Friends of Perdido Bay
10738 Lillian Highway
Pensacola, FL 32506
Tidings The Newsletter of the Friends of Perdido Bay
September 2002 Volume 15 Number 4 Jackie Lane -Editor
Next General Meeting - October 17, 2002
Our next general membership meeting will be Thursday October 17, 2002 at the Lillian Community Club in Lillian Alabama. The meeting will begin at 7:00 PM. We will be discussing health issues as relates to Perdido Bay. Plan to attend.
No New News
In every newsletter we try to bring everyone up to date on any new events in the International Paper "clean up plan". Unfortunately, we have heard no new news since the last newsletter in July. The clean up is a partnership between IP and Escambia County Utilities Authority (ECUA). A cloak of secrecy has dropped and no new details have formally emerged since the public announcement 2 ½ years ago. The general plan involves the following: ECUA will build a new 5 million gallon per day wastewater treatment plant on IP property in Cantonment; IP plans to make improvements to their wastewater treatment system; and the effluent from the two will be combined and piped to a wetland treatment area on 2000 acres nearer Perdido Bay. The BIG question is "Will it work?". We will not know the answer until the plans are released and analyzed by unbiased experts.
Another important question is "who is going to pay for what?" IP will pay for their improvements. ECUA will pay for their new treatment plant. Money for construction of the pipeline and wetland treatment will come from the state's revolving loan fund. This fund is available to public utilities and must be repaid by ECUA ratepayers. IP will pay ECUA for use of the pipeline. The question is what happens if IP closes the mill before the pipeline is entirely paid off? Will ECUA ratepayers be stuck with paying back the state for the whole project? According to the local newspaper, the ECUA board wants more assurance that the public will not be stuck with an extremely large debt. This point is apparently what has been holding up a signed agreement. However, privately some of us are not expecting any progress until after the November elections. Since we all know that politics has a big role to play in the environment, any big moves before an election by any party are too risky.
A New Spin on the Clean Water Act
Some of our readers may be familiar with the term Total Maximum Daily Load (TMDL). This term was first used in the 303 (d) section of the Clean Water Act which says that states are supposed to identify waters within their boundaries for which technology-based effluent limitations are not stringent enough for those waters to meet water quality standards. States are supposed to establish levels of pollutants necessary for attaining the applicable water quality standard. All dischargers would need to reduce the amount of pollutants discharged so that the water quality standard could be attained. This establishment of levels of pollution necessary to meet water quality standards is called Total Maximum Daily Load.
Since passage of the Clean Water Act in 1972, states have been requiring industries to meet "technology-based effluent limitations". These are limitations based on the best available technology in that industry. These limitations do not take into account the environment into which the polluter is discharging or the size of the polluter. They are based only on the available technology. We have written in this newsletter that such standards actually slow down progress. What industry is going to raise the standards so that all other similar industries will have to install those standards? This requirement of "best available" technology has also led to businesses buying and hiding pollution technologies which would be "cutting edge". Further, the government does not update its best available technology requirements very often. Prior to the passage of the new rules for the paper industry in late 1990's, the technology-based limitations were updated last in 1978.
While the EPA and the states have been enforcing technology based effluent limitations on the industries, the requirement for establishing TMDL's in water bodies not meeting water quality standards has been ignored. The EPA publishes a list of water bodies not meeting water quality standards which is called the 303 (d) list, but TMDL's have not been done on 303 (d) water bodies. The 303 (d) list is often called the list of "impaired" waters.
To force the EPA and the states to develop TMDLs, several of the big environmental groups (Sierra Club, National Wildlife Federation) filed lawsuits. In 1999, a Consent Degree ordered Florida or EPA to develop TMDLs for water bodies in Florida based on the EPA's 1998 303 (d) list. Perdido Bay is scheduled to have a TMDL done in 2006 and was given high priority.
