Friends of Perdido Bay

10738 Lillian Highway

Pensacola, FL 32506


Tidings The Newsletter of the Friends of Perdido Bay

May 2006 Volume 19 Number 2 Jackie Lane -Editor

Administrative hearing to begin May 31, 2006 - Maybe

The administrative hearing on Florida DEP's intent to issue a new NDPES permit for International Paper to operate their wastewater treatment system and their mill is set to begin on May 31, 2006 in Pensacola at 9:00 AM CDT. The hearing is being held in the U.S. Courthouse, 1 North Palafox Street on the 5th Floor in the Grand Jury Room. The U.S. Courthouse is located on the northwest corner of Palafox and Garden streets where the old San Carlos Hotel used to be. The hearing will go through that week and then begin again on June 26th and extend through the end of that week. Everyone is invited to attend. In the first week, IP and DEP will present their evidence to show that "reasonable assurances" have been provided to assure DEP (and EPA) that water quality standards will not be violated in Perdido Bay. In the second week, Friends of Perdido Bay and our side will show that the "reasonable assurances" which IP and DEP are going to provide are not really "reasonable assurances" at all. Matter of fact, IP and DEP admit that they can not meet certain standards in the creek or the wetland area. We have witnesses lined up who will testify that Perdido Bay is one of the most polluted bays in Florida - a classic case of organic pollution. The paper mill has been operating on a Federal permit issued to St. Regis (two owners ago) in 1983. The permit supposedly expired in 1994.

One thing that we have learned about legal cases is that the situation can change very rapidly at the last moment. So between the time this newsletter gets to you and the beginning of the hearing, something may have changed. So, check our website (See above) for the latest news about the hearing. This is the only way we can notify our members quickly.

Changing the Rules

Because DEP has failed to control the levels of pollution entering so many water bodies in the state of Florida, Florida has ended up with waters which do not meet federal or state standards. Perdido Bay is a very good example of a bay which has become terribly polluted because the huge wastes from the paper mill have been allowed to degrade the water. One type of pollution which comes from paper mills is "organic pollution". Paper mill waste contains large amounts of very tiny wood fibers and chemicals which use up a lot of oxygen, and these wastes require a long time to degrade. We have calculated that the wastes from the paper mill are equivalent to sewage from over 300,000 people. Clearly, a tiny bay like Perdido Bay can not handle this load. The result of this large amount of oxygen consuming material is low dissolved oxygen especially in the lower waters and on the bottom of Perdido Bay. So right now, Perdido Bay does not meet the state or federal standards for dissolved oxygen in the deeper waters.

Alabama has gotten around this problem by ignoring dissolved oxygen levels in waters deeper than 6 feet. When Alabama says that Perdido Bay meets their state standard for dissolved oxygen, they mean only in the first six feet of water. Well, Florida is at a real disadvantage here. Florida still has oxygen standards all the way to the bottom. At least for now. Florida and those regulators who are supposed to protect our water bodies are trying to change the rule for dissolved oxygen. Florida is trying to change their dissolved oxygen standard and recognize an "alternative dissolved oxygen" level. Florida is trying to say "it is entirely natural to have low dissolved oxygen levels in deeper waters" The key word is "natural". What is "natural"? This is going to be a fight.

Back in the mid-nineties, the paper mill then owned by Champion did a series of studies to try to get "alternative dissolved oxygen levels" for Eleven Mile Creek (the creek into which their effluent travels 10-miles to Perdido Bay). Since the paper mill began dumping in Eleven Mile Creek, it has never met the state standard of 5 parts per million even at the surface. The dissolved oxygen level was 2 parts per million at the surface the last time I measured it at the bridge at 297A. So, the paper mill scientists went out and picked a very small, low flow creek - Soldier Creek, Alabama and found low oxygen levels in Soldier Creek Because paper mill scientists found low dissolved oxygen in another creek (totally different from Eleven Mile), they claimed low dissolved oxygen levels were "natural". Hence the low dissolved oxygen levels in Eleven Mile Creek are "natural". Well, hopefully you get the picture. Science can always be twisted to fit the agenda; something I would never have known 20 years ago.

Friends of Perdido Bay will work with other environmental groups across the state to try and stop this twisting of science so that a serious problem in Florida water bodies can be ignored.

Blackwater Development on Hold

A year and a half ago, the residents of Perdido Bay were abuzz with news that a huge development (1,600 + houses) was going in along the Blackwater River in Alabama. The general concept for the development was approved by Baldwin County. At that time, we contacted the Baldwin County Planning and Zoning to find out more details about the project. The general concept sounded fairly environmentally friendly, although the area which the developers are trying to develop has a lot of wetlands. The developers were going to leave a lot of open space and were not going to fill much wetlands. Before anything can be built however, detailed plans have to be approved. According to Baldwin County Planning and Zoning Department, they have not received any specific plans for Phase I of the development. But individuals who have been watching this development tell us that the developers (AIG Baker) are still trying to find a place for their wastewater treatment plant and sewage disposal. According to our source, the developers are seeking a permit from ADEM to build a wastewater treatment plant 31/2 miles North of U.S. Hwy.98 on County Road 91. The effluent would be disposed of in a small creek called Narrow-Gap Creek. The original concept called for NO surface water discharge of the treated wastewater. According to our source, another troubling detail which we didn't hear about is the plan for 190 spaces for large (over 50') boats. That is a lot of big boats. As with many developments, the devil is in the details. General concepts sound great; what is actually built may be very different, especially if you have a compliant county government. This development because of its size should be watched very carefully.

