Friends of Perdido Bay
10738 Lillian Highway
Pensacola, FL 32506
Tidings The Newsletter of the Friends of Perdido Bay
April 2007 Volume 20 Number 2 Jackie Lane -Editor
Waiting for a Decision
As of the date of the writing of this newsletter, the hearing officer has not issued a recommended order on the administrative hearing held for 11-days last summer on International Paper’s plan to pipe their effluent to a 1,300 acre tract of land on the shores of Perdido Bay. The plan, as we viewed it, allowed IP to go directly to Perdido Bay via an overland flow without having to meet water quality standards for at least nine years. IP’s claims that the effluent would be cleaned up by this overland flow were not substantiated by expert witnesses. Further, IP’s announcement, made during the administrative process, to switch to making brown cardboard and doubling production made the environmental impact even more uncertain. According to Florida rules, the applicant for a permit is supposed to provide “reasonable assurances” that by issuance of the permit, Florida standards will not be violated. The environmental impact of doubling paper production was hardly touched on during the hearing.
Last month, the administrative hearing officer did request additional arguments on whether or not the rule which IP used to apply their effluent to the wetland was necessary for issuing a permit and whether or not all aspects of the rule had been fulfilled. All parties argued that the ruled IP used was necessary but differed on whether or not all aspects of the rule had been fulfilled. We argued that IP had ignored certain aspects of the rule. DEP’s argument was interesting in that DEP really did not answer the question. Basically DEP said that the EPA had oversight and that if EPA did not like DEP’s decisions, EPA could overrule DEP’s decisions.
In the meantime, IP continues to operate on a permit which expired in 1994. IP’s legal basis for continuing to operate gets more and more tenuous. Florida rules prohibit dischargers from operating without a valid permit. We have come to the conclusion that neither DEP or EPA has the guts to shut down the paper mill, but will let the mill continue to operate and violate state and federal laws.
Rules are not for Everyone
Twenty years ago, when we first began our quest to clean up Perdido Bay, we were naive enough to believe that the paper mill would have to comply with environmental rules - both state and federal rules. There was a Consent Order issued in 1989 which gave then-owners of the paper mill, Champion, five years to comply with state and federal law. There was a study done by a then-prominent scientist, Dr. Robert Livingston, to determine what was wrong with Perdido Bay and a Consent Order to correct the problems and come into compliance with state and federal laws. Of course, the cause of the problems was obvious. Biologists at DEP and a review of old studies confirmed that the paper mill’s dumping of organic material in Perdido Bay caused the bay to suffer from lack of oxygen. But beyond that, just a common sense understanding that discharging 24 million gallons a day of material which consumes oxygen was just too much for our little bay. If this material had been discharged to a river with a large flow, the damage would not have been nearly so great. If discharged to a large river, the costs to clean up this massive discharge would have been far less. But twenty years ago, we believed what Champion told us - “they would follow the spirit as well as the letter of the law”. And if Champion did not follow the rules, well, there were the environmental agencies to fine them and if necessary, shut the paper mill down. Twenty years later, we know that this was merely a stalling tactic. The environmental agencies and the paper mill were just waiting for us to go away.
The lack of enforcement and complete flaunting of rules, makes a person stop and think. If industry can do this, why can’t everyone? If one entity does not have to follow rules, why should anyone have to follow rules? If an ordinary person decides to dump his garbage in the bay rather than pay to have it picked up, why should he be held accountable? The paper mill has not been held accountable. What is good for the goose is good for the gander. Well, as we have learned, there are degrees of accountability. The more money you have the less accountable you can be. It is obvious that some folks in this area, want the paper mill to keep operating regardless of the impact to us. Most likely, those people who want the paper mill to continue to operate are not living on Perdido Bay. There’s an old saying, “The wheels of justice grind slowly, but they grind exceedingly fine.” We hope that holds in this case.
A New Ploy
If you were big and powerful and knew you were breaking the rules and wanted to continue, what would you do? Change the rules. This is what the big polluters are trying to do now - change the rules. But they are getting lots of bad press. Maybe you read an article recently by Carl Hiaasen on the attempt by Florida regulators to change the way waters in Florida are classified. Carl Hiaasen is the humorist columnist and author who writes for the Miami Herald. Other columnist are also hitting this topic pretty hard - as well they should.
Florida and most states classify their waters in one of five classifications - drinking water (Class I), Shell fish waters (Class II), Recreational use swimming/boating/fishing waters (Class III), agricultural waters (Class IV), and industrial waters (Class V). At this time, there are no Class V waters in the state of Florida. Most waters in the U.S. are classified as Class III waters, suitable for recreational uses. For each class of waters, there are a set of regulations which must be met. In order to get a permit, a discharger must show that they are not causing or contributing to violations of those regulations. For the big polluters, this is tough to do.