In the meantime, Florida legislature decided to pass a law which allowed the Florida DEP to draft a rule to identify water bodies which were impaired and to perform TMDLs on these water bodies. Supposedly the rule has to follow the requirements of the Clean Water Act. TMDLs are supposed to be done on those waters for which technology-based limitations are not stringent enough to maintain water quality standards. Sounds simple. It wasn't. To help draft a rule, DEP appointed a technical advisory committee (TAC). For one year the TAC went around the state (at tax payer's expense) holding public meetings and taking comment. After the TAC had partially drafted a rule and stopped meeting, DEP personnel in charge of drafting the rule, changed the rule substantially. According to the rule that was finally passed by the DEP, water bodies were impaired only if they meet the special terms of "impairment" that the rule specified. Data that was older than 7.5 years could not be used for the determination. Data taken after rainfall events could not be considered. Measures of impairment were to be based only on plants (not animals) from shallow (not deep) parts of lakes. A beach had to be closed 20 times per year for bacterial contamination (and red tide was not counted) before it could be called "impaired". So what the Clean Water Act had specified as "not meeting water quality standards" was reinterpreted by Florida's new TMDL rule to mean "not meeting water quality standards if these new measurement rules are used". Needless to say, the new rule will remove hundreds of water bodies not meeting water quality standards from being classified as "impaired".
But the most amazing part of Florida's rule is the loophole which exempts water bodies not meeting water quality standards where technology based limitations are used if DEP thinks that standards will be met "in the future". The Clean Water Act says that water bodies not meeting water quality standards because technology-based effluent limitations are not stringent enough shall be identified as impaired. Florida's TMDL rule is just the opposite of what the Clean Water Act says. In May, a Florida judge ruled that the TMDL rule was valid. All the big polluters intervened on the side of DEP supporting the rule as written by DEP with help of the big polluters. The judgement has now been appealed. Justice is elusive, or at best, something to expect "in the future", especially where big money is on the opposing side.
Ester's Lawsuit is Getting Bigger
In March, 2000, Steve Medina filed a lawsuit for Ester Johnson against Champion International seeking fines and enforcement for water quality violations in Eleven Mile Creek. The lawsuit also sought injunctive relief and damages for negligence, negligence per se, and nuisance. For over two years, the judge abated the counts until Steve Medina filed a Third Amended Complaint An abated count means that the judge put the issues on "hold", but they were not dismissed. The issues were not dismissed because they were never tried, or in court language "adjudicated".
In July 2002, Steve Medina, who is now associated with the Levin Law firm, filed a third amended complaint. The Complaint which correctly has substituted International Paper for Champion International as the Defendant, is now a "class action" lawsuit. Included in the class are all riparian property owners on Perdido Bay in Florida and Alabama. Excluded from the class are the defendant and any interveners (I am an intervener in this lawsuit and therefore excluded). The third amended complaint has three counts for which Ester's attorneys are seeking damages - negligence, negligence per se, and trespass. So far, the news media has not publicized the change in Ester's lawsuit.
In response to the change in the lawsuit, IP has retained the services of four attorneys from the law firm of Jones, Day, Reavis & Pogue in Atlanta, Georgia. The names of the attorneys now listed on Ester's side are Mike Papantonio, and Steve Medina from the Levin firm and Lawrence Keefe, an attorney from Ft. Walton Beach, FL. It appears from the names of the law firms that the fight is escalating.
We hope that more comes from this lawsuit than came from the lawsuit in which my husband, myself and Bob Donnenwirth were class representatives. We had hoped that the previous lawsuit would bring an end to the pollution of Perdido Bay. Instead, that lawsuit brought a little money to members of the class and no reduction of pollution to our waters. As we found out from the previous lawsuit, the attorneys run things and it is very difficult for class representatives to influence the direction the lawsuit takes. Hopefully the results of this new lawsuit will turn out better for our bay.
International Paper reported earnings of $169 million in the second quarter. As IP's chairman stated, the second quarter profit was due mainly to their cost reduction efforts. We think the poor quality of the bay water this summer is because, IP has reduced treatment to save money. While reporting a profit, IP's prognoses for the future is decidedly negative. The report says that volume is flat and prices are down. Sales were down 6% from the previous year when IP lost money. So any incentive to spend money on improvements, as is being considered at Pensacola, is very weak. Nevertheless, we still hope that IP decides to make the improvements.