Clean Up City of St. Augustine, Florida

In secret, behind locked gates, the managers of the Nation's oldest (European-founded) City illegally dumped 40,000 cubic yards of contaminants in the Old City Reservoir, where people fished and swam for generations. St. Augustine's pollution symbolizes our City's putative leaders' lack of trust in the public's right to know. This is advanced citizenship. Please share your questions and whistleblower disclosures about City government. Then let's demand answers. Expect democracy.

Monday, June 16, 2008

IN HAEC VERBA: Full Text of 6/13/2008 Filing Challenging City of St. Augustine's Latest Secretive Consent Decree With FDEP Over Illegal Dumping Case

BEFORE THE STATE OF FLORIDA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (FDEP),
DOAH Case No. 08-213
v. Office of General Counsel (OGC) FILE NO. 06-2179
CITY OF ST. AUGUSTINE FLORIDA (COSA),.
Respondent.
______________________________________________________________________________
AMENDED PETITION FOR REVIEW OF AMENDED CONSENT ORDER
AND MOTION FOR FDEP TO RECUSE ITSELF FROM RULING ON STANDING

______________________________________________________________________________
Petitioners Judith and Anthony Seraphin, John J. Hagarty, Debra Valenti-Epstein, Diane and Gerald Mills, Dr. Dwight Hines, David Thundershield Queen, Ed Slavin et al. hereby respectfully petition for instanter discovery (requested December 31, 2007) and an open public hearing.

In addition to the flaws identified in the December 27, 2007 and later filings (incorporated by reference), the revised Consent Decree is fatally flawed and violates Petitioners' rights. FDEP and COSA met secretly, excluding Petitioners, drafting a revised Consent Decree without involving the citizens who reported and pursued COSA's environmental crimes

The secretive, insular and insolent manner of FDEP and COSA negotiating and adopting the Consent Decree without Petitioners' participation is arbitrary, capricious and an abuse of discretion, a violation of Environmental Justice rights and of the Due Process and Equal Protection due to Respondents FDEP and the Respondent City of City Augustine's failures to comply with the law, including but not limited to their:

1. Failure to consider or evaluate the unique geology and hydrology of the two sites in quo, one bordering two rivers (Riberia Street site) and the other a coquina pit lake -- our Old City Reservoir -- which former EPA Region 4 Regional Administrator John Henry Hankinson called "an open sore going straight down to the aquifer and the groundwater," failing to take care that the laws are faithfully executed for some two years and four months since Respondents' illegal dumping was reported to the National Response Center.

2. Failure to answer public questions about Respondent COSA's environmental crimes and other dumping actions for two years and four months since Respondents' illegal dumping was reported to the National Response Center in February 2006

3. Failure to provide access to documents on city owned and city leased vehicles as required by F.S. 119 (Open Records), during the period 2005-2008.

4. Failure to comply with Rule 1B-26.003, F.A.C. specifying what records are maintained so meaningful comprehensive requests of the databases can be made.

5. Failure to require that contractors comply with rules and guidelines of DEP and generally accepted scientific methods and procedures for random sampling of old City Reservoir, thereby failing to provide information that is valid, reliable, and generalizable.

6. Failure to require that contractors comply with rules and guidelines of FDEP and generally accepted scientific methods and procedures for data analyses of toxic materials to show error ranges (confidence intervals), thereby failing to provide information that is valid, reliable, and generalizable.

7. Failure to develop an acceptable plan to restore the habitat and ecology of the Old City Reservoir as near as possible to its level of quality in fauna and flora prior to the illegal toxic dumping, thereby failing to provide information that is valid, reliable, and generalizable.

8. Failure to inventory current quantitative and qualitative species of plant and animal life, thereby failing to provide information that is valid, reliable, and generalizable.

9. Failure to require a single biological indicator or keystone species to estimate quality of process of restoration of ecology and habitat, thereby failing to provide required information that is valid, reliable, and generalizable.

10. Failure to provide the details needed on how the illegal dumping took place so corrections to the decision system can be made to prevent future environmental lawbreaking.

