Friends of Perdido Bay
10738 Lillian Highway
Pensacola, FL 32506
Tidings The Newsletter of the Friends of Perdido Bay
July 2003 Volume 16 Number 4 Jackie Lane -Editor
Thank you Lillian
Last month Friends of Perdido sent a letter to all Lillian, Alabama residents in the 36549 zip code. We were interested in getting more people to join so that people could say informed about the issues on Perdido Bay, especially now that Florida is preparing to issue a new permit for the paper mill. The response we got was overwhelming. It is especially encouraging for us to see that people really do care about Perdido Bay. Right now it looks like it will be two months before a draft permit is released. But we will be making a calling list, and if something happens sooner we will be able to notify you quickly. We don't expect too much media coverage, but we may be surprised.
Ever since International Paper submitted a revised permit application on September 30, 2002, Florida's DEP has been asking for more information. A permit application is not complete until the environmental agency deems that it is complete. This is how the paper mill in Cantonment Florida has been able to "claim" that they are operating on an administratively continued permit. The old owners of the mill, Champion, submitted a "timely" permit renewal application in September 1994, but the DEP kept asking for more information. The old temporary permit issued in 1989 is still considered to be in effect because the DEP never considered the permit application of 1994 "complete". Well, here we are in 2003. Yes, this is stretching things a bit. IP now appears to be through playing games. They want that permit. One factor may be the importance a current permit plays in a global economy,
On June 20, 2003, DEP sent IP another letter asking for more information. This is about the fourth or fifth time DEP has asked for more information on IP's September 30, 2002 revised permit application. IP replied, saying its response was "provided as a courtesy," and went on to say essentially "Stop asking questions and start processing the permit." Per IP instructions, DEP will issue a draft permit in approximately two months. There will be a public hearing and comment period 30 days after the draft permit is issued, and then the Department will publish "An Intent to Issue" the operating permit. The date will be about October 15th. This is when the real fireworks begin. We will fight this permit for as long as we can.
We will need your help, both time-wise and financial-wise. We are planing some PR to go along with the fight. Remember how successful, Mike Papantonio's TV ads were in keeping the paper mill moving the discharge to Escambia Bay. A few T.V. ads would be a great way to present our side, because we don't know what to expect from the news media.
What a draft permit will likely allow
IP (per their September 30, 2002 letter) is requesting that the new permit have the following:
A new permit will most likely contain all of the above. Otherwise, IP would probably take DEP to court. Who do you think would win? This exemplifies the problem. The stable full of high priced attorneys which IP can afford would, no doubt, overwhelm the legal staff of DEP. This is one reason (there are others) DEP has been stalling on a permit.
In addition to IP's pending permit is Ester Johnson's lawsuit. I am not sure how Ester's lawsuit and IP's permitting situation are related but I think there is a relationship. For about three and a half years, Ester's lawsuit has languished in Court. The original lawsuit was filed on March 16, 2000, and has been amended three times. We are now on the fourth complaint. In June 23, 2000 I made a motion to intervene in the case. At an October 31, 2000 hearing, the judge granted me status as an Intervener. I have watched as Judge Michael Jones denied Champion's Motions to Dismiss the lawsuit several times. While the lawsuit has not been dismissed, it appears to me that very little progress has been made in this lawsuit, or testing done to substantiate the claims. It has been a great stall, just like DEP's permitting stall. The case is now a "class-action" lawsuit and it appears that International Paper's attorneys are going to challenge the class certification. I will give a brief history of the legal ins and outs.
If you are interested in looking at the records which have been filed in the case, you can find a list on the web at www.clerk.co.escambia.fl.us. The case is a Civil case and the number is 2000 CA 000495. Also the records are available at the Judicial Center in Pensacola in the Civil Division on the second floor. Give them the case number and you can access the records.
