Log in Subscribe

Piney Point Lawsuit Documents Call Simple Narrative into Question

Posted
Legal action taken by HRK Holdings following the 2011 liner breach that sent 170 million gallons of untreated wastewater into Bishop Harbor poses the same question our community has been asking since the most recent catastrophe. Who is responsible for the disaster that is Piney Point?

FDEP has repeatedly stated its intention to hold HRK (the site’s current owner) liable as the "responsible party.“ However, warnings issued by the Army Corps of Engineers prior to the decision to utilize one of the site’s gypsum stacks for the disposal of dredge material from the expansion of the port, contained in documents from the complaint, suggest there is plenty of blame to go around.

In ongoing pre-litigation related to a complaint filed in Orange County, dated January 3, 2013, HRK Holdings LLC (which purchased the property after mining operations were shuttered and the previous owner had gone bankrupt) details an interesting and complex argument against three corporations and one individual for damages associated with the liner breach of 2011. While the pre-litigation is ongoing and all parties seem to have a different current take, the thousands of pages of records, affidavits, and exhibits appear to support many aspects of HRK’s retelling.

Whether or not it will go to trial or meet the legal requirements of "fault“ is yet to be decided, but, so far, the judge in the case has denied motions for dismissal by the defendants. While FDEP and Port Manatee are not named as defendants in the complaint, supporting documents show a chain of events and communications that detail an outline of seemingly prophetic warnings by the federal government concerning the plan to use Piney Point as a dredge disposal site for Port Manatee’s berth 12 expansion–warnings that apparently went unheeded by the state, Port Manatee, and HRK.

In the complaint, HRK seeks damages based on several points, including defects of the HDPE liner and known preexisting subgrade instabilities of the stack system those liners were installed upon. HRK also alleges that Ardaman & Associates–the engineering consulting firm retained by FDEP prior to HRK’s purchase of the site–and Nadim F. Fuleihan–Senior VP and principal engineer for Ardaman–would have had reasonable knowledge of those points before dredge material was pumped into the old gypsum stack system.

From the complaint:

"É The chemicals, pollutants and hazardous substances released from the NGS-S (new gypsum stack south) in June 2011 É occurred as a direct and proximate result of Defendant ARDAMAN's involvement as the Engineer of Record hired by FDEP in the installation of a single geomembrane liner on top of phosphogypsum É"

"Defendant ARDAMAN, as the Engineer of Record, oversaw the installation of approximately 2.56 million square feet of 80-mil HDPE liner É it was reasonably foreseeable to Defendant ARDAMAN that the leak, breach, or failure of portions of the 2.5 million square feet of HDPE liner could result in the release of contaminated water, including water contaminated after coming into contact with the phosphogypsum subgrade, and could foreseeably result in damage to the property of individuals residing in the community located adjacent to the Piney Point facility É“

HRK purchased the old Piney Point phosphate processing site in August of 2006. In the five years prior, the site was managed by a receiver, FDEP, and those they contracted with, including Ardaman. The original administrative agreement entered by HRK with FDEP outlined approved potential future uses of the old stack system. HRK agreed to allow FDEP and its contractors access and oversight of the closure completion and maintenance. At the time of the purchase, much of the work toward the site’s closure–including the lining of the gypsum stacks–had been undertaken by FDEP, Ardaman and Fuleihan, and other contracted parties. Even after HRK’s purchase of Piney Point, Ardaman and Fuleihan continued to perform their duties and receive payment, as set forth in their contract with FDEP.

As the closure of Piney Point was underway, Port Manatee was in the process of expanding an access channel to berth 12. The channel was to be made suitable for use by so-called super-tankers destined for the Panama Canal. This project is referred to as phase III of the Manatee Harbor Navigation Project. A significant issue the port’s phase III project confronted was the disposal of the dredge material produced by the expansion. Original planning placed dredge from phases I, II, and III in the dredge disposal containment area located on the port’s campus. Unexpectedly, the port’s dredge containment area reached capacity after phase II, leaving no space to contain the estimated 3.2 million cubic yards expected to be produced in the phase III canal expansion. Seeking a solution, the port entered discussions with HRK to dispose of the dredge in the gypsum stacks left behind at the old phosphate processing plant.

April 19, 2007: FDEP amended the administrative agreement with HRK to include the proposed use of the lined phosphogypsum reservoirs for containment of dredge material from the port’s berth 12 project.