Florida is proposing to subdivide the Class III (recreational use) category into three subcategories: HU3 fishing and swimming - full body contact O.K.; HU4 - fishing and limited human contact (splashable); HU5 limited fishing and no human contact (unfishable/unswimable). Each subcategory will have lower standards than presently. We do not know what those standards will be yet, but presumably the limited human contact category will allow higher bacteria levels and higher toxins than are presently allowed. The big polluters would love this. You can go boating but don’t fall in. You can catch a fish, but would you want to eat it from a HU4 or HU5 water? I don’t think so. Water skiing - forget it. In other words, the only real recreational waters under the new classification system would be - HU3. Presently, Perdido Bay is classified as a Class III waters.
Many years ago, people unknowingly ate the shellfish (clams) which covered the bottom of Perdido Bay. The Florida regulators told us it was against the law to eat shellfish out of waters which were not approved for shellfish (Class II waters), and you would be fined if you did so. So presumably, if you were caught swimming in a HU4 or HU5 water, you could be fined under the new classification. How would you like to tell a prospective buyer for your home on Perdido Bay - you can look at it but you can’t swim? And this is coming from a state agency which is supposed to protect our waters for the public. If you are interested in fighting this new classification system, e-mail the governor of Florida. His e-mail address is email@example.com. Tell him to keep the old classification system and enforce it.
You may have heard recently about the tariffs which are being imposed on Chinese glossy paper by the U.S. According to the US Department of Commerce, China is keeping the price of their glossy paper artificially low by subsidizing its industries. This is hurting the U.S. glossy paper manufacturers. When I read this story in the newspaper it struck me as odd, since there are so many other U.S. industries which are suffering similar competition problems from China. There are many U.S. industries which are non-existent because of competition from China, but no complaints were made or tariffs imposed . An April 16, 2007 article in BusinessWeek Online helped explain this interesting phenomena. According to the Business Week article, an unfair trade complaint using the antisubsidy law has not been used by the U.S. for two decades. So what is behind the complaint? The impetus for the compliant, according to the Business Week article is that the U.S. glossy paper makers are now owned by a private equity firm called Cerberus Capital Management. Cerberus Capital Management recently acquired the glossy paper mills from two large paper companies, IP being one of them. The chairman of Cerberus Capital Management is John Snow who was Bush’s Secretary of the Treasury from 2003 to 2006. This private investment group incurred quite a debt in buying the mills and probably would rather not lose money by competing with Chinese glossy paper. It certainly helps to have friends in high places. Since Cerberus Capital Management is a private equity firm, there is no way to really find out whose money is being protected. I suspect that a lot of foreign money is involved.
No Help from the Big Environmental Groups
We have had several of our members inquire if some of the big environmental organizations are aware of our fight on Perdido Bay and if they could help us. The answer is YES, the big environmental organizations and EPA are aware of our problem. The list of people and organizations who received a copy of the IP draft permit include National Resource Defense Counsel (NRDC), EPA, Sierra Club, Alabama regulators, including the Alabama’s attorney general’s office, the Baldwin County District Attorney, and the Baldwin and Escambia County Commissions. No one but us has formally fought the permit. In looking back through the records, there were several groups and people who wrote letters about the shortcomings in IP’s draft permit to go to the wetland. Linda Young of the Clean Water Network along with Jessica Langford of the NRDC wrote scathing comments about the short comings of the proposed permit, but they did not file a petition for an administrative hearing. The Rivera Utilities of Foley, Alabama sent a lengthy letter to DEP outlining their objections with the permit but never formally got involved with the hearing. The sad fact is DEP will receive these letters and may even respond to the objections, but then go ahead and issue the permit without any major changes. IP would have had a valid permit to operate the mill in the Fall of 2004 if Friends of Perdido Bay had not stepped in and stopped the issuance of the permit. Whether or not IP would have actually built the pipeline and the wetlands is just a matter of conjecture.
The real disappointment is the lack of support we received from the attorneys which are running the “Class Action” lawsuit on Perdido Bay. This lawsuit was filed in 2000 by Steve Medina on behest of Linda Young who was working for the Clean Water Network. Ester Johnson was the named plaintiff for the lawsuit. I am an Intervenor in this lawsuit. Originally the lawsuit was an administrative lawsuit seeking fines for non-compliance with state laws. Later it was changed to a Civil Suit seeking damages for the Class of people living on Perdido Bay. The Levin Law Firm along with a big plaintiff firm in Alabama and the Kennedy-Madonna (NRDC) law firm got involved on the side of the plaintiffs. The plaintiffs’ attorneys hired experts to do studies. IP’s attorneys hired experts to refute those studies. For our challenge to the permit, we could have used some of the data collected by the plaintiffs’ attorneys. When we asked Steve Medina from the Levin law firm for help, he made it clear that the plaintiffs’ attorneys were not interested in helping us. They did not allow their witnesses to testify for us. My question is why? Did the plaintiffs’ attorneys want IP to get this permit? Apparently so. Perhaps because the contested permit kept IP out of Escambia Bay? Is it the old adage - “Not in my backyard”? So as the hearing officer in our administrative hearing contemplates the evidence we presented at the hearing this past summer, the “Class Action” lawsuit languishes in Escambia County Court, waiting for the judge, Judge Jones, to issue his Order on whether or not the lawsuit can go forward as a “Class Action”.