The following letter, written by Florida environmental attorney Marcy LaHart, is a stunning example of just how slippery this state’s polluters — and alleged regulators — are. After years of fighting International Paper’s illegal discharge, LeHart “won.” But as her letter points out, the victory has proved meaningless.

International Paper Case Victory Proves Hollow

In August of last year 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. Funny but DEP did not issue a press release broadcasting that little tidbit.

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. 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 permit review, not just the interest of the would be polluter. 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 having supposedly won. “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 Judge did not believe the wetlands could assimilate 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.

Marcy LaHart, Esq.
711 Talladega St.
WPB, FL 33405
561-655-9537

At a hearing today (May 5) in Circuit Court Judge Bernard Nachman’s chambers, on the election for the Group 2 At-Large Jacksonville City Council seat, there was a seismic rumbling in the platelets of power upon which the city rests.

One of the state’s top election law experts is now representing Republican Theresa Graham, a candidate who has received little support from local kingmakers — and her own party. Indeed, it almost seemed a foregone conclusion that Graham didn’t stand a chance in the race to replace the ousted Councilmember Jay Jabour. Longtime and well-connected former Councilman Dick Brown is the preferred candidate of power brokers everywhere, and is represented by influential land-use attorney Paul Harden, who is helping him break into a race that once seemed like it would be limited to Jabour’s original opponents.

The City Council had been asked to set an election date for a race restricted to Graham and Bob Harms after Jabour, who beat them both, resigned. Harden
argues the race should be opened, and it seemed the city’s General Counsel’s Office and much Of the City Council agreed. They didn’t want Democrat Harms (whose lawsuit challenging Jabour’s residency led to his resignation) or Republican Graham (whose hyper right wing religious bent would make her unpredictable ally).

But Graham fought back Monday in a big way. She asked to be named a defendant in the Harden lawsuit, as did Harms. Both want the election limited to the two candidates who originally ran against Jabour. In a stunning show of fight, Graham was represented at Monday’s hearing by Tallahassee attorney Mark Herron, the
election law expert and who was part of Al Gore’s team of attorneys during the 2000 election recount.

Nachman made no decision at the hearing, though he did appear to distance himself from any suggestion that he wanted the race limited to just two people. Nachman takes up the first of the various motions May 28.

Circuit Court Judge Frederick Tygart decided he will not hear a lawsuit that questions if the Jacksonville City Council can legally limit the candidates able to run for the vacant Group 2 At-Large City Council seat formerly occupied by Karl “Jay” Jabour. Tygart moved the case to the court of fellow Circuit Court Judge Bernard Nachman on Thursday. Nachman’s the judge who invalidated Jabour’s election to office in the first place (he doesn’t live in the Group 2 district), and who earlier ruled that if Jabour’s election was invalidated, voters should choose a replacement between the other two candidates who originally qualified to run against Jabour. Although some politicos complained about the limitation and the choice of candidates, the course to an August election seemed set. But as the City Council prepared to pass an ordinance scheduling an August 28 election between Theresa Graham (who lost to Jabour in the Republican primary) and Bob Harms (who lost to him in the general election), a third candidate filed a lawsuit against the City Council . Attorney and powerful land use lobbyist Paul Harden, who is representing Atlantic Beach Mayor and former Jacksonville City Council member Dick Brown iin the lawsuit against the City Council, says the race should be open to any candidate who qualifies. Since Jabour resigned before his appeal of Nachman’s removal was finalized by the First District Court of Appeals, Harden said the City Council should treat it like any other resignation and simply schedule an election to fill the vacancy with a qualifying period open to all comers. On May 5, Nachman will hear a motion by Harms’ attorney Neil Henrichsen to add Harms as a defendant in the Brown lawsuit. Henrichsen told Folio Weekly that Theresa Graham may also join the motion.

The FBI investigation of JaxPort contracts and Board Vice Chair Tony Nelson may have deep tentacles.

Several other top Port officials and allies have hired attorneys to represent them in the ongoing probe, including Nelson’s ally Reggie Fullwood (former City Councilmember and writer for the Jacksonville Free Press) who apparently has hired Hank (”You Know You’re In Trouble When…”) Cox, Eric Green (former Delaney Administration Deputy Chief Administrator and current Director of Government and External Affairs for JaxPort) and Ron Baker (Deputy Executive Director and CFO at JaxPort).

The Times-Union, smelling blood, has evidently assigned a team of reporters to cover the story. In recent days, the FBI has raided two of Nelson’s businesses, including First Coast Black Business Investment Corp. along with the offices of several companies doing biz with the Port. Nelson took a leave of absence from the board Monday.

“A quarter pound of that special loaf, sliced thin”

This Publix training video, recently sent to Folio Weekly, showcases that inimitable, blow-your-brains out style of industrial film. Eat your heart out, “Saw II”!

