FDEP Records Reveal Flawed, Incurious "Investigation" of City's Illegal Dumping

FDEP Records Reveal Flawed, Incurious "Investigation" of City's Illegal Dumping

Thanks to Governor Charlie Crist's Office of Open Government, the Florida Department of Environmental Protection (FDEP) Division of Law Enforcement (DLE), Bureau of Environmental Investigations (BEI) sent us the requested records without being paid for them.

Based on FDEP's documents, I have requested that FDEP reopen its file because it missed so much, as documented below.

The FDEP City of St. Augustine illegal dumping documents were requested in October 2006, when Captain Stewart Romack promised they'd be sent). FDEP had since January 2007 nastily demanded over $80 for records on a criminal investigation that resulted from my call to the National Response Center on February 16, 2006. I refused to pay FDEP for documents. As the great American diplomat Charles Cotesworth Pinckney said, "not one cent for tribute."

When a citizen reports a crime to federal and state authorities, they should not be charged for copies of the file.

What do the documents reveal?
1. Chief Operating Officer JOHN REGAN, P.E., admitted that the location in question is the "OLD CITY RESERVOIR," after city officials quibbled about the name (and "anonymice" postings on St. Augustine Record's "Talk of the Town" website denied it was the OLD CITY RESERVOIR.


2. Then-Public Works Director WILLIAM LEETCH and other city employees told EPA and DEP criminal investigators that there was only clean materials dumped at the site (just as then-MAYOR GEORGE GARDNER told me on February 24, 2006). No investigation of perjury or false statement or obstruction of justice was conducted.


3. FDEP says it will consider the current investigation and its resolution should additional investigations of the City be necessary due to further violations of a similar nature."


4. FDEP did not interview City Manager WILLIAM B. HARRISS, who was left unperturbed. HARRISS wrote an apple-polishing letter to the FDEP after FDEP refused to prosecute.


5. FDEP did not interview then-Mayor GEORGE GARDNER, or Commissioners ERROL JONES, DONALD CRICHLOW, SUSAN BURK or JOSEPH LEROY BOLES, JR. (now Mayor).


6. FDEP did not issue any search warrants for city records.


7. FDEP apparently trusted City of St. Augustine officials to provide records and information, taking their word for it.


8. FDEP did not interview former City Attorney JAMES PATRICK WILSON, who had advised CITY MANAGER WILLIAM B. HARRISS that he needed a permit.


9. FDEP did not obtain key witnesses' testimony under oath.


10. FDEP did not take accurate notes or write up accurate statements.


11. FDEP did not present the case to a Grand Jury.


12. FDEP did not present the case to a State's Attorney.


13. FDEP did not present the case to the State Attorney General.


14. FDEP did not prosecute, even though there was no excuse for dumping the entire contents of the old city dump into the Old City Reservoir.


15. FDEP investigator write-ups don't note key facts, including the fact that:


a. City and county officials at first denied there was an Old City Reservoir;

b. HARRIS' city employees were illegally dumping in the Old City Reservoir two days after criminal investigators first appeared.

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16. FDEP investigator write-ups often facts wrong, omitting the name of the person who accompanied me in meeting with its investigators at the Old City Reservoir. Unctuous, ungrateful FDEP claims it "seized" a DVD from me, when I gave it to DEP and EPA investigators with the notation that they could keep it.

17. There is nothing in the file reflecting any communications with former City Attorney Jim Wilson, who resigned effective October 13, 2006. It appears that he did nothing to mislead FDEP or continue the coverup. On the other hand, St. Augustine city officials made false statements to FDEP that FDEP has not investigated or charged. There is nothing in the file reflecting FDEP ever interviewed Mr. Wilson. There is no attorney-client privilege for government attorneys, who work for us. Failure to interview Mr. Wilson, or City Manager WILLIAMB B. HARRISS, or Mayor GEORGE GARDNER, or any of the Commissionsers, shows that the FDEP investigation breaches the standard of care for environmental crimes investigations. This coverup will not stand.