11. Failure to include the residents of the City of St. Augustine in the decision making processes, as they were promised, prior to the signed agreement between City and DEP, with FDEP and COSA willfully and knowingly holding an all-white public meeting at City Hall that was attended by not one single African-American (other than the city employee who tape-recorded it for the COSA City Clerk's office). Respondents' Apartheid, Jim Crow segregationist approach, refusing to meet in the Lincolnville neighborhood, is a badge of fraud.

12. Failure of the City and DEP to take even a single measure of impact on the illegal toxic dumping on the emotional, social or medical health of the minority African-American communities involved, thereby failing to provide necessary information that is ecologically valid, reliable, generalizable and actionable.

13. Failure to develop or put into place a tracking system for the different members and groups of the community on the health effects of toxic dumping for at least some time certain, thereby failing to provide necessary information that is ecologically valid, reliable, generalizable and actionable.

14. Failure to take samples of locations along the routes traveled by the trucks that hauled the contaminated materials to determine the extent and degree of spread of illegal toxic substances, thereby failing to provide necessary information that is ecologically valid, reliable, generalizable and actionable.

15. Failures to develop or maintain a model for how humans are impacted by the toxic materials in quo when they are already exposed to other toxic materials that were illegally dumped by the city prior to the present case, thereby failing to provide necessary information that is ecologically valid, reliable, generalizable and actionable.

16. Failure to sample a single adjacent body of water to the Old City Reservoir to determine the extent and degree of diffusion of toxic materials to other locations in the waters of St. Johns County and the City of St. Augustine, thereby failing to provide necessary information that is ecologically valid, reliable, generalizable and actionable.

17. Failure to test a single sample of the toxic materials for dibutyl tin, a compound used extensively in St. Augustine in paints to inhibit and retard the growth of marine organisms on ship hulls, understanding that dibutyl tin was banned world wide as of January 1, 2008, because of its extreme toxicity, thereby failing to provide necessary information that is ecologically valid, reliable, generalizable and actionable.

18. Failure to act according to the rules of quality control and the principles of the federal Data Quality Act, to the point where their actions were haphazard and a flagrant violation of the Administrative Rules of Procedure.

19. Failure to notify the Florida Department of Health on the killing of all the fish in the Old City Reservoir, as required by law, thereby greatly weakening the value and generalizability of the Department of Health databases.

20. Failure to notify the Florida Department of Fish and Wildlife "Fishkill" hotline of the total kill of all the fish in the Old City Reservoir, as required by law, thereby greatly weakening the validity, the reliability, and generalizability of the Florida Department of Fish and Wildlife "Fishkill" databases.

21. Failure to even attempt, in the most casual manner, to determine the source(s) of the species of arsenic and other toxic materials that were in the materials dumped in the Old City Reservoir.

22. Failure to respond appropriately to demands for discovery of documents and records that are directly related to the fair and complete determination of the extent and degree of illegal toxic dumping in other locations in the City and the County;

23. Failure to provide information about what other city and county agencies had knowledge of the facts of the illegal toxic dumping prior to it being discovered and reported by citizens to the National Response Center hotline on illegal toxic dumping;

24. Failure to provide a single medical examination or even simple health surveys of the drivers and loaders of the trucks that hauled the toxic materials to determine the extent and degree of their biological responses to the illegally dumped toxic materials.

25. Failure to provide a single medical examination or even simple health surveys of the families of the sorters, loaders and drivers of the trucks who hauled the toxic materials to determine the extent and degree of their biological responses to the illegally dumped toxic materials, even though FDEP found that there was no hazardous training of the workers who sorted through tens of thousands of cubic yards of contaminated solid waste.

26. Failure to provide a single medical examination (or even simple health surveys) of the children and adults and families of the residents of St. Augustine and St. Johns County who frequented the five playgrounds that are located directly on the routes traveled by the trucks that hauled thousands of loads of the uncovered toxic materials to determine the extent and degree of their biological responses to the illegally dumped toxic materials.

27. Failure to create and make public meaningful and easily interpreted graphics that show the extent and the degrees of contaminants in readily identifiable geographical locations in the City and County.

