Friends of Perdido Bay
10738 Lillian Highway
Pensacola, FL 32506
Tidings The Newsletter of the Friends of Perdido Bay
June 2007 Volume 20 Number 3 Jackie Lane -Editor
WE WON! (At least for now)
In mid-May, the administrative law judge who presided over our administrative hearing on International Paper’s plan to go to a wetland discharge, ruled that the plan did not comply with several aspects of Florida law. He recommended that the proposed permit allowing the wetland discharge be denied. While we were pleased with the ruling, there were some aspects of the recommended order that were not too favorable. To begin with, the judge found that IP’s evidence showing that paper mill effluent would not cause violations in Perdido Bay using the new treatment system was sufficient. The judge used evidence from modeling by Tom Gallagher to show that IP’s BOD was playing a very small part in depressing the dissolved oxygen in Perdido Bay. Then, there were the Livingston studies (18 years total) which showed that low dissolved oxygen was caused by layering of freshwater on top and salt water on the bottom. Livingston considered the oxygen consuming properties of the paper mill effluent negligible. The testimony of the local DEP biologists who had worked on Perdido Bay for 20 years or more, was not given much weight. A DEP biologist testified that of all the bays in North Florida, Perdido Bay was the most polluted. Nearly all of the pollution, at least in the upper bay, came from the paper mill (Dr. Livingston also agreed with this; see article below). The judge found that the testimony by several citizens who testified in our behalf about the scum, foam, algae and nuisance was credible but the Florida law that prohibits nuisance was ignored by the judge.
What the judge found most compelling, and his reasons given for denying the permit were: a) that the salts in IP’s effluent were most likely going to harm the freshwater life in the wetlands: b) there was no adequate showing that diverting 70% of the effluent through Tee and Wicker Lakes was not going to significantly harm these lakes, and: c) that IP’s evidence showing that they were not going to harm the Perdido River was not adequate.
The case has left the Division of Administrative Hearings and is now at the Department of Environmental Protection. The truly decisive ruling, called the Final Order, is given by the Secretary of the DEP. In most cases (not all), the Secretary of DEP generally adopts the Recommended Order coming from the Judge at the Division of Administrative Hearings. All parties are allowed to file Exceptions to the Recommended Order and then Responses to the other parties’ Exceptions. This is what we have been doing these past several weeks. The DEP usually has to make rulings on the Exceptions that the parties submit.
IP’s Exceptions ask that DEP overturn the Administrative Judge’s ruling to deny the permit. No surprises here. DEP’s own attorneys are asking for a new hearing. I guess the theory is, “If you don’t like the old ruling, try again.” It is just taxpayer’s money. Our exceptions asked that the recommended order of the Judge be upheld. Florida law pretty much protects the rulings of the Administrative Law Judge (ALJ). These rulings must be upheld unless there is not competent substantial evidence given to support the Judges decision. In our responses, we demonstrated that the evidence in the record supported the judges decision.
BUT NOW THAT THE DECISION IS AT DEP, POLITICS PLAYS A MUCH BIGGER ROLE. The fact that Perdido Bay has been known to be one of the most polluted bays in Florida for 60 years, and nothing has really been done to correct the problem is due to politics. So we must try and balance the influence from the opposing side -United Industries of Florida, Chambers of Commerce, agricultural interests, chemical and chemical manufactures trade groups. We must let our elected officials know that the “people” support the denial of the permit. This is where you come into the picture. We have a list of the local Florida politicians and their addresses listed below. Write to every one of them. If you live in Alabama, write your local politicians as well. Tell them, we want them to support the Judge’s decision to deny the permit for IP.
Florida Elected Officials
Gov. Charlie Crist Lt. Gov. Jeff Kottkamp Senator Durell Peaden
The Capitol The Capitol 306 Senate Office Building
Tallahassee, FL 32399-001 Tallahassee, FL 32399-0001 404 S. Monroe St.
E-mail: email@example.com firstname.lastname@example.org Tallahassee, FL 32399-1100
Senator Don Gaetz Rep. Greg Evers Rep. Dave Murzin
Senate Office Building 1102 House Office Bldg. 308 House Office Bldg.
Room 320 402 S. Monroe St. 402 S. Monroe St.
