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The Buzz 6/28/12

MYERS VS. MAYOR
Pensacola City Councilwoman Sherri Myers is suing Pensacola Mayor Ashton Hayward. The suit is over a May 15 memorandum in which Hayward informed council members that they are not permitted to speak with city staff—communications between council members and city staff, as well as public record requests, would need to go through the mayor’s office.

“The issue is very simple, it has a lot to do with the separation of powers,” Myers said, describing the lawsuit as “not too complicated.” “The charter was very clear about what powers city council has—it is not ambiguous.”

According to the councilwoman’s attorney, Alistair McKenzie, the Complaint for Writ of Quo Warranto was filed June 20. In the lawsuit, McKenzie argues that while the charter forbids council members from directing city staff, it implicitly states that council members may make informational inquiries.

“In a nutshell, this is about the separation of powers,” Myers said a few hours after her suit was filed. “One branch can not interfere with the powers of the other—that’s illegal.”

Mayor Hayward issued a response to the suit the following day: “While I respect Councilwoman Myers, I disagree with her position and I am disappointed in her decision. I believe there are better uses of taxpayer resources and the court’s time.”

Hayward’s May 15 memorandum stated that “to improve efficiency of City operations … all future communications and dealings between the individual City Council members and City employees be done through the Mayor.”

“I will deal with your individual requests and recommendations in a timely fashion and, if necessary, set up a meeting with the appropriate department head or supervisor to discuss them,” Hayward wrote.

City Administrator Bill Reynolds subsequently told the council that their communications with staff could be viewed as politically intimidating: “When you walk into a staff member’s office, immediately it’s a big deal. It can be intimidating to staff, and that’s why this prohibition is in place.”

Myers disagrees. She contends that the city charter allows for communication between council members and staff, and said such communication is necessary.

“If we don’t have the right to information—and information that’s not filtered—I don’t think we can really govern,” Myers said.

The portion of the city charter used by the mayor to justify the directive is Section 4.04 (b) Interference with Administration, which reads: “Except for the purpose of inquiries and investigations made in good faith, the City Council or Council

Members shall deal with the City officers and employees, who are subject to the direction and supervision of the Mayor, solely through the Mayor. Neither the City Council nor Council Members shall give orders to any such officer or employee, either publicly or privately. It is the express intent of this Charter that recommendations for improvement of municipal governmental operations by individual Council Members be made solely to and through the Mayor.”
During the May 24 city council meeting, several council members expressed concern with the memorandum.

“We need information. We get calls from our citizens and we have to be able to defend our decisions,” said Councilwoman Megan Pratt at the meeting, noting that City Attorney Jim Messer had indicated previously that contentions between the board and the mayor might best be settled in court. “Our only ultimate recourse is the courts.”

During that same meeting, Council President Sam Hall requested a “kumbayah” spirit and asked council members to “give it a month.” The council president said he had spoken with Hayward after the memorandum was issued, describing the conversation as “very positive.”

“Again, I’m not going to reveal the particulars of the conversation, but today is a new day,” Hall told the board. “Right now, I have his assurance that it is a new day.”

The councilwoman said that since the memorandum was issued, she has stopped trying to communicate with city staff— “basically, what we have is a gag order on city employees.”

“For example,” Myers said. “I sent a simple email request to Mr. Garza about when two streets were scheduled to be resurfaced. His reply was that he could not talk to me.”

Myers said she had been going through Reynolds since that point, but would rather be getting her information directly from staff.

“For instance, when you’re talking about financial matters, Dick Barker is the expert,” she said. “I should have to call the city administrator for every little thing? I shouldn’t have to call the city administrator or the chief of staff of the mayor to find out when a street is going to be resurfaced.”

CANDYMAN COMES TO TOWN
Majestic Candies Company is coming to town. Just not yet.

“We’re not on schedule for July, unfortunately,” said Majestic’s Don Perrotta on Wednesday.

Hailed by local officials as a company that will invest $6 million and bring over 100 jobs to the area over several years, Majestic was slated to open up shop in July. That start date has been pushed to August.

“Looks like it’s going to be probably the middle of August before we try to test out our equipment and start making some candy,” Perrotta said, adding that the business would be up and running later that month.

Apparently, the H.T. Hackney building on W Government Street—where the business will reside—has required more preparation than expected.

“This old tobacco place, you can’t get it clean enough,” said Perrotta. “It’s just full of cigar and tobacco smoke.”

Once work on the building is complete, the candy company’s digs will feature a production floor, as well as a glassed-in viewing hallway. The hallway will allow visitors to watch the candies being made.

Majestic Candies focuses on pralines. Perrotta said a third of the business is pralines, but they soon plan to branch out into chocolates.

“They’re almost as addictive as the pralines,” he said.

Currently, Majestic employs between seven and 10 people. The company will begin hiring more people—“slowly”—in August. Perrotta said he’s looking to have 30 employees by the end of the year, with that number increased to 100 by 2014.

Majestic Candies has its roots in a “small shop” in Spanish Fort, Ala. This venture, however, is a new endeavor—and much bigger, as the Spanish Fort shop only produced between 1,200 and 1,500 pieces of candy each week.

