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Monday July 28th 2014

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A Soiled Situation

East Hill Residents Receive Notice of Class Action Lawsuit Settlement
By Sarah McCartan

If you live in the centralized portion of the generally health-conscious and progressive East Hill neighborhood, you may have received a notice regarding a class action settlement five years in the making, concerning a potentially toxic plume migrating underneath your property.

The plume dates back to a seeping site. Situated on the Northwest Corner of Fairfield Drive and Interstate 110, approximately one and a half miles west of Bayou Texar, is the ghost of a late fertilizer plant where chemical production took place by ConocoPhillips, Inc. and Agrico Chemical Company between 1889 and 1975.
During operations, what is now referred to as the “Agrico Site” has been cited with causing groundwater contamination through the release of a number of “constituents,” including fluoride, chloride, nitrates and radium 226 and 228.

In 1989, the site was added to the U.S. Environmental Protection Agency’s (EPA) National Priorities list due to the discovery of contaminated groundwater, sludge and soil resulting from facility operations. As of May 1997, sources of contamination related to the former fertilizer manufacturing operations were “cleaned up” under the EPA’s Superfund Program.

In 1999, the selected remediation for the site and monitoring plan was implemented. Currently, the site remains in a long-term natural attenuation monitoring program for groundwater. Phillips 66, a ConocoPhillips spinoff, remains responsible for annual reporting.

“The sampling shows over time they’ve met the cleanup goals and contamination has been reduced,” stated EPA site manager, Scott Miller.

A Moving Target

Now, years after the 1999 inaction of the “clean up” remedy, the plume continues to spread further to the east and southeast moving toward Bayou Texar, where the intent was for it to make its way into Pensacola Bay in a much less concentrated state.

In 2008, a suit was filed by the Pensacola law firm of Aylstock, Witkin, Kreis & Overholtz. Five years later, a circuit judge has given preliminary approval to award a $9.5 million lawsuit settlement that is to be disbursed to current homeowners within the East Hill area. The first batch of notices has been distributed to property owners living within the affected area, notifying them of the settlement and providing the option to partake.

“The chemicals are unwanted and potentially toxic, but this really is just about the rights of property owners to have clean and undisturbed ground water that flows beneath their property,” said Attorney Nathan Bess.

An Environmental Consulting Firm used modeling similar to the methodology that Conoco and Agrico’s consultants used when they lobbied the Environmental Protection Agency (EPA) and the Department of Environmental Protection (DEP) for a site remedy. With enhanced technologies, they were able to map where the plume moved and saw that it had migrated much farther than what was originally anticipated.

Two emerging classes were established based on current and further expected migration. The Thomas Sub-Class and the Rabin Sub-Class include those properties that are either sitting over the plume, or are in the plume’s calculated migration path.

This migration was part of the EPA’s remedy, which initially saved the involved companies millions of dollars from having to pump the water out of the ground. A previous estimation showed that the natural migration will take 70 years, but Bess confirms that their experts have considered it may take 140-150 years, or maybe even longer.

“Over time you can see the center of the mass of the plume migrate away from the site toward Bayou Texar. I think what we’ve accomplished with the settlement reflects that. We are removed in proximity to the site and we are also removed in time from the actually toxic exposure,” said Bess.

The settlement amounts are expected to range from $2,500 to $3,000 for those in the Thomas Sub-Cass, and $150 – $250 in the secondary Rabin Sub-Class. Checks could come as early as the end of the year.

“Our settlement is not a perfect solution by far. The constituents are still there. To at least give property owners some type of closure with some type of reparation for what has happened is not a bad result,” said Bess.

Eyebrows (and Questions) Raised

The question remains—what about the drinking water in the area?

“Here’s the problem with ECUA and drinking water,” explains Bess. “No one’s able to really calculate where your drinking water comes from.”
ECUA Executive Director Steve Sorrell provided the following statement regarding the current suit:  “I do not think there is any impact on the ECUA. We are not part of the suit and none of our water supply has been impacted recently.”

ECUA also confirmed that their latest water quality report is to be released soon.

“Maybe the best thing about this lawsuit is that it brings these issues to the forefront of everyone’s consciousness. It’s going to create synergies in terms of people talking about air quality and water quality in other parts of Escambia County,” said Bess. “We all want Pensacola to grow in the right way, and in the responsible way. And I promise you one thing that is a significant barrier for that are the environmental problems we have here.”