[PCA] Draft copy of challenge to Fla Dept Environmental Protection and city St. Augustine Consent Agreement
Dwight Hines
dwighthines at bellsouth.net
Fri Jun 13 12:38:35 CDT 2008
Attached and enclosed is a draft copy of challenge to Fla Dept
Environmental Protection and city St. Augustine Consent Agreement.
What astounds me is that the plants and animals that were killed by
the toxic materials are not even considered by the DEP or the City.
Please let me have your comments.
Dwight Hines
=============
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
________________________________________________________________________
______
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, 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 insolentd manner of 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 auifer 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 a 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 Afro-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 Cty Rservoir, 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 Cty
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 Cty Rservoir.
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 travelled 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 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 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.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
recommended that a Final Order be rendered by the Department that
sustains the Consent Order with the single exception that a
requirement be added: that the planted wetlands be monitored by
spring and autumn semi-annual visits by DEP personnel over a
reasonable length of time if Department resources are sufficient to
provide such monitoring.
CONCLUSION
The violation not remedied by the Consent Order is 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.
The people and your Petitioners have been waiting for answers since
the illegal dumping was uncovered in February 2005. Respondents are
stonewalling again. Petitioners request expedited discovery and full
responses to their December 31, 2007 discovery requests and an open
public hearing.
Let justice be done.
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 Motion for Enlargement of Time was
sent to counsel for FDEP and COSA on June 13, 2008.
Ed Slavin
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