[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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