Friends of Perdido Bay
10738 Lillian Highway
Pensacola, FL 32506
Tidings The Newsletter of the Friends of Perdido Bay
August 2007 Volume 20 Number 4 Jackie Lane -Editor
Florida’s Final Order is out - “Deny permit for IP’s pipeline and wetlands”
It is a victory for Perdido Bay - we hope. On August 8, 2007, Michael Sole, Secretary of Florida’s DEP, issued the Final Order in Friends of Perdido Bay’s challenge to IP’s proposed permit to construct the wetlands and the pipeline to the wetlands. Basically, the Final Order said that IP had not provided reasonable assurances that their effluent would not damage the fauna and flora in the area proposed for the wetland discharge. The decision is a victory because; 1) it has stopped construction of the pipeline and the wetlands, and 2) IP still does not have a current permit to operate. IP has already asked the state to “stay” execution of final order pending the outcome of an appeal. If the state “stays” the final order, IP can continue to operate in the same manner they have been operating - in limbo, in Elevenmile Creek.
Appeals can take years. Friends of Perdido Bay is going to fight the stay and then the “in limbo” situation of staying in Elevenmile Creek. We are also going to seek fines and/or a bond for the violations in Eleven mile Creek. What impetus does IP have to do anything else if they are not fined for violations? Our attorneys are going to ask that IP post a bond (a big one) for violations they cause during the appeals process. Maybe fines will get the process moving a little faster. Meanwhile IP announced that their plans to convert to brown cardboard in the third quarter of 2007 are on schedule.
One troubling aspect of the final order is that the Secretary of DEP rejected our claims that the limits which were in the proposed permit were too high and caused harm to the bay. Both the administrative law judge and the Secretary of DEP did not deny the permit on the basis that it caused harm to Perdido Bay. The blarney of Dr. Livingston who testified for two days apparently held a lot of weight with the judge. At the trial Dr. Livingston, IP’s biological consultant, was still saying that the problems in Perdido Bay were caused by salt water coming from the Gulf of Mexico. The salt water travels up the bay on the bottom and oxygen in the water is sucked out by the bottom sediments. When questioned about where the oxygen-sucking, bottom sediments came from, both Dr. Livingston and Tom Gallagher, the other IP consultant, said the Perdido River. When we asked both consultants about the fate of the 10,000 pounds per day of solids the paper mill is allowed to legally dump into Eleven mile Creek, both IP consultants gave evasive answers. Tom Gallagher’s model did not predict any of these solids would settle in Perdido Bay sediments because he set (before he even ran the model) the amount that would settle on the bottom to 0. This is one way you can get a model to predict what you want it to predict - set the parameters before you start running the model.
About a month before the Final Order came out, ECUA announced that they were pulling out of the agreement with IP to build the pipeline. ECUA said that the whole process was taking too long. So if IP had prevailed at the hearing, they would have had to build the pipeline themselves - no public/private partnership that David Struhs, former DEP secretary (and now IP vice-president) had cooked up. I guess we have saved IP a lot of money, but they still have no current, valid permit.
Thank you to all our members who wrote letters and Governor Crist.
We just wanted to thank everyone who wrote letters to our elected officials about upholding the Recommended Order. It must have helped our cause. We also want to applaud the enlightened leadership of Governor Charlie Crist.
Judge in the Class Action Lawsuit - “No Class”
Several weeks before the Final Order came out, Judge Michael Jones ruled on the class certification of Ester Johnson’s lawsuit. The Judge ruled that he would not certify this lawsuit as a “class action”. Based on the Judges’s ruling, if people are claiming damages for harm to their properties by IP, suits will have to be filed on an individual basis. The Judge’s order was based on the fact that he claimed the class representatives were not “typical” of all members of the people who own property on Perdido Bay. The Judge wrote that landowners on Perdido Bay included absent landowners who owned large tracts of land, renters, churches, and the military, while the class representatives only included people who resided on the bay year round and who owned homes on the bay.
The Judge also denied certification to the class because he felt the claims against IP were not representative of all potential class members claims. After six years of changing charges, the only claim that the plaintiffs’ (our side) attorneys sought damages for in the class action was “negligence”. The damages sought were for temporary damages. I, an Intervenor, in this lawsuit, thought that this charge was very weak. The plaintiffs’ attorneys went out of their way at the trial, to state that the complaints of chemical trespass on our properties and other charges such as nuisance had been dropped. Why? We certainly had evidence which showed that the muck that washed onto our properties after Hurricane Ivan contained chemicals, including dioxin and arsenic, which came from IP. We had pictures of foam coming out of IP’s foam suppression tower and foam on our beaches. We had experts who testified that they could trace foam from our beaches to foam from the mill. So why was negligence the only complaint? I believe the evidence was very strong and a jury would have awarded our side a lot of money.
But now that the Judge has denied “class certification”, the plaintiffs’ attorneys are not going to pursue the issue any further. This means that IP may not have to pay for the years of damages that they have caused unless an interested attorney can be found. There were some really big law firms representing the plaintiffs in this case - Levin - Papantonio, Robert Kennedy’s law firm, a huge firm out of Birmingham, Al - surely they could have done better than this.