Thirteen Miles along Perdido River is Protected

International Paper as part of their land divestiture program has either sold or given easements to the 13-miles of shore along the Perdido River for conservation. We really applaud IP's decision to sell this land for conservation. If you have never been up the Perdido River, you should go - but don't get lost. The river scenery is gorgeous. It is wild, with hardly any development. About ten years ago, Friends of Perdido Bay tried to get the Perdido River on the national Wild and Scenic Rivers list for protection. Maintaining the Perdido River in its wild state is a real asset for this area and for the future water quality of Perdido Bay.

The Class Action Lawsuit

This lawsuit which was filed early in 2000 is bubbling and generating a lot of paper. At first, the lawsuit only had Ester Johnson as a plaintiff and me as an "Intervenor". Very little legal action occurred the first couple of years - a deposition or two. At one point, it looked like the lawsuit would be dismissed by the Courts because no action had taken place for a year. There is a rule which says that a case will be automatically dismissed with a judgement against the plaintiffs (us) if there has been no activity in the case for one year. At the last moment, International Paper (the Defendant) and I, in separate filings, were able to keep the suit alive. As I look back, I am not sure it was the right thing to do, but I didn't think it was right to lose by default. Today the lawsuit has turned into a "class action" with various people around the bay being "class representatives". There have been several studies paid for by the plaintiffs' attorneys and rebuttals of the studies by IP. Both sides have big powerful law firms.

In a recent hearing on April 20th, plaintiffs' (that is us) attorneys announced that the class is seeking "non-economic" damages for loss of use and enjoyment of their properties. This means that plaintiffs' attorneys are no longer claiming diminution in property values because of pollution of Perdido Bay but rather damages for loss of use. Plaintiffs' economic expert , Dr. James Nicholas, estimated that if a jury found that plaintiffs suffered a 100% loss of use over the entire 10 year period from 1996 to 2006, the amount would be $575.52 per front foot of property or $84,554,464 for the entire bay. We will see what happens.

A Coverup by Our Government? Yes, Ma'am

Back in early1980's just as dioxin was being associated with bleached white paper production, the mill in Cantonment Florida was being converted from making brown paper bags to making 100% bleached paper. Champion Paper Company sank million of dollars in a mill which had deteriorated badly. Champion expanded the wastewater treatment system and installed a new (at that time) technology, oxygen delignification, to reduce the amount of chlorine used during bleaching. The rebuilding of a deteriorating mill and the promise of continuation of jobs and a paper mill economy was, I am sure, greeted with enthusiasm by the local chamber of commerce. But converting a mill which produced only 200 tons per day of bleached pulp to one which produced 1300 tons per day of bleached pulp definitely had bad effects. Dioxin and chloroform production went way up. Remember the first clam kill in the fall of 1986? The studies done on dioxin in fish in 1989 showed dioxin levels above (some cases way above) the recommended safe eating level at that time (25 parts per trillion levels). One of these fish was a mullet caught down by Soldier Creek. A dioxin level of 15 parts per trillion was measured in the bottom sediments by Tarkiln Point in 1995 by the Fish and Wildlife Service.

Repeatedly we kept asking Champion and DEP "Is it safe to swim?". There was some squirming but the answer from our governmental agencies was "Yes".

In November 1995, Champion converted the mill to 100%, chlorine dioxide bleaching to eliminate the formation of dioxin, so they said. We were not privy at that time to information allowing us to know what they were doing. But, at the time I was doing studies in the bay growing scum algae on glass plates. All the sudden, the scum algae would not grow anymore. Something had happened. Something was wrong. I did a library search on chlorine dioxide and found that chlorine dioxide was generated from sodium chlorate. Chlorate was a potent herbicide, used to kill woody plants. At the time that the scum algae would not grow, the bay was pretty nice. Grass beds began to flourish. Everybody said the paper mill has "cleaned up". The grass bed communities began to reappear. Red fish started appearing around our beach. The only problem was, the paper mill had not reduced their loading of organic material to the bay, at least not in their monthly reports to DEP.

There were other signs that things were not right. The grass beds were unbelievably vigorous. But the normally green fronds of the grass appeared red. Across the bay, the lush Grassy Point grass beds were also "redish". Something was not right. But government scientists started grass bed transplanting. The EPA scientists conducted grass bed studies, and nutrient studies, and more studies. And they published these studies in well-known journals. Dr. Livingston, the paper mill scientific expert, conducted studies, and wrote books. None of these scientists ever mentioned chlorate.

Realizing that there was something wrong, I was able to locate a laboratory to analyze water for chlorate and chlorine dioxide at different places in Eleven Mile Creek. Chlorate was less the further down the stream but it appeared to be diluted and not degraded. In other words, chlorate can persist even after being in a fast flowing stream for several days. In preparing for the up-coming hearing, I have gotten several scientific papers from foreign journals. Studies done in Sweden show the herbicidal effects of chlorate on marine ecosystems. At concentrations, 100 times less than I found in Eleven Mile Creek, chlorate kills phytoplankton (the floating one-celled plants). Brown algae is extremely sensitive to chlorate.

What is apparent is that the scientific community knew about the deleterious effects of bleaching with chlorine dioxide before 1995. The U.S. regulatory agencies and their scientists also should have known about chlorine dioxide and chlorate. All the studies that were published on Perdido Bay by these scientists, never mention chlorate or its effect on the little one celled algae. A Cover Up? You bet. But maybe they figure it is better than dioxin.