28. Failure to create and make public meaningful and easily interpreted graphics that show the extent and the degrees of contaminants in readily identifiable geographical locations in the City and County in relationship to other toxic waste locations.

29. Failure to faithfully execute the laws of the State of Florida and the United States of America, deny and depriving Equal Protection and Due Process to the people of Lincolnville and West Augustine which are low-income, African-American, Environmental Justice and Historically Underutilized Business Zones (HUB Zones).

30. Failure to forbid COSA from returning any of the material from the Holmes Blvd. site to Lincolnville (Riberia Street site).

31. Failure to remedy the violations by punishing individual wrongdoers, rather than City taxpayers.

FDEP AND COSA CANNOT MEET THEIR BURDEN OF PROOF

FDEP and COSA cannot meet their burden of proof to show the Consent Order is reasonable.
The Burden of Proof is upon FDEP and COSA and they cannot meet their burden of proof. As DOAH Administrative Law Judge David M. Maloney wrote in Lambou v. FDEP and Panfla Development, LC, 02-4601 (June 24, 2003 Recommended Decision):
123. The seminal case on challenges to DEP consent orders is a DEP Final Order rendered in Sarasota County v. State of Florida Department of Environmental Regulation and Ronald Falconer, 9 FALR 1822 (1987). In that order, the Secretary of the Department described two types of consent orders:
There are two classes of consent orders that have been issued by the Department. The first class of consent order serves as authorization for a permittable type of activity that has not yet been conducted or is ongoing in nature and is the type of activity more properly the subject of a permit application.
* * *
[discussion of Williams v. Moeller and DER, 8 FALR 5537 (1986).]
The second class of consent order is issued by the Department to resolve an alleged violation of statute or rule resulting from a facility being constructed without a permit, or from a facility causing pollution that must be ameliorated or both. Consent orders of this type are issued to settle existing, outstanding violations of law, and may require any or all of the following as the specific circumstances of each case dictate: payment of penalties, reimbursement of Department costs, payment of damages to the environment, or remedial action.

The Consent Order at issue in this case is of the second class. The Consent Order is not to serve as authorization of a permittable type of activity as are consent orders in Falconer's first class. (The evidence, moreover, strongly militates toward the conclusion that the original alteration activity on site conducted by Panfla would not have been permittable.) The Consent Order in this case was entered to resolve a violation of law resulting from activity without a permit, that is, a consent order in Falconer's second class.

124. When a consent order falls into the second class described by Falconer, the burden is on the Department and the settling party to prove the consent order's reasonableness.

125. Falconer instructs that the form of this proof depends on whether the project would have been entitled to a permit had the respondent applied for one.

126. "If the respondent or the Department can carry the burden of proving that a permit could have been obtained based upon the reasonable assurance standard, then entry of a consent authorizing the project to remain is per se reasonable." Falconer, above. The Department and Panfla did not carry the burden of proving that a permit could have been obtained based upon the reasonable assurance standard. To the contrary, the evidence of Petitioners militated toward the conclusion that the reasonable assurances could not have been given for the alteration Panfla undertook.

127. "If the project would not have been entitled to a permit, . . . inquiry as [to] the appropriateness of the consent order may be the subject of Section 120.57 review." Id. The necessity of that inquiry has been raised by the Petitioners' Amended Petition.

128. "Factors such as the nature of the violation, the sufficiency of any penalty, the availability of Department resources, Department enforcement priorities, and the harm that might result from restoration would then be considered in determining the reasonableness of the Department's settlement." Id.

The Nature of the Violation

129. The nature of Panfla's violation is egregious. In this day of DEP Environmental Resource Permitting and age of environmental awareness, the activity conducted on site by Panfla without a permit is remarkably flagrant in its disregard for state law and the Department's permitting authority.

130. On the other hand, whether it was Panfla's plan to create the lake without permitting and to suffer the cost of such a violation of law as a cost of business that could be passed on to purchasers of its lots in the Tide Creek Landing subdivision, as argued by Petitioners, is an inference that cannot be drawn from this record.