Another curious thing was the fact that the plaintiffs’ attorneys refused to help us fight the permit. The Levin firm had hired several experts to do studies in the bay. The experts and their data would have been helpful in our permit fight. Steve Medina who works for Levin was adamant that they were not going to help us. Although Steve Medina sent me the results of the studies, he instructed his experts not to testify, thereby making the studies “hearsay”. Hearsay evidence can not be used as evidence in a trial. So the evidence which Plaintiffs’ attorneys gathered was useless to us. We never understood why the plaintiffs’ attorneys did that.
Perdido River fish are not too good, not too bad
Recently you may have read about the results of a study done by the University of West Florida on the dioxins and PCB’s in fish in Escambia River and Bay. Extremely high levels of PCB’s were found in mullet from Lower Escambia River. Samples of mullet and large mouth bass were also collected in Eleven Mile Creek and the Perdido River at the mouth (lower Perdido River) and about 4 miles up Perdido River at the junction with the Styx River (upper Perdido River). The EPA recommends that a level of Total Equivalents (TEQ) of dioxins and PCB’s of over 0.26 ng/Kg may not be safe for human consumption. The samples of mullet measured: 0.68 - Eleven mile, 0.55 - Upper Perdido River, and 0.33 -lower Perdido River. All TEQ’s from mullet in the Perdido River were above recommended safe levels (as the levels rise, there is an increased risk of cancer). When compared with mullet from Bayou Chico which had a TEQ of 1.96, Perdido’s mullet were not too bad. The lowest levels of dioxins and PCB’s (0.29) were found in lower Yellow River/Blackwater Bay mullet. What was curious was that Upper Perdido River mullet had higher levels of dioxins and PCB’s than lower Perdido River mullet. One possible explanation may be that the PCB’s and dioxins are deposited in the bottom sediments from air-born contamination in the upper part of the Perdido watershed. Another explanation may be that the mullet in the lower river had just entered the river. Mullet feed on bottom sediments.
Dioxin and PCB TEQ’s for large mouth bass from the Perdido River and Eleven mile Creek are: Eleven Mile Creek - 0.35; Lower Perdido River - 0.35; and Upper Perdido River - 0.27. Remember, the recommended safe limit is 0.26 ng/kg. Large mouth bass from both the lower and upper Perdido River, but not Eleven Mile Creek, were contaminated with mercury above safe levels. Mercury levels below 0.40 mg/kg are considered safe. Large mouth bass from lower Perdido River had mercury levels of 0.56 and upper Perdido River had mercury levels of 0.78. Again the higher levels of mercury in bass further up Perdido River may indicate the source of the mercury is in the air.
In this study by the University of West Florida, fish were not sampled in Perdido Bay. We are not really sure why no mullet or bass were taken from the bay.
The University of West Florida studied dioxin/ PCB and heavy metal contamination in blue crabs from Perdido Bay several years ago. While the meat from blue crabs was safe, if you were to include the hepatopancreas (liver) from the crabs (for crab cakes), immediately the levels of dioxins/PCB rose into unsafe levels. Levels of arsenic in blue crabs from Perdido Bay were very high and rose as you went down the bay. This is not surprising. Sediments in bay just north of Innerarity are more contaminated than other areas in the bay. Thus the animals which live in or on those sediments would have more contamination. You can read the reports at
It is discouraging that an area which has so much natural beauty is also very badly contaminated. The levels of cancer in Escambia County are very high. A report compared health in Escambia County to two similar counties in Florida, Leon and Alachua County. Escambia County fared very badly in incidences of several types of cancer. When you look at the toxic release inventory (TRI’s), you will see that Escambia ranks in the upper 10 percentile of 3,500 counties in the U.S. for air releases or carcinogens and other air and water pollutants, especially in the 32533 zip code ( Go to www.scorecard.org). What is even worse is that many of the toxic air pollutants are not measured or even reported. The dioxin that we found in the sediments of Perdido Bay after Hurricane Ivan came from combustion products. Is anyone measuring the dioxin put into the air by the burning of wood products at IP? NO. But a former environmental engineer at IP testified for our administrative hearing that IP has to be putting out dioxin since they burn wood to generate power at the mill.
Much of the mercury and arsenic contamination in the fish comes from the burning of coal. IP and especially Gulf Power use a lot of coal for energy generation. Sulfur is another contaminate of coal. The power companies have been addressing the sulfur pollution which causes acid rain, but certainly more needs to be done. It is unfortunate that better air pollution control devises are not used. Coal which is a relatively plentiful and cheap causes so much environmental damage which perhaps could be overcome with better control devices.
Last year, a local environmental group, Citizens Against Toxic Exposure (CATE) formed the Bay Area Safe Coalition. They got a grant to study the air pollutants around several of the industrial facilities in this area. They recently released a report to Escambia County Commissioners. In the report they found Nitric Oxide, Toluene, ammonia, alpha-pinene and dimethyl sulfide were released in harmful quantities at IP. Solutia released acetone. And so it goes. All these industries are allowed to “vent” air pollutants for short periods of time without having to report these incidents to DEP. Who knows what they vent. It isn’t good and certainly affects the quality of life of local residents, whether the residents know it or not. If you are interested in volunteering your time once a month to collect air samples, call CATE at 850-478-5799 or 850-478-5794. Or e-mail firstname.lastname@example.org. Francine is looking for volunteers to help with this very important sampling. Once CATE gets this data, they are planing to publicize the results to try and get some action on a very serious problem.