Friends of Perdido Bay
10738 Lillian Highway
Pensacola, FL 32506
Tidings The Newsletter of the Friends of Perdido Bay
Folks, it is time we brought you up to date on all the happenings on Perdido Bay, live and with questions you can ask. There are two legal actions. One is an administrative hearing on the International Paper's proposed permit. The other is the resurrection of Ester Johnson's lawsuit which appears to be going as a "class action". Action in the administrative hearing is fast and furious. Ester's lawsuit is a little slower moving. The meeting is going to be at the St. Joseph's Parish Hall in Lillian, Alabama, September 8, 2005 beginning at 7:00 PM.
We will be voting on small changes we made to our incorporation papers. If you cannot attend the meeting, please fill out the enclosed Proxy Postcard.
Changes to Friend's Incorporation Papers
For Friends of Perdido Bay to enter the Administrative Hearing process in Florida, we had to review our incorporation papers. Yes, we were able to find them, but we saw that there were technical errors in the incorporation papers. The purpose of the corporation is to protect properties in Florida and Alabama. But due to a scrivener's error, Florida was left out. Since we obviously have been protecting properties in both Florida and Alabama for the past 18 years, we had to correct this language and add Florida.
The Board of Friends of Perdido Bay has unanimously voted to correct and update the Articles of Incorporation. The membership must now approve these changes to our Articles of Incorporation. If you cannot attend the meeting and vote on these changes, please fill out the enclosed proxy postcard. Postage has already been paid. Only paid-up members will be eligible to vote. We need a quorum of members to vote to make the process legitimate.
Ester's suit, as we call the lawsuit, was filed in Escambia County Circuit Court in March 16, 2000. Steve Medina, a lone lawyer at that time, was the attorney. He filed a complaint which contained both administrative issues to try and get DEP to fine the paper mill for violations in the creek, and civil issues asking damages for negligence and nuisance. Judge Michael Jones, the same judge we have today, ruled that administrative issues had to be decided in administrative court before they could come to a county circuit court. So he abated (put on hold) the lawsuit.
Today, the lawsuit is in its fifth amended complaint. It is being presented as a "class action". There are seven counts or violations to peoples rights. They are Negligence, Negligence per se, Trespass, Private Nuisance to Riparian Property Interests, Common Law Strict Liability, Statutory Strict Liability, and Unjust Enrichment. No more administrative issues. The attorneys in this suit have become more numerous. The plaintiffs' (that is us) attorneys are: Michael Papantonio from Levin, Papantonio; James McKenzie and Philip Warren from McKenzie, Taylor & Zarzaur (we met them at the meeting on May 18th); Lawrence Keefe from Anchors, Foster, McInnis & Keefe in Ft. Walton Beach; David Byrne and Rhon Jones from Beasley, Allen Crow, Methvin, Portis & Miles in Montgomery, AL; and Robert Kennedy, Jr., Kevin Madonna, and Daniel Estrin from Kennedy & Madonna in White Plains, NY. This certainly does seem like a formidable group.
There is going to be a hearing on the Motion for Leave to File the Fifth Amended Complaint on August 23, 2005 at 10:00 AM in the Judicial Building, Pensacola before Judge Michael Jones. As far as I know, the public ought to be able to attend.
In order for the suit to proceed as a "class action", the Court must accept the Plaintiffs' attorneys request to make the suit a "class action". This means that all members of the class must have common complaints against the defendant. The Court, at a class certification hearing, determines if all members of the class have similar complaints. Right now, it appears that the class certification hearing will not occur for perhaps, six months. So it appears that we are a long way from actually getting to a trial on the damage issues.
If you are interested and have a computer with internet access, you can access a record of the papers that have been filed in this case. Type www.clerk.co.escambia.fl.us , when the home page comes up; select public records, then you will be asked for a case number. For the case number, type in 2000 CA 000495. The case is still filed under Champion's name. Very interesting.
The Administrative Challenge to the IP Permit
The action in this case is hot and heavy. It seems like every day we file a new motion, answer, request, etc. Right now, we are asking the Judge in this case to postpone the hearing and abate the proceedings until the proposed permit is modified to reflect the process changes that IP has announced. International Paper announced that they were going to manufacture a different type of paper. We have gotten a little more detail on this change. According to a paper filed by IP's attorney, IP plans to change one paper machine from bleached kraft to brown kraft and shut down one of its bleach plants. Because we consider these changes to be major modifications which would require a different permit with different limits, we are asking the judge to not go forward with the hearing on the current draft permit which was drafted for a totally bleach mill operation. IP is opposing any change to the current permit. However, until the Judge rules on our request, we are going ahead with planning for a hearing in December. Right now, the dates for the administrative hearing are set for December 5th thru 9th and 12th thru 16th in Pensacola. But as you can see, events change rapidly.