131. One might conclude that creation of an amenity attractive to purchasers was a benefit of the Restoration Plan attractive to Panfla. There is no direct evidence, however, to substantiate the finding that this was Panfla's plan from inception. No representative of Panfla (other than its environmental consultant, Mr. Armstrong, who entered the picture after the illegal alteration) nor any representative of the contractor who conducted the illegal activity appeared at hearing, let alone testified. Nor was there any other direct evidence to support the Petitioners' assertion that Panfla intended to create a lake from the beginning. To the contrary, the original filling activity was intended to create more land for more lots.

132. Whatever its intent and whenever formed, the environmental damage wreaked by Panfla is profound. While the quantification of that damage to numbers of wildlife and flora cannot be made on this record, it is clear that the activity had a serious adverse impact to natural resources. Furthermore, in a karstic environment that had existed for thousands of years, several karst ponds in the midst of wetlands both jurisdictional and isolated are lost forever.

The Sufficiency of the Penalty, the Availability of Department Resources,
and Department Enforcement Priorities.

133. Petitioners did not challenge the sufficiency of the penalty, either in terms of civil penalties or recovery of Department costs. There is little in the record that relates to the availability of Department resources or Department enforcement priorities other than Dr. Tobe's unadorned assertion that the Department does not monitor restoration activities with regard to wetlands.

Harm from Restoration

134. The focus of Petitioners' case is harm caused by the activities called for by the Consent Order's Restoration Plan. Petitioners showed that the activities called for by the plan might be strengthened or, in the words of Petitioners' experts, be "better." They assert that the Department's failure to insist on an attempt to restore ponds that would have features more akin to the karst ponds that preceded the alteration rather than allowing a subdivision lake, causes harm. But they did not show that the failure of such insistence would create harm. To the contrary, they did not show that their approach would assist in the restoration of the natural resources. They showed only that it would be somewhat more like what was there before while conceding that what was there before could never be fully attained.

135. To require the attempt advocated by Petitioners would be to penalize the wrongdoer more than the penalties currently imposed by the Consent Order. Whether the additional penalty advocated by Petitioners should have been required is the subject of the Department's exercise of enforcement discretion.

Exercise of Enforcement Discretion

136. The ultimate question in the review of a Consent Order that falls into Falconer's second category is "whether the action taken by the Department is a reasonable exercise of its enforcement discretion." Id.

137. "Unless a third party challenger can show that discretion has been abused, its exercise should not be disturbed." Id. Had Petitioners succeeded in demonstrating that natural resources are damaged by the Consent Order's Restoration Plan then, depending on the extent of the damage, they might have demonstrated an abuse of discretion. As the record stands, their attempt fails.

138. This case does demonstrate, however, that the success of returning to wetlands some of the disturbed site is not known. As Dr. Tobe candidly testified, monitoring for a lengthy period of time is necessary to determine the success of the return of the shelf and other parts of the property to wetlands.

139. While there is no evidence as to the DEP resources that would need to be marshaled in this regard, it seems unlikely that periodic monitoring visits for some reasonable amount of time would entail too great a consumption of Department resources, particularly since the Restoration Plan calls for a method of monitoring to be installed by Panfla.

140. If the Plan's monitoring methodology is sound, and there is nothing of record to suggest otherwise, then it seems that DEP's commitment to monitoring would entail no more than visits to the site, twice yearly as called for by the Plan, and oversight of the monitoring process installed and provided by Panfla as a means of verification.

141. In short, it is clear that an active role of DEP in the monitoring process is necessary in order to confirm the adequacy of the process installed by Panfla, to assure the accuracy of reports provided by Panfla under the current plan, and to support the ultimate success of the return of wetlands that is a goal of the Consent Order's Restoration Plan. Some reasonable amount of time should be selected; one that falls somewhere between the five years called for in the Plan and the centuries suggested by DEP's expert.

(Emphases added).

The City of St. Augustine's environmental violations -- polluting the Old City Reservoir and the Lincolnville neighborhood -- are not remedied by the Consent Order. Those violations are both "flagrant" and "egregious," just like the one at issue in the case quoted supra.

