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
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
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.