To keep informed in this case, go to www.friendsofperdidobay.com where we have a link to the Division of Administrative Hearings website (DOAH). The number of the case is 05-1609. There is more than one case number but this one will get you to our case. The DOAH website is great. Not only can you see what has been filed but you can also read all the papers. If you have nothing better to do, you can read the pleadings and get some in site into the process.
Public Health Issue
One of the issues we are raising at the hearing is the danger of swimming in water which contains paper mill effluent. One of the basic problems with paper mill effluent is that it contains large amounts of organic material. This material is food for bacteria. In small bays which don't get sufficient dilution, like Perdido Bay, bacteria populations feed off this organic material and use up the oxygen. Populations of bacteria can be quite high in these bays. Among the populations of bacteria are pathogens. The bacteria Klebsiella pneumoniae, which can cause pneumonia and other diseases, is associated with paper mill effluent.
We want to know if you have ever gotten an infection or gotten sick after swimming in Perdido Bay. Please write or call us and we may call you for the hearing. If you are currently sick or have an infection now from swimming in Perdido Bay, call us immediately. The number and address are on the heading of this newsletter. Both my husband, myself and several of our children have gotten infections from swimming in the bay. (If you do happen to get cut or scrape while in the bay, or enter the bay with a cut or scrape, we recommend washing it thoroughly with hydrogen peroxide, applying anti-bacteria ointment and watching it closely. If it shows any signs of infection, see a physician as soon as possible.)
One of the biggest problems with paper mill effluent in this bay is the lack of dilution. The EPA and DEP recommend a dilution of 100 parts of dilution water to 1 part polluted water. In the upper part of Perdido Bay in the rainy season, we may get 20 parts to 1. In the dry season, the dilution is more like 10 parts to 1. Perdido Bay is no place for a mass polluter like IP. More dilution was one of the reasons we thought that going to Escambia Bay would be better.
As we go through the discovery process, we learn more and more about the terrible damages that IP has caused and how they have caused these damages to our bay and the environment. One of the pieces of information that we learned is the fact that IP has most likely been discharging chlorate into the bay. Chlorate is a potent herbicide. It is a precursor and product of the chlorine dioxide bleaching process. In a report written by Dr. Norm Liebergott, a bleaching expert hired by Linda Young, he discusses the bleaching process (and its problems) at the Cantonment mill. One of the things he says is that the amount of chlorate produced is proportional to the amount of chlorine dioxide used in bleaching. He further goes on to say in his report that chlorate can be removed, if the mill uses certain chemicals.
In the mid to late 1990's Friends of Perdido Bay wondered if chlorate was coming from the paper mill. Samples we sent off for analysis from Eleven Mile Creek had both chlorate and chlorine dioxide present. When we questioned DEP about this, they referred the matter to the paper industry experts. As usual they lied - "No, chlorate is not produced using chlorine dioxide." According to Dr. Liebergott, the paper industry and probably the environmental agencies have know that chlorine dioxide produces chlorate since at least the 1970's. So now we know what happened to our grass beds.
Arsenic and dioxin - we will tell you about that in our next issue.
Who's protecting the bay? By Jim Lane
Naively, I used to think that the government was working hard to make our bays, rivers, lakes, and Gulf clean, beautiful, productive bodies of water. After all, there were agencies in the federal, state, and local governments with names that implied that they were protecting the water bodies. Weren't they taking care of things? Didn't I have to do nothing but enjoy these government protected and managed water bodies? My naivety began to wear off when I noticed that the Gulf and bays were getting worse year by year. That was twenty years ago.
Since then I have slowly learned why water quality continues to get worse. In a word, it's politics. Our representatives, who enact the laws, are elected in expensive campaigns paid for by contributions. Most of the big contributors are large businesses or upper-echelon employees of large businesses. Most large businesses are interested in only one thing - making profits - and they don't want government regulations getting in the way. These big contributors hire lobbyists to present their case to elected officials, and their big contributions buy them direct access. As a result, the laws passed are tilted strongly against effective protection of the bays and Gulf you and your family might like to enjoy.
What's the solution? Get involved in politics. You can do this in many ways, but the most direct way is to run for office. We need more ordinary citizens running for office who are interested only in the real welfare of their community. To quote Henry David Thoreau, "There are a thousand hacking at the branches of evil to one who is striking at the root."