I came into the case when the second amended complaint was filed. There were five counts or grievances listed in this complaint. The first and the fifth involved forcing DEP to enforce the rules and getting DEP to fine Champion for the violations in Eleven Mile Creek. Judge Michael Jones, much to his credit, did not dismiss these grievances but abated them until all administrative actions, which were going on at that time, had run their course. It is a good thing that the Judge did not dismiss these grievances because once dismissed, the issue of past violations in the creek could not be brought up again. The other grievances which were raised in the second complaint were negligence and negligence per se. These grievances were not dismissed, nor were they abated. In a ruling on January 24, 2002, Judge Jones allowed Ester's attorney, Steve Medina, 30 days to amend the second complaint.
The 30 days which Judge Jones gave to Steve Medina came and went. There were a series of stipulated motions (motions agreed to by both sides) to extend the time for filing an amended complaint. Finally, on July 24, 2002, Steve Medina, who by that time had joined the Levin law firm, filed the third amended complaint. In this complaint, he had changed all the grievances to common law complaints of negligence, negligence per se, and trespass against the new owners, International Paper. The suit was also changed to a "class-action" involving all Perdido Bay waterfront owners. Administrative issues of DEP enforcement of rules which had been raised in the previous complaints, were no longer a part of the lawsuit.
In the last part of August 2002, IP hired the high-powered law firm of Jones Day to represent them. On February 3, 2003, the fourth (and last so far) complaint was filed. This complaint added Thornton Garth, an Alabama resident, as another class representative and added a new grievance to the lawsuit - private nuisance to riparian property owners.
A settlement hearing was held in February 2003 with no settlement being reached. After the settlement hearing, International Paper hired the local law firm of Moore, Hill & Westmoreland. Since that time, IP's attorneys have sent a list of Interrogatories (questions) for Ester's attorneys to answer. Ester's attorneys answered them. And so it goes. No date has been set for trial. This is the responsibility of Ester's attorneys to set a trial date. A public meeting has been set for potential class members on Thursday July 24, 2003 at the PJC West Campus in the McMillan Room at 7:00 PM. I have been excluded from the meeting since I am an Intervener in the case. And so it goes.
This Is Crazy
Th news media amaze me. Ester Johnson lawsuit has been going on for three and a half years. Motions are made, orders are given, settlement talks produce no progress, yet none of this is ever reported. Then all of a sudden an article appears. Someone may have issued a press release. However, the media does not publish every press release. They never have published any of our press releases. We stopped putting out press releases.
Sunday, July 20th's article in the Pensacola News Journal about Bayou Marcus Sewage Treatment plant polluting Perdido Bay was another crazy article. It was very difficult to follow. After reading the article three times, I realized the alleged pollution from the sewage treatment plant happened once - after Hurricane Isidore last year. Apparently Dr Livingston's sampling crew were in Perdido Bay after Hurricane Isidore when then smelled (and tasted?) chlorine in the vicinity of Bayou Marcus Wastewater Treatment Plant. Livingston's crew deduced there had been a spill from Bayou Marcus. Once. Also apparently Dr. Livingston has found high concentrations of chlorine in the sediments of Perdido Bay recently and deduced that this chlorine comes from Bayou Marcus. There is a problem with this. Bayou Marcus does not use chlorine disinfection in the plant. They use UV disinfection. So the chlorine could not come from Bayou Marcus and Bayou Marcus can not be a new source of pollution in the Upper bay. The facts just don't support it.
Bayou Marcus is a very small discharger compared to IP discharges. Compare the allowable limits.
Bayou Marcus Wastewater Plant
IP Biological Oxygen Demand
4,500 pounds/day Total Suspended Solids
8,000 pounds/day Total Nitrogen
2,200 pounds/day Total Phosphorus
No, IP is the major discharger in Upper Perdido Bay which is what Livingston had said in his August 2000 report on Perdido Bay.
Recently it was reported that the engineers looking into moving the Wastewater Treatment Plant in downtown Pensacola had recommended that the plant be moved to a location near Gulf Power and the effluent discharged to wetlands. According to ECUA officials, this report is preliminary and has not been released. The committee looking into the relocation will not vote on the recommendations until the report is formally released which may not be until September. So we can't really say how this will affect us on Perdido Bay until some formal action is taken.