Respondents cannot meet their burden of proof to show that if the illegal dumping in quo had taken place in a high-income neighborhoods, someone would have been indicted by FDEP. Instead, FDEP has subjected the people of Lincolnville and West Augustine to injustice, Environmental Racism and neglect.

MOTION FOR FDEP'S RECUSAL FROM RULING ON STANDING

FDEP is in no position to rule on standing and its recusal is requested. F.S. 120.665.

As James Madison wrote in The Federalist No. 10::
"No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time . . . .".

See also In re Murchison, 349 U.S. 133, 136 (1955) (Black, J.) ("[O]ur system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome."); TWA v. Civil Aeronautics Board, 102 U.S.App.D.C. 391, 392, 254 F.2d 90, 91 (1958). Spencer v. Lapsley, 20 How. 264, 266 (1858); Publius Syrus, Moral Sayings 51 (D. Lyman transl. 1856) ("No one should be judge in his own cause."); Blaise Pascal, Thoughts, Letters and Opuscules 182 (Wight transl. 1859) ("It is not permitted to the most equitable of men to be a judge in his own cause.").

As William Blackstone wrote, 1 W. Blackstone, Commentaries on the Laws of England 91, "[I]t is unreasonable that any man should determine his own quarrel,." citing Dr. Bonham's Case, 8 Rep. 114a (C.P. 1610); see also City of London v. Wood, 12 Mod. 669, 687 (1701)(Lord Holt)(invalidating fine for refusal to serve as sheriff recovered by the city in its own court of Mayor and Aldermen). See also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)(overruling case where Chief Justice of Alabama Supreme Court sat in judgment of case that would set precedent for his own pending case); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Withrow v. Larkin, 421 U.S. 35 (1975); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir. 1970); American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966); .SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.
1977).

FDEP negotiated in secret and inexplicably agreed to a Consent Decree that does not remedy the violations, see 1-30, supra at pp 1-4. Since FDEP's actions are at issues, FDEP is in no position to determine Petitioners' standing or to rule upon FDEP's "own quarrel.". Blackstone, supra. This is the sort of conflict of interest that Anglo-American courts have been protecting us against since at least 1610. Dr. Bonham's case, supra; Tumey v. Ohio, 273 U.S. 510, 522-24 (1927) (Taft, C.J.).

It is well-settled that a government official is disqualified from ruling on a case in these circumstances "if he either signs a pleading or brief" or "if he actively participated in any case even though he did not sign a pleading or brief." Laird v. Tatum, 409 U.S. 824, 828 (1972) (Rehnquist, J.) Since FDEP's counsel cannot negotiate a putative settlement agreement and rule on standing to challenge it without violating reasonable ethics expectations, this action must be referred to DOAH to assign to an ALJ to conduct a hearing. F.S. 120.665.

CONCLUSION

The people of St. Augustine, Lincolnville, West Augustine and your Petitioners have been waiting for answers since the illegal dumping was uncovered in February 2005.

Respondents are stonewalling again.

Respondents have utterly failed to listen to and protect the public.

Your Petitioners urgently request expedited discovery and full responses to their December 31, 2007 discovery requests and an open public hearing. See December 27, 2007 petition, December 31, 2007 discovery requests and all other filings in this action, incorporated herein by reference.

.In the words of the ancient equitable maxim:

Fiat justitia, ruat coelum. ("Let justice be done though the heavens fall.")

Respectfully submitted,



JUDITH SERAPHIN



ANTHONY SERAPHIN



JOHN J. HAGARTY



DEBRA VALENTI-EPSTEIN



DIANE MILLS



GERALD MILLS



DR. DWIGHT HINES, Ph.D.



DAVID THUNDERSHIELD QUEEN




ED SLAVIN


CERTIFICATE OF SERVICE
I hereby certify that the enclosed Amended Petition for Review of Amended Consent Order and Motion for FDEP's Recusal was sent to counsel for FDEP and COSA on June 13, 2008.

Ed Slavin

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