Within the numerous attachments of pre-litigation proceedings, copies of the original administrative agreement from 2006 between FDEP and HRK for Piney Point can be found, along with the 2007 amendment to that agreement. Also attached, and dated April 19, 2007, is the Manatee Port Authority resolution regarding the use of Piney Point for dredge disposal and the legal agreement (Port Manatee Dredged Materials Containment Agreement) between the Manatee Port Authority and HRK. The legal agreement outlines the use of the old gypsum stacks to store the initial dredge produced by the port’s phase III expansion, spanning 20 years to include three-year cycle points for additional dredge storage produced from maintenance of the canal.

August 14, 2008: A 72-page "General Reevaluation Report" prepared by Col. Paul L. Grosskruger (U.S. Army District Engineer, US Army Corps of Engineers Jacksonville District) was received first by the port, who then forwarded it to Arthur Roth, principle of HRK. The GRR is the Army Corp’s evaluation of the project in terms of costs, suitability, and environmental impact. GRR findings and conclusions were utilized to support the use of federal funds for the dredging portion of the port’s phase III project.

In their report, USACE explains their assessment that the use of the old gypsum stacks is of a "heightened level of concern“ and that while the plan was financially acceptable, "The LPP (locally preferred plan) cannot be recommended for implementation. While the LPP is economically justified, significant issues relating to the use of Piney Point as a dredged material placement facility must be resolved before the LPP can be recommended as an acceptable plan ...“ The USACE provides a few main points for their opinion. "The gypsum stack itself is not an engineered structure,“ and, "The gypsum stack itself contains hazardous and toxic material,“ and, "There is documentation of past slope stability and piping issues experienced at the site.“

Most strikingly, USACE states their greatest concern as, "The worst case scenario for Piney Point being used as a dredged material disposal facility would be a breach in the liner. Such a breach would allow water to saturate and cause a failure to the gypsum stack, enabling the mixing of large volumes of dredged material with large volumes of phosphogypsum ...“

These ominous warnings came four years prior to the liner failure that occurred during dredging operations in June of 2011, and almost thirteen years prior to the current liner failures in March of 2021.

August 15, 2008: Roth forwarded the email he received from the office of Joe Gontarski of the port containing the USACE’s "General Reevaluation Report“ to an HRK employee. Roth expresses frustration after reading the USACE report at one point writing, "I got through 5 pages of this utter nonsense from the ACOE before my blood pressure hit the red zone.“ Roth continues, "ÉObviously, facts, experience and expert opinion don't matter. I had a long conversation yesterday with Joe Gontarsky* (sic) about this document. If I heard him correctly, Joe now feels that the only way to resolve this obstinancy (sic) on the part of the Jacksonville district is to go over their heads to Secretary Woodley*.“

*Joe Gontarski served as Port Manatee's senior director and assistant to Executive Director David McDonald. John Woodley served as Assistant Secretary of the Army for Civil Works, US Dept Army Corps of Engineers from 2003 to 2009.

In their report, the USACE acknowledged the constraint of the port’s onsite dredge containment area. "Dredged material was placed in the Port's 100-acre dredged material management area, and it was believed that the disposal site would provide ample capacity for the construction of Phases II and III, and continued maintenance dredging on a 3-year cycle for 20 years. However, dredged material volumes from construction of berth 5 were not taken into account É The identification of additional dredged material disposal capacity is now required to accommodate material from construction of Phase III É“

The report provides alternative options for dredge disposal and details cost comparisons. The USACE’s recommended alternative was the use of the "Ocean Dredged Material Disposal Site“ (ODMDS), a federally approved disposal site located in the Gulf of Mexico, about 27 miles west-southwest of Manatee Harbor.

"The local sponsor (the Port), the site owner (HRK), and the State of Florida Department of Environmental Protection (FDEP) have supplied data and have asserted that the site (Piney Point) is approved for the use intended. However, the Corps of Engineers has found the data to be inconclusive É“

August 20, 2008: FDEP approved the beneficial use of Piney Point for the disposal of dredge material generated by Port Manatee for the construction of berth 12 and the 20-year maintenance dredging.

September 23, 2008: In an email,Arthur Roth wrote to Nadim Fuleihan requesting the services of Ardaman and Fuleihan in the creation of a Feasibility of Use Evaluation and Risk Assessment to address the concerns raised by the USACE.