“This is a one of a kind, first-time operation,” Perrotta said, noting that the Pensacola facility will be able to produce 6,000 pieces of candy each hour. “That’s quite a big difference.”

The Coal Ash Stash Debate
Two years ago, the U.S. Environmental Protection Agency proposed federal standards for coal ash, the byproduct of burning coal. That proposal never went anywhere.

On June 21—two years to the day since the EPA proposals—the U.S. House of Representatives voted to instruct the Transportation Conference Committee to keep language in the highway bill currently being considered that would block the EPA from designating coal ash as hazardous waste. The language—in the form of an amendment by West Virginia Republican Rep. David McKinley—is included in the House’s Surface and Transportation Extension Act of 2012.

“This is definitely a timely topic,” said Emily Enderle, from Earthjustice, during a June 21 conference call addressing coal ash. “We generate enough coal ash every year to fill boxcars from the North Pole to the South Pole.”

According to the EPA, coal ash contains “a broad range of metals, including arsenic, selenium and cadmium.” The agency estimates that more than 136 million tons of coal ash—or, coal combustion residuals—are produced annually.
Power companies, which burn coal to produce electricity, store coal ash in ponds or landfills. If “scrubbers” are employed at the facility to scrub emissions, the ash is turned into a synthetic form of gypsum—flue gas desulfurized gypsum.
Currently, coal ash is unregulated at the federal level. This worries environmental groups due to the risk of the stored ash—and related metals—leeching into groundwater.

In addition to safeguarding groundwater, environmentalists point to a 2008 accident in Tennessee as a reason to regulate coal ash. In what is the largest coal ash release in U.S. history, a slurry spill at the Tennessee Valley Authority’s Kingston Fossil Plant resulted in more than one billion gallons of coal fly ash slurry being released into local waterways and damaging surrounding land and homes.

Enderle said power companies should be required to enact such measures as lining containment facilities, as well as covering coal ash deposits.

“It’s a technologically easy thing to do,” she said. “No more advance than how we deal with household garbage, really.”

Florida resident Steve Johnson joined environmental advocates on yesterday’s conference call. He recently had coal ash put onto his 30 acres of land as filler. Since then, the man has measured high concentrations of metals associated with the ash.

“I asked the DEP if it’s safe for my 3-year-old to live on this property,” Johnson said during the call. “She said she could not answer that question.”

Locally, Gulf Power’s Crist Plant has installed scrubbers to deal with emissions. The plant produces gypsum as a byproduct.

“That’s great, because it’s not in the air,” noted Clean Water Action’s Angelique Giraud during the June 21 call. “But then coal companies just put it into these ponds.”

Gulf Power Spokesman Jeff Rogers said that the Crist Plant has a pond and landfill to hold fly ash, though the pond is no longer in use. He also reported that the landfill is lined.

A December 2011 report by the Environmental Integrity Project entitled “Risky Business” lists various plants around the country where unsafe levels of certain metals have been found in the groundwater. It lists the Crist Plant as having high levels of arsenic, cadmium, manganese and sulfate.

“Groundwater monitoring data from five sampling events from May 2008 to November 2010 show contamination from a coal ash landfill and gypsum storage areas at the Crist Power Plant in the Florida panhandle,” the report states.

“Maximum Contaminant Levels (MCLs) for arsenic and cadmium were exceeded multiple times in one compliance monitoring well, MWC-4, near the landfill. Arsenic exceedances ranged from 29 to 35 ppb, (3.5 times the MCL), while cadmium was measured at 16 ppb (3.2 times the MCL). Health advisories were exceeded for manganese and sulfate. The worst sulfate concentrations were downgradient of gypsum storage areas.”

Rogers doesn’t put a lot of stock in the report.

“This is not a government group, it’s an environmental group,” he said. “It’s an anti-fossil fuel group.”

The Gulf Power spokesman said that the company was in full compliance with state and federal regulations. He said environmentalists’ concerns regarding the lack of regulations should be directed at lawmakers.

The Southern Company—Gulf Power’s parent company—reports that 30 percent of its coal combustion byproducts are sold for reuse. The company’s scrubber-derived gypsum is used in “a number of beneficial uses, such as in wallboard, cement and agriculture.”

Eathjustice’s Enderle said she would like to see federal regulators address the safety of using coal byproducts in such ways.

“That’s something we’d like the EPA to come out with,” she said.

In its 2010 proposed regulations, the EPA did not aim to address the secondary market for coal byproducts. The “beneficially used CCRs,” or Coal Combustion Residuals are exempt from any hazardous waste regulations.

The U.S. House vote to bar regulation of coal byproducts may be largely symbolic, as the transportation bill it’s attached to is becoming a bleaker prospect by the day. The house bill contains controversial aspects—most notably, the approval of the Keystone XL pipeline—and is not expected to survive the legislative session. House Republicans have indicated that a stalemate is likely, which would most likely mean an extension of current highway funding by June 30.

A majority of the U.S. representatives from Florida favor the coal-ash amendment. While a half dozen Florida Democrats voted against the language, most of the state’s 25 representatives voted for it. Three of the state’s U.S. representatives—Jeff Miller, Connie Mack and Daniel Webster, all Republicans—did not vote on the matter.