaintiffs and class members, (b) created a likelihood that the harm threatened by
Defendants’ activities would be great; (c) created a risk of harm that could have been eliminated
prior to the creation of the sinkhole by the exercise of reasonable care but cannot now be
eliminated; (d) were not a matter of common usage; and (e) were inappropriate to the place
where and manner in which they were being carried on, in that they constituted a non-natural use
of Defendant’s facility which imposed and continues to impose an unusual and extraordinary risk
of harm to residents and property owners who depend on the Floridan Aquifer for their water
supply, such as Plaintiffs and class members.
73. As a direct and proximate result of Defendants’ conduct of engaging in the
abnormally dangerous activities alleged herein, substantial amounts of toxic radioactive
wastewater has been released and continues to be released from Defendants’ South Gypsum
Stack located at the New Wales Facility. The harm sustained by Plaintiffs and class members is
the result of Defendants’ abnormally dangerous activities and was foreseeable by Defendants.
74. By reason of the foregoing, Plaintiffs and class members incurred damages,
including but not limited to property damage, and other economic losses, in an amount to be
determined at trial.
THIRD CLAIM FOR RELIEF
NUISANCE
75. Plaintiffs incorporate by reference each and every allegation set forth in
paragraphs 1 through 63 as if fully stated herein.
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76. This claim is brought under Florida law on behalf of Plaintiffs and the Property
owner subclass.
77. Defendants, through reckless and/or intentional acts and omissions alleged herein,
have contaminated the Floridan Aquifer that is the source of Plaintiffs’ and class members’
private well water.
78. Defendants’ corporate practice of improperly storing dangerous volumes of
radioactive phosphogypsum wastewater in the South Gypsum Stack located at the New Wales
Facility was unreasonable, unwarranted and unlawful.
79. The contamination of class members’ drinking water has interfered with the rights
of Plaintiffs and the classes to use and enjoy their property. Indeed, this interference is
substantial in nature and includes: (a) the ability of Plaintiffs and class members to fully use the
wells on their property which are their only sources of potable water, including the consumption
or incidental ingestion of contaminated water, the use of contaminated water for agricultural
needs and the use of contaminated water for their water-related activities; and (b) being unable to
exploit the full economic value of their properties by sale or rental or by using the property at
security for a loan.
80. Defendants’ reckless and/or intentional acts and omissions were unreasonable,
unwarranted and unlawful, and constitute a continuous invasion of the property rights of
Plaintiffs and the classes.
81. As a direct and proximate result of Defendants’ acts and omissions as alleged
herein, Plaintiffs and the classes have incurred, and will continue to incur, costs and expenses
related to the investigation, treatment, remediation, and monitoring of drinking water and the
contamination of their respective properties, as well as the damages set forth below.
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FOURTH CLAIM FOR RELIEF
NEGLIGENCE
82. Plaintiffs incorporate by reference each and every allegation set forth in
paragraphs 1 through 63 as if fully stated herein.
83. Defendants, directly or indirectly, caused radioactive and other chemicalcontaining
wastewater from the South Gypsum Stack at its New Wales Facility to migrate into
the groundwater and, thus, to threaten Plaintiffs’ and class members’ private water wells.
84. At all times relevant to this litigation, Defendants had a duty to exercise
reasonable care in the storage, handling, and maintenance of the South Gypsum Stack at its New
Wales Facility, including the duty to take all reasonable steps necessary to ensure that the toxic
radioactive wastewater does not migrate from the site and, especially, that the toxic radioactive
wastewater does not enter Floridan Aquifer and contaminate groundwater.
85. At all times relevant to this litigation, Defendants knew, or in the exercise of
reasonable care should have known, of the hazards and dangers surrounding the South Gypsum
Stack at its New Wales Facility, and specifically that failure to ensure the structural integrity of
the phosphogypsum stack could cause toxic radioactive wastewater and other hazardous
materials from the stank to enter and contaminate groundwater.
86. Accordingly, at all times relevant to this litigation, Defendants knew, or in the
exercise of reasonable care should have known, that the manner in which phosphogypsum waste
was stored at the New Wales Facility could cause Plaintiffs’ injuries and thus created a
dangerous and unreasonable risk of injury to the Plaintiffs.
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87. Defendants also knew, or in the exercise of reasonable care should have known,
that private well users were unaware of the risks and the magnitude of the risks associated with
the storage of the phosphogypsum wastewater at Defendants’ New Wales Facility.