Approximately an hour and a half later, Fuleihan replied to Roth’s email and carbon copied George Isiminger, Senior Director of Planning and Engineering at the port, and John Coates of FDEP. The correspondence references the fact that Ardaman & Associates is the Engineer of record retained by FDEP. "In response to your request for an RFP (request for proposal), Ardaman & Associates, Inc. would be pleased to assist HRK and Port Manatee in providing technical support to address issues raised by the U.S. Army Corps of Engineers (ACOE) provided there is general consensus amongst all parties about Ardaman's dual role in working closely with FDEP on closure of the Piney Point phosphogypsum stack system and providing assistance to HRK and Port Manatee on dredge disposal at Piney Point, and as long as the FDEP confirms to us in writing that such assistance does not in their opinion represent a conflict of interest (COI). I would also need HRK to agree in writing that should we be retained by HRK to assist ...“ The email then outlines the proposed scope and cost of their work before stating, "I am copying John Coates on this submittal as I need the Department's consent before proceeding further.“

September 24, 2008: Roth replied to Fuleihan’s proposal, "We understand Ardaman's position with respect to its ongoing work with the FDEP to complete closure of the gypsum stack system at Piney Point. In this regard, I believe that HRK will be able to provide you with the written assurance you request with respect to Ardaman being an expert representing FDEP in any future consultations or proceedings and our agreement not to raise any conflict of interest issues in this regard ...“ Again, the correspondence is carbon copied to multiple individuals, including John Coates of FDEP and George Isiminger of the port.

October 3, 2008: John Coates of FDEP responded, copying his reply to Richard Cantrell and Jon Alden of FDEP, Ardaman, Roth (HRK), George Isiminger and Joe Gontarski of Port Manatee, and David McDonald, Executive Director of Port Manatee. "The Department believes that Ardaman's role in working closely with the Department on the ongoing closure of the Piney Point phosphogypsum stack system, and providing assistance to HRK on the above referenced dredge disposal services at Piney Point does not represent a conflict of interest (COI) É with the particular understanding that HRK agrees not to raise any potential claims of a COI among the Department, HRK, and the Engineer in this regard É“

December 9, 2008: As requested by Roth, Ardaman and Fuleihan completed the Feasibility of Use Evaluation to address issues raised by Col Paul Grosskruger of USACE’s Jacksonville District. The evaluation assessed the feasibility of Piney Point’s phosphogypsum stack system as a dredge disposal area and served as a professional engineer’s certification of the site’s proposed use as safe and suitable. Ardaman’s report addressed three specific issues; certification of plans and drawings, safe storage of dredge and amount, and capability of a protective liner to withstand pressures of dredge material. "A liner tear is unlikely to develop in light of the special design features discussed É In the unlikely event that a liner breach were to develop, the underlying silt-sized gypsum crystals would act as a filter to the dredged material, and the dredged material would likely plug the breach in the liner or at least retard flow through the breach. Any leakage through such a breach would be collected in the perimeter drain system É“

January 14, 2009: During a site visit, USACE Jacksonville District informed the port that they desired a risk assessment to supplement the December 9 feasibility of use report.

February 20, 2009: A memorandum to the port from USACE provided detailed guidance for completion of the supportive risk assessment. The memorandum requested that a risk-based evaluation, including a Potential Failure Mode Analysis (PFMA), be completed in accordance with Chapter 14 of the Federal Energy Regulatory Commission’s "Dam Safety Performance Monitoring Program.“ Chapter 14 guidelines present a set of procedures and criteria for the evaluation of safety and performance of FERC regulated water retaining projects.

July 27, 2009: Ardaman’s "Geotechnical Engineering Risk Assessment for Potential Use of Lined Reservoirs at the Piney Point Phosphogypsum Stack System for Dredge Material Disposal" was used as the basis for the requested risk assessment, evaluating impact or consequences of potential failure modes of the liner or stack system at Piney Point.

