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International Paper Case Victory Proves Hollow

In August of 2007 the Florida Department of Environmental Protection (DEP) issued a final order denying International Paper’s applications to discharge 23.8 million gallons of industrial wastewater effluent from its Cantonment paper mill into waters of the state. I had the honor of representing James Lane and Friends of Perdido Bay in the administrative hearing concerning DEP’s proposal to issue the permit and other regulatory authorizations that International Paper (IP) sought. After eleven days of testimony, the Administrative Law Judge (ALJ) recommended denial of the permit application, and DEP issued a press release with a nice color picture of Secretary Mike Sole, looking all handsome and officious, and the statement that, while the Secretary “does not agree with all the Judge’s rulings,” he was nonetheless denying the permits.

Before my co-counsel and I even had time to toast our “victory” IP appealed the order, and almost simultaneously submitted a new permit application. Well, virtually the same permit application actually.

A stay pending appeal was immediately granted by DEP, without addressing any of the factors that would typically be considered in granting or denying a stay, such as IP’s likelihood of success on the merits, or whether the stay was in the public interest. Thanks to the stay, IP’s discharge into 11 Mile Creek in violation of water quality standards continues unabated, as it has for decades.

Even though my side supposedly won, we filed a cross appeal challenging a portion of the state law that allows DEP to issue or renew an operating permit even when, as in the IP case, the discharge will not comply with applicable statutes and rules, so long as “granting the operation permit will be in the public interest.” You see, during the hearing I asked William Evans, Domestic Wastewater Permitting Supervisor with the Department’s Northwest District Office, how the determination was made that IP’s noncompliant discharge would be in the public interest. His answer was that DEP had basically considered “International Paper’s interest as public interest in our test.” I am not making that up.

IP has had literally decades to come into compliance with water quality standards. And DEP, rather than enforcing our environmental laws and fining IP for its pollution, instead grants more permits and waivers and variances with a few more years and then a few more years to come into compliance. Pollution control technology costs money; cutting production to stay within discharge limits costs money. Why cut into profits when you can just get your consent order “administratively continued” for almost 20 years?

So, on behalf of my clients I have challenged as vague the state law that leaves it to DEP’s apparently unbridled discretion to determine when discharges that will pollute our state waters are “in the public interest.” I have done that in hope that the law will eventually amended, so that factors such as impacts on fish and wildlife and recreational values will be explicitly part of the state law that guides permit review, rather than just given lip service in DEP’s administrative rules. If that provision is stricken as vague, DEP just might have to start enforcing our state’s environmental regulations instead of issuing consent agreements that allow IP to keep operating despite the fact that its wastewater discharge does not and will not comply with water quality standards.

So here is the kicker. FDEP moved to dismiss my cross-appeal based upon my clients supposedly being the prevailing party. “You cannot appeal a case that you won” FDEP’s attorney, David Thulman has argued.

But what exactly have my clients won? IP, which just reported preliminary first-quarter 2008 net earnings of $133 million, continues to cause pollution by discharging its paper mill effluent into 11 Mile Creek, a water body that is too small to assimilate the pollution. The pollution continues to flow into Perdido Bay, which would be a far healthier, more productive estuary if DEP didn’t allow it to be IP’s sewer. And DEP is already proposing to approve of IP’s “new” permit application, which at first blush is strikingly similar to the proposal it reluctantly denied last August. This leaves my supposedly victorious clients with two options. Option number one, hope the same proposal will work, a ten mile pipeline to wetlands bordering Perdido Bay, even though they already defeated that proposal once when the Administrative Law Judge did not believe the wetlands would not be harmed by IP’s waste. Option number two, lawyer up and hire experts and spend thousands of dollars to challenge the “new” permit all over again-whether the appeal in the First District Court of Appeals is successful or not. Even though we are the so called “prevailing party” in the previous permit challenge, for their efforts my clients appear to be no closer to their ultimate goal of clean water in Perdido Bay.

Last May while we were in the middle of the hearing regarding IP’s permit, IP issued a press release which announced it was closing its mill in Terre Haute, IN. According to IP, "The mill's relatively small size and high manufacturing costs hindered its long-term competitiveness, and ultimately have led to our decision to close the mill." Obviously, when it is in IP’s economic interest to close a mill, it does so. If IP can not operate the Cantonment mill profitably and in compliance with environmental regulations, that mill should be closed too.


 

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