88. As such, Defendants breached their duty of reasonable care and failed to exercise
ordinary care in the in the storage, handling, and maintenance of the South Gypsum Stack at its
New Wales Facility, in that Defendants failed to properly maintain the stack, knew or had reason
to know that failure to properly maintain the stacks could result in significant pollution and
contamination of groundwater, and thus Plaintiffs’ private water wells, and knew or had reason
to know that such conduct created a significant risk of harm and unreasonably dangerous side
effects and failed to prevent or adequately warn of these risks and injuries.
89. Defendants knew, or should have known, that it was foreseeable that its methods
of storage of toxic radioactive wastewater in the South Gypsum Stack at its New Wales Facility
would injure individuals and/or businesses with private water wells, such as Plaintiffs, and that
Plaintiffs would suffer injuries as a result of Defendants’ failure to exercise ordinary care in the
storage of its phosphogypsum waste.
90. Plaintiffs did not know the nature and extent of the injuries that could result from
Defendants’ phosphogypsum waste stored in the South Gypsum Stack at their New Wales
Facility.
91. Defendants’ negligence was the proximate cause of the injuries, harm, and
economic loses that Plaintiffs suffered, and will continue to suffer, as described herein.
92. Defendants’ conduct, as described above, deviated from the standard that
Defendants owed to Plaintiffs and class members. Defendants regularly risk the safety of
residents in the vicinity of its New Wales Facility, including Plaintiffs, with full knowledge of
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the dangers of storing phosphogypsum waste without a proper maintenance and other
precautions. Defendants made conscious decisions not to store its phosphogypsum waste in a
manner that would prevent contamination of groundwater, including the groundwater relied on
by Plaintiffs for drinking water and other personal and business uses.
93. As a proximate result of Defendants’ wrongful acts and omissions, Plaintiffs have
been damages and continue to be damaged.
FIFTH CLAIM FOR RELIEF
GROSS NEGLIGENCE
94. Plaintiffs incorporate by reference each and every allegation set forth in
paragraphs 1 through 63 as if fully stated herein.
95. As described above, Mosaic and its subsidiary Mosaic Fertilizer consciously
disregarded the EPA’s warnings and specific suggestions/agreements in the 2015 consent decree
related to the safe storage of radioactive wastewater in the South Gypsum Stack at the New
Wales Facility.
96. The actions and omissions of the Defendants, as specifically alleged in paragraphs
83 through 93 above, were reckless and in conscious disregard for the health and safety of
Plaintiffs and class members.
97. Mosaic’s and Mosaic Fertilizer’s actions constitute a conscious disregard or
indifference to the life, safety, or rights of the Plaintiffs and the class.
98. Such conduct triggers Plaintiffs’ and class members right to seek punitive
damages pursuant to Fla. Stat. Ann. § 768.72.
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PRAYER FOR RELIEF
On the basis of the claims set forth herein, Plaintiffs demand the following relief:
A. That the Court determine that this action may be maintained as a class action under
Fed. R. Civ. P. 23(a), (b)(2) and (c)(4), that Nicholas Bohn, Natasha McCormick, and
Eric Weckman be designated as Class Representatives, their counsel as Class counsel,
and that the best practicable notice of this action be given to the members of the class;
B. That Plaintiffs and class members recover the damages determined to have been
sustained by each of them respectively including diminution of the value of their real
estate;
C. That Plaintiffs receive private well testing and monitoring for the specific purpose of
detecting toxins contained in the Defendants’ radioactive and other chemicalcontaining
wastewater discharged from the New Wales Facility;
D. That Plaintiffs receive funding or reimbursement for private water well filters and/or
other treatment following a positive water test that shows their private well is
contaminated.
E. That Plaintiffs receive punitive damages awardable under Florida Statute;
F. That the Court, pursuant to Fla. Stat. Ann. § 376.313, award Plaintiffs’ counsel their
reasonable attorney’s fees and reimbursement of all costs and litigation expenses;
G. That the Court grant such other and further general and equitable relief as may be
deemed just and proper.
INJUNCTIVE RELIEF SOUGHT
In addition to the above, Plaintiffs and the class seek injunctive relief including, but not
limited to, implementation of a mandatory testing protocol requiring Defendants to immediately . . .
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