Chapter 14 of the FERC, titled Dam Safety Performance Monitoring Program, recommends that a Potential Failure Mode Analysis (PFMA) include the use of a "core team“ of individuals familiar with dam failure mechanisms. This team was anticipated to be made up of a team leader, independent consultant, technical representatives of the owner’s staff, the federal regulatory inspector, a facilitator, and other technical representatives such as geologists or geotechnical engineers. Within the risk assessment it is stated, "É in this instance, most of those proposed Core Team members or equivalents are not available for this purpose. To approximate the effect of the ÔCore Team’, discussions were held utilizing FDEP’s engineer, HRK representatives and consultants, FDEP staff, and other field staff associated with the past operation or construction of the site É“

Ardaman’s assessment considered four potential failure modes: overtopping, piping, foundation instability, and liner leakage. Concerning the "worst-case scenario“ of a liner failure as described by USACE, the report addressed these probabilities under separate potential causes. The risk of liner failure due to an existing anomaly, "the probability of an existing liner leak is deemed to be essentially zero.“ The risk of liner failure due to differential settlement, "É settlement does not raise concerns from a liner integrity standpointÉ“ The risk of a liner leak due to service stresses, "Éprobability of a liner tear due to concentrated in-service stresses is deemed to be extremely smallÉ“ Risk of dredge material impact damage, "Éprovisions, when properly executed, are expected to virtually eliminate the probability of an impact-related liner damage during dredge disposal operations...“ Risk of mechanical damage to the liner is assessed as the greatest risk due to potential for human error, but with oversight, any damage in this regard would be realized, repaired, and risk of leakage mitigated "Éthe risk of damage is expected to be most prevalent along the upper slopes and on the dike crest roads which is less critical from a leak potential standpoint ...“

The report also detailed various modifications made during the previous years of closure work, including drainage systems, which would contain water to the site in the unlikely event of a leak.

November 16, 2009: Jack Rintoul, Deputy District Engineer with the USACE Planning Division, sent a written communication to David McDonald, Executive Director of Port Manatee. In the opening sentences, Rintoul confirms the position of the Jacksonville District ACE, "É we do not endorse the use of Piney Point as the dredged material disposal site É“ The four-page communication provides a summary of review findings, "The Piney Point site, while remediated, does contain hazardous substances. The risk of structural failure, while low, does exist. Consequences of system failure are damaging to the environment and human health due to the potential release of increased levels of hazardous substances. Use of Piney Point potentially exposes the Federal government to liability in the event of a failure of breach. An alternative that is both environmentally acceptable and least cost has been identified ...“ Rintoul explains that based on the USACE assessment, he does not believe the additional work done on the risk assessment by Ardaman will result in a waiver of Corps policy, "The primary basis for my conclusion is that use of Piney Point involves an acknowledged risk of environmental contamination, however small, that can be avoided by use of an acceptable alternative disposal site.“

February 21, 2011: During work on the stack system, a crane toppled into a lined reservoir within Piney Point’s gypsum stacks. FDEP ordered a complete inspection of the reservoir’s liner. During the inspection, a tear along a seam in the southwest corner of the reservoir, unrelated to and more than 100 feet away from the crane damage, was identified. Both the crane damage and the unrelated tear were repaired. The port was never notified of the liner tear that was discovered, according to reporting in the Bradenton Herald in 2012.

April 18, 2011: A letter addressed to McDonald arrived more than a year after the USACE Jacksonville correspondence. Sent by Jo-Ellen Darcy, Assistant Secretary of the Army Civil Works DC, the opening of the letter acknowledges the previous letter from Jacksonville USACE in 2009. The letter states that the decisions relayed in the 2009 letter were made after "extensive evaluation“ and that Army Civil works concurred with those assessments. "É the Corps does not believe the Piney Point site is a suitable disposal site for this project. Use of Piney Point involves an acknowledged risk of environmental contamination that can be avoided by use of an acceptable, less costly alternative disposal site ...,“ adding, "After careful review of the material you provided, I concur with the Corps É“

April 22, 2011: The Great Lakes Dredge and Dock Company, under contract with Port Manatee, commenced dredging operations for the construction of Port Manatee's berth 12. The dredged material was pumped by high-power hydraulic pumps through roughly three miles of pipe directly to the stack system of Piney Point.

May 11, 2011: HRK reported to FDEP that they were monitoring an increase in drain flow rate and conductivity which may indicate a breach of the liner. The drain conductivity, PH, and other characteristics observed indicate that the drain flows are seawater from the dredge operation.

