Finding Necessary Evidence to Back Up a Tip

It was a sensational tip. The public utility responsible for ensuring safe drinking water in Pensacola, Florida knew for years that radioactive waste had polluted several wells and that thousands of people had been drinking this contaminated water. And the utility’s leaders conspired to misinform the public and thwart efforts by state environmental regulators to force the utility to rid the water of this pollutant. As a result, high levels of radium 226/228 from a massive underground plume of toxic chemicals from a nearby Superfund hazardous-waste site were continuing to contaminate the water and exposing residents to high levels of radium—a known human carcinogen linked to bone and nasal cancer.

That’s the story Mike Papantonio, a high-profile lawyer at one of Florida’s biggest law firms, pitched to me in February 2002. I shuddered at the possibility. Already I’d written extensively about the massive underground plume coming from the Agrico Chemical Company fertilizer plant (the Superfund site) and its very real threat to drinking water supplies. But if his tip about the utility’s longtime knowledge and cover-up was true, it would be a huge and important story, perhaps one of the most important the Pensacola News Journal had ever published. My heart raced at hearing this tip, but my mind harkened back to the sage advice of one of my college journalism professors, “If your mother tells you she loves you, check it out.”

Reporting on the Tip

I set out to “check it out” because on its surface Papantonio’s story simply didn’t jibe with the available facts. It would take nearly a year and a half of sometimes intense research to determine that these accusations were not only true, but that the entire story was much, much bigger than anyone understood.

I knew that Papantonio had his own reason to circulate this kind of information, a motive that did not involve serving the public good. He was embroiled in a high profile, class-action lawsuit against Conoco Inc. (now ConocoPhillips), which owns the Superfund site. Papantonio’s partners on the lawsuit included Robert F. Kennedy, Jr. and his Riverkeeper Inc. group, as well as Jan Schlichtmann, the Boston lawyer made famous in “A Civil Action,” a book and movie about a water pollution case in Woburn, Massachusetts. The lawsuit centered on the Agrico underground plume, alleging that the spreading toxic plume damaged property values and endangered the health of thousands of people by contaminating private irrigation wells used to water lawns and fill swimming pools.

Papantonio provided me with about 15 pages of internal memorandums, emails and other documents that he and his team of lawyers obtained during the discovery phase of the pretrial process. I reviewed these records, which appeared to qualify as the basis for a solid story. But I also pursued my own research by going to the county courthouse and poring over hundreds of pages of court filings, documents and depositions in the public record. I was glad I did, because my search made clear that individual pages or portions of memos and e-mails had been carefully picked from the public record, and in some cases this meant that information was taken out of context.

For example, one of the documents Papantonio provided me with was a letter from a Florida Department of Environmental Protection official stating that radium in Pensacola’s public water supply was a health threat. But my independent review of records obtained by Papantonio that were on file at the courthouse included a follow-up memo in which the same state regulator reversed himself. (I would eventually discover there were political reasons for these differing positions that had nothing to do with science. But the omission of this memo concerned me.) Other records Papantonio provided were extremely vague, with no hard data.

Searching for Evidence

I needed well-documented evidence for us to be able to publish this story. I could not rely on weaving together bits and pieces of anecdotal fluff. Unfortunately, not too long after he passed along his tip to me, Papantonio went public with his “data,” appearing on local television and prompting a local weekly to publish a grossly inaccurate story accusing public leaders of “poisoning” the water supply. I was forced to write a story telling our readers that the public records circulated by Papantonio, and on file at the courthouse, “provide no conclusive proof ” that the Superfund site had contaminated the public water supply.

But I never gave up reporting this story. How could I? The records I had reviewed were enticing, to say the least. I began to file numerous public record requests and to copy thousands of pages of inspection reports, memos and letters compiled by state and federal environmental regulators and the Escambia County Utilities Authority, the public utility in charge of the Pensacola area’s water supply. And every month, over the course of the next 17 months, I visited the courthouse to review the latest depositions and documents filed by each side in the Papantonio lawsuit. I built what amounted to a small library of more than 50,000 pages of documents, all of which I meticulously catalogued in rows of white binders. I also created a massive timeline that exceeded 100 pages. This allowed me to place specific memos, e-mails and other data in context.