Put on your eatin’ pants people (mine are a comfy yet smart rayon with an elastic waistband, obviously). Tomorrow restaurants throughout Northeast Florida are participating in Dining Out For Life, a nation-wide program that raises funds for local AIDS charities.
The following restaurants will donate a portion of the day’s sales to the Northeast Florida AIDS Network:
Ragland’s (in Five Points)
Matthew’s Restaurant and Matthew’s Market & Catering (in San Marco)
The Tasting Room Wines and Tapas (in St. Augustine)
Plaza III Steakhouse (inside the Hyatt Regency in downtown Jacksonville)
Park Place (not a restaurant, but a great bar in Riverside)
Burrito Gallery (in downtown Jacksonville)
Cool Moose Café (on Park St. in Riverside)
Gypsy Cab Co. (in St. Augustine)
Biscottis (in Avondale)
Zaitoon Mediterranean Grill (in the Intracoastal West area)
Judson’s (in Riverside)
The Brick (in Avondale)

Since 1989 the Northeast Florida AIDS Network has advocated on behalf of those afflicted with HIV/AIDS and their families and has developed programs aimed at AIDS prevention. For more information and to make reservations at the restaurant of your choosing (c’mon, just choose one) visit diningoutforlife.com/Jacksonville

Here, as promised in this week’s Folio Weekly, is the courthouse audit, released by the Council Auditor’s Office. Seventeen pages of chocolatey goodness, plus attachments. Dig in.

*sorry, Ween

Gov. Crist announced this morning that he was reinstating Clay County Commissioner Christy Fitzgerald.

Fitzgerald, the subject of a news story in this week’s Folio Weekly (ironically titled, “It’s All Over Now “), was acquitted last week of the last of a raft of charges stemming from a March 2005 grand jury investigation that found corruption crawling on Clay County like ticks on a basset hound. Or something like that.

Unfortunately — or fortunatley, depending on your political affiliation — Fitzgerald’s high-priced attorney worked his magic in the courtroom, getting many of the charges and key bits of evidence dismissed. Sources inside county government say Fitzgerald is expected to attend today’s County Commission meeting. Crist’s order is below:

STATE OF FLORIDA
EXECUTIVE OFFICE OF THE GOVENOR
EXECUTIVE ORDER NUMBER 08-70

WHEREAS, by Executive Order Number 06-68 Christy Fitzgerald was suspended from her position as County Commissioner for Clay County, Florida effective March 23, 2006 based on an Indictment issued March 23, 2006 charging her with five counts of petit theft and committing official misconduct; and

WHEREAS, on April 14, 2008, a jury acquitted Christy Fitzgerald of the charges underlying her suspension;

NOW THEREFORE, I, CHARLIE CRIST, Governor of Florida, pursuant to Article IV, Section 7(a) of the Florida Constitution and the Laws of the State of Florida, issue this Executive Order:

1. Christy Fitzgerald is reinstated as Clay County Commissioner, effective immediately.

IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of the State of Florida to be affixed at Tallahassee, the Capitol, this _____ day of April, 2008.

___________________________
GOVERNOR

ATTEST:

_____________________
SECRETARY OF STATE

Lobbyist and land use attorney Paul Harden fought hard not to release his client list. But on Friday, he caved. The list, which is available on the City of Jacksonville’s Ethics Office website, follows. It does not, incidentally, include Harden’s recent work on behalf of City Councilmember Art Shad, whom Harden assisted (informally) after Shad punched a constituent in a San Marco park. For more on Harden’s complex relationship with local lawmakers, see Tuesday’s Folio Weekly.

With the promise of a water spigot and the use of a city-owned lot in Neptune Beach, the Beaches Local Food Network plans to be tilling the soil in a new organic community garden by July.

The garden will be located next to Jarboe Park, 301 Florida Blvd. Plans for the garden include 24 private plots, a native plant demonstration garden, a children’s garden, a communal plot with fruit trees, berries and herbs for judicious harvesting by communal garden members and a farmer’s market plot where members will raise produce to sell at the Beaches Farmer Market to raise money for the garden. Rental fees for a plot will be $10 for gardeners who donate three hours monthly to the garden and $20 for other members. The rental fee will cover water, soil and, compost when available. There will also be six plots reserved exclusively for Neputne Beach residents and awarded by lottery.

The Beaches Local Food Network is currently seeking volunteers to help with fundraising, building fencing, a tool shed, paths and garden beds. A community garden meeting is scheduled for 7 p.m. on Tuesday, April 29, at Duncan U. Fletcher High School, 700 Seagate Ave., Neptune Beach. Please contact Gretchen Ferrell at BeachesGreenMarket@yahoo.com to verify meeting time and for more information on the garden.

The Beaches Local Food Network also plans to move its Beaches Green Market to Jarboe Park beginning May 17. This week, Ferrell says the market will include organic and local produce from Down to Earth organic farm, Twinn Bridges, the Arlington Community Garden and Oral Matthews. There will also be handmade aprons and baskets, heirloom tomato and herb plants and orchids from Jaxma Orchid Greenhouse. The Beaches Green Market is held Saturday afternoons from 2-5 p.m. at Twisted Sisters on 1266 Beach Blvd., in the Beaches Plaza shopping center.