404 S. Monroe St. Tallahassee, FL 32399-1300 Tallahassee, FL 32399-1300
Tallahassee, FL 32399-1100 email@example.com dave.murzin@
E-mail: firstname.lastname@example.org myfloridahouse.gov
Rep. Clay Ford Rep Ray Sansom
1101 House Office Bldg. 418 House Office Bldg.
402 S. Monroe St. 402 S. Monroe St.
Tallahassee, FL 32399-1300 Tallahassee, FL 32399-1300
E-Mail: email@example.com firstname.lastname@example.org
Tell these elected officials that IP’s plan to go to Perdido Bay via an overland flow was not going to clean up Perdido Bay and ask them to support the Judge’s decision to deny the permit to IP to build the wetlands.
The Secretary of DEP has 90 days from mid-May to issue a Final Order. He can issue it sooner. So it is important that everyone send in their comments to the elected officials soon. We got a boost from the Pensacola News Journal who agreed with the Judges ruling. Pensacola News Journal said: “DEP should follow the judge’s recommendation, deny the permit, and require IP to come back with a better plan.” We agree, and you can help.
Was Perdido Bay a test site?
The eleven days of hearings produced some very interesting testimony. Some of the most convoluted and conflicting testimony came from IP’s biological consultant, Dr. Robert Livingston, who retired from Florida State several years ago. At times, Dr. Livingston’s testimony was very helpful to our side. At other times his testimony was damaging. As we read and re-read the testimony from the trial, all sorts of interesting points pop up. One was long testimony by Dr. Livingston about why he chose Perdido Bay to study. Here is his testimony.
“Perdido is just a very simple system where you have, of instance, for many years we have had one major source of nutrients that were anthropogenic to the bay and the upper bay, and that was the pulp mill. So that makes it very simple. We have one source.
We have a very narrow, small system. We can run the entire system in a tidal period, which is very important in synoptic sampling. So it makes it relatively simple to study. And to understand how it works is more complicated, of course. But it’s a lot simpler than on a lot of these other systems that we’re talking about. So the Perdido system fits into the galaxy of systems as a relatively simple system with a relatively low level of development in terms of people. It isn’t like new York City; it isn’t like Chesapeake; it isn’t like Seattle. You know, it’s a relatively simple system. It was, in many ways, natural in terms of the, for instance, the Perdido River. The loading there hasn’t changed much accept when the drought occurred, we had very low loading. But it hasn’t changed much because it (the river) hasdn’t been polluted. The water is still in good shape based on our 18 years of work.”
Can there be much doubt? Why, after Dr. Livingston gave this testimony, did he then say that he considered the pulp mill to have little impact on the bay? One can only speculate. Was Perdido Bay chosen as a site to test the environmental effects of conversion from chlorine bleaching to chlorine dioxide? If it was, Perdido Bay residents should certainly be compensated for the years of damage we have suffered due to the “experiment”. First, we had huge amounts of algae in the mid and late ‘90's and then when IP took over the mill in 2000, grass beds, algae, and most other living times (except for an occasional crab and fish) disappeared. It is time to stop experimenting. It is time for DEP to do its job.
Early this spring, in an article in the Pensacola News Journal, IP announced that they were going to begin their conversion to unbleached brown cardboard in April and May. Brown paper is more efficient to make because they get more product per ton of trees processed and they don’t have the bleaching process and chemicals to contend with. However, IP plans to nearly double their production from 1,600 tons of pulp to 2,500 tons of pulp. IP was going to shut down for three weeks in May while they were undergoing the conversion process. While IP was shut down we were going to take samples in Eleven mile Creek. In June, IP reduced their flow into the creek (the creek is low compared to its old flow), but the water is still a dark brown color indicating that they are still producing. Maybe we never will see Eleven mile Creek crystal clear again like we saw it in 1986 when they shut down for the last conversion. But less flow means less total loading into Perdido Bay. There is not as much foam and scum as in past months. The bacteria counts which we take weekly have been a lot lower. But the bay is still not very clear or inviting for swimming at least on the Florida side. Too bad. We had hoped to swim a little this summer.
The Class Action Lawsuit
Every month we keep hoping that Judge Jones will certify the law suit as a class so that the suit can move forward. So far nothing. The lawsuit has been stalled since October 2006 while the judge decides whether to certify the class or not. As it stands now, there is only one Count before the civil court- negligence. It seems hard to imagine after all the damage all these years, there is only one complaint - no trespass, no chemical trespass, no loss of use and enjoyment, no failure to warn about spills, etc.
Earth Day 2007
Here we are at Earth Day in April passing out our literature and explaining our problems to people who stop by to chat. There were very few grass roots environmental groups at Earth Day this year - mostly government and commercial groups. Earth Day is a good way to reach out to the community and have a presence for a very important cause.