Slowly a clear—and disturbing—picture emerged. The records revealed:

• Between 1996 and 2000, thousands of residents in central Pensacola, neighboring Gulf Breeze and nearby Pensacola Beach, drank water contaminated with levels of radium 226/228 considered unsafe by federal regulators. They did so because the Escambia County Utilities Authority’s top administrators did not want to spend the millions of dollars needed to shut down contaminated wells or to treat the polluted water. Instead, the utility hired environmental and health consultants to fight regulatory action.
• The public utility and the Florida Department of Health knew that water containing high levels of radium was coming out of taps throughout the city and Pensacola Beach. The health department and the utility had conducted sampling that measured high levels of radium 226/228 in drinking water fountains at an elementary school, the regional airport, a tourist welcome center, government office buildings, and numerous private water taps. The public was never told this information.
• The radium remained in the groundwater and polluted the wells, in large part because Conoco and four other companies responsible for cleaning the toxic plume convinced the federal government not to force them to clean the groundwater. The companies directed contractors to design studies and computer models that would help them convince the federal Environmental Protection Agency (EPA) to approve a “limited action” clean-up alternative that allows the pollutants to naturally filter in the groundwater over 70 years. This “natural attenuation” strategy saved the companies at least $45 million, officials boasted in internal memos.
• The Escambia County Utilities Authority conspired with two of the companies to fight an active pump-and-treat of the polluted groundwater. The utility’s top scientific administrator, without the knowledge of the utility’s elected board, worked with officials at DuPont and The Williams Cos. to draft a letter to EPA claiming the utility’s sewer plant couldn’t handle disposal of the dirty water pumped out of the ground. Federal officials cited that 1993 letter as one reason they ruled against mandating an active cleanup.
• The utilities authority’s top scientific administrator knew the Agrico plume had contaminated public wells. In handwritten notes he wrote that contamination from the plume was “likely” in utilities authority wells. Yet he insisted repeatedly to the public and the utility’s five-member elected board that the Superfund site had not polluted the public water supply.
• Residents might have been drinking the radium-polluted water for decades. The city was forced in 1958 to close a public well in the heart of Pensacola due to contamination suspected to have originated from the fertilizer plant. Follow-up studies warned that pollution from the plant was contaminating public wells. In 1972, the U.S. Geological Survey estimated that the toxic plume was impacting five wells. Nothing to remedy this situation was ever done.

Findings Lead to Action

In September 2003, we published a three-day series outlining these findings. Reaction was swift. The State Attorney’s Office impaneled a grand jury to investigate the newspaper’s findings, specifically whether Escambia County Utilities Authority administrators knowingly put the community at risk of health problems related to radium in the drinking water. State Attorney Curtis Golden also asked the grand jury to examine the activities of officials from Conoco who were responsible for cleaning up the massive underground plume.

One of Florida’s U.S. Senators, Bill Nelson, a Democrat, and one of the state’s members of the House of Representatives, Jeff Miller, a Republican, called on the EPA to review whether its original decision to allow the toxic plume to naturally filter over seven decades protects the public health. Miller was particularly upset that the utilities authority never told members of the public that they were drinking radium-polluted water. “The choice was not given to the citizen,” he said. “The choice was made by a bureaucrat somewhere who chose not to inform the citizens of the potential risks.” A short time later, the Escambia School District started to do its own tap water tests in schools serviced by the affected wells. This testing revealed high levels of radium in some samples.

The grand jury spent six months investigating the situation. In May it issued a scathing report blasting the Escambia County Utilities Authority and state and federal regulators for failing to protect the public. It also ripped Conoco and the other companies for being “motivated by financial reasons, not by health, safety and welfare considerations.” But the grand jury did not issue any criminal indictments, noting that in Florida “dereliction of duty” by a public official is not a crime. It did, however, issue a number of recommendations, many of which are being implemented by the utilities authority.

In April, ConocoPhillips had settled its lawsuit with Papantonio, agreeing to pay $70 million. Most of that money will go to 7,000 residents who owned, or once owned, homes impacted by this Superfund’s toxic plume. Meanwhile, residents continue to live with the consequences of this underground pollution. “EPA chose to wait, and now the agency tells us that after 70 years, nature will have corrected the damage done to the groundwater,” the grand jury wrote in its 43-page report. “Even if that is possible, 70 years will not correct the damage to the lives and properties of those injured by pollution.”

Scott Streater is the environmental reporter for the Fort Worth Star-Telegram. He left the Pensacola News Journal in September 2003, where he’d won many national and state awards for environmental reporting.