May 28, 2011: Monitored drain flow rates remain high as seawater pressurizes the buried drain entering lined stormwater ditches along the south perimeter of the stack system. A bulge and cracking appear at the south wall of reservoir OGS-S (old gypsum stack south).

May 29, 2011: Having determined the evolving situation as reported by HRK created an imminent threat of containment failure and catastrophic release of large amounts of seawater, FDEP issues an emergency order permitting HRK to begin releasing water from the stack system in an effort to reduce the amount of water pressure within the affected area. "The Department is entering this Emergency Final Order to protect human health and safety and to protect the environment from a potential catastrophic failure of the containment system at the Facility ...“

On or around June 4, dredging operations were halted. The tear in the stack liner and subsequent release of waters to protect the stack system’s stability results in roughly 170 million gallons of phosphate-tainted water entering nearby Bishop Harbor the first week of June 2011.

June 22, 2011: The source of the leak is identified, and repairs are completed. The Piney Point stack system resumes taking on dredge material after state officials inspect and approve the repairs (asreportedby the Bradenton Herald).

In the 2013 complaint, HRK cited an additional outcome of the liner failure of 2011. Not only did the liner failure result in the release of 170 million gallons of wastewater into nearby Bishop Harbor, but the liner leak also resulted in a "massive increase“ in process water being stored on the site. "É millions of gallons of seawater which passed through the gypsum foundation, was commingled with contaminated process water in the seepage ditch surrounding the gypsum system and which was released into the surrounding floodplain. The water released from NGS-S had to be placed into another gypsum cell holding contaminated process water while the liner in NGS-S was being repaired, resulting in a massive increase in the volume of process water É“

On page 16 of the 52-page complaint, HRK alleges that in 2009, as Ardaman prepared the risk assessment for Piney Point, the firm had knowledge of an 80-mil HDPE liner (like the one utilized at Piney Point) experiencing numerous tears and punctures at the Plant City site where Ardaman served as principal engineer. On August 3, 2009, Ardaman and Fuleihan issued a report summary of those liner tears. The complaint states, "Photographs taken on or about April 19, 2009, at the CF Industries Plant City facility depict large cracks and fissures in the gypsum subsurface which provides the foundation for the 80-mil HDPE geomembrane liner installed at that facility as part of the closure construction... The HDPE liner showed numerous tears and 17 puncturesÉ Additional reports were prepared by Defendant ARDAMAN on May 17, 2010, June 13, 2010 and November 17, 2011, and a meeting was held with CF Industries and FDEP on June 30, 2010 to discuss the plan of action for remediation É“ The complaint alleged that Ardaman never informed HRK of the known liner tears at the Plant City site.

September 2011: Following the liner failure at Piney Point, HRK hired the services of an independent geomembrane expert, Dr. Ian Peggs (Ph.D., PE., P.ENG.), to conduct a thorough review of the liner and its failure. Dr. Peggs concluded that stress cracks were present along extrusion seams before the reservoir was filled with water. When covered by water, the cracks started to leak. Subgrade support for the liner was lost as the subgrade eroded away until the pressure of the water on top of the then-unsupported liner caused the liner to tear.

An additional geomembrane expert provided an affidavit for the 2013 pre-litigation. Dr. Jean Pierre-Giroud, a civil engineer with a Ph.D. in geotechnical engineering and expertise in geomembranes, gave a statement in line with the conclusion Dr. Peggs provided in his 2011 report. Dr. Giroud further attested that Ardaman should have known that a liner leak and instability to the gyp-stack subgrade was likely to occur at Piney Point. "The concerns of a liner leak and accompanying dissolution of the gypsum subgrade which had been voiced by the USACE in 2008 had in fact come to fruition É“

March 2021:After a new leak was discovered in the NGS-S, due to tears in the liner, FDEP issued an emergency order authorizing the release of hundreds of millions of gallons of wastewater from the stack into a channel at Port Manatee in order to avoid the imminent threat of an even more catastrophic release of wastewater that threatened to flood Port Manatee, the Manatee County Jail, and surrounding businesses and residences. The governor has since promised to fully close the site, and the Manatee County Commission recently voted to construct a controversial deep-well injection site on county property just south of Piney Point where water from the stacks will be deposited, promising it would only do so after the water had been treated to acceptable levels.

Comments

No comments on this item

Only paid subscribers can comment
Please log in to comment by clicking here.