18. In a gigantic leap of faith, here's what FDEP wrote in a case where elevated arsenic and other contaminant levels are still in our Old City Reservoir, followed by the truth: FDEP says its Bureau of Environmental Investigations (BEI) "investigation" concluded:

a. "the city's violation does not appear to be deliberate." Wrong. The city started dumping before it applied for a st. Johns river water management district (SJRWMD) permit, continued dumping after sjrwmd said not to dump, in person and by certified mail, and continued dumping after EPA and FDEP criminal investigators arrived.

b. "[N]o non-compliant trends or attitudes exist." Again, FDEP is wrong. The city apparently dumped in and around the old city reservoir in the past -- there was no investigation of past dumping. The city had no environmental regulatory compliance person. The city refused to answer over 90 questions that were asked commencing February 24, 2006.

c. "No economic or specific motive for permit violations could be identified." Once again, FDEP is wrong. The City saved money by disposing of the contents of its old illegal city dump in the old city reservoir, while helping hasten a trouble-prone $70 million public- private partnership (Sebastian Inland Harbor).

d. "The City of St. Augustine has taken steps to educate staff regarding environmental permitting compliance issues and have (sic) taken steps in the form of counseling and environmental training of City personnel within management positions." What? This is not a valid basis for refusing to subpoena city manager William B. Harriss & Co. to a grand jury. No proof is provided. There is no mention of any training for employees that includes their right to blow the whistle and not to be ordered to sort through contaminated trash without training or employee protection. The "training" assertion does not justify refusal to take the case to a grand jury.

Efforts to obtain comment from Captain STEWART ROMACK and City of St. Augustine Commissioners were unavailing. In fact, I called Captain Romack 13 days ago to afford him an opportunity to review the file on the coverup. We've not heard back from Captain Romack. I also asked at the July 9, 2007 meeting why former Mayor GEORGE GARDNER, Commissioners ERROL JONES, DONALD CRICHLOW, SUSAN BURK or JOSEPH LEROY BOLES, JR. (now Mayor).City Commissioners about the fact they and HARRISS were not interviewed -- there was no response.

CONCLUSIONS:
A. FDEP is suffering from delusions of adequacy. As David Thundershield Queen says, DEP stands for "Don't expect protection." FDEP is currently up for consideration for abolition under "Sunset" legislation. Its Watergate-style coverup of dumping 30,000,000 pounds of contaminants into the Old City Reservoir requires strong consideration to "sunsetting" FDEP. As our Founders wrote in the Declaration of Independence, when governments are unresponsive, we must consider whether to "alter or abolish" them.

B. When FDEP completes its negotiations with the City of St. Augustine, the documents in quo may be used in an administrative hearing challenging FDEP's refusal to enforce the law as wrutten against the Nation's Oldest (European-founded) City. "Justice must not be done in a corner, nor in any covert manner." State ex rel Herald Mail Co. v. Hamilton, 267 S.E.2d 544,548 (W.Va. 1980), citing 1676 Charter of Fundamental Laws of West New Jersey, Ch. XXIII. Concealment is contrary to our country’s fundamental ideas of due process and fairness. See, e.g., Daniel Patrick Moynihan, SECRECY (1998). As Senator Moynihan put it best, Everyone is entitled to his own opinion, but not his own facts. NY Times, April 1, 2003, Letter, Moynihan’s Apt Words, by Ira Sohn.

C. Our City's political machine has enough connections to shut down an investiation of illegal dumping, based upon absurd pretexts.

D. FDEP's arrogant refusal to discusss its coverup and its refusal to disclose its investigative documents from October to June is an instance of secret
law: 'Secret law" is condemned as undesirable for many reasons, :
Secret law, or law imperfectly known and developed, is undesirable for many reasons but is especially injurious to the policy of getting controversies settled without adjudication. The clearer and better known the law is, the fewer disputes over it that will arise and the more readily they will be disposed of.
Joseph & Gilbert, "Breaking the Settlement Ice: The Use of Settlement Judges in Admin. Law," Report to the Administrative Conference at 33-34 (May 20, 1988).

See President Clinton’s 1993 speech on Earth Day, in which he stated, It is time that the U.S. government begin to live under the laws it makes for other people. 19 EPA Journal (April-June 1993) at 3. President Clinton has written that
Workers who come forward with reports of violations of the law should be protected. .... The worker needs to have an assurance that somewhere in the federal government is an office that will act effectively to protect the worker. Swift action ... to ensure that reprisals will not be tolerated will send a clear message on this issue..... I will send a very clear message to senior officials throughout the federal government.... employees must feel comfortable in sharing their concerns with their own [employer]. We must view these internal criticisms as something to learn from and to gain from, not as attacks that must be quashed..... Whether it concerns the safety of drugs or food, the dangers of hazardous waste at a certain site, or which particular projects most deserve[] federal funds, we are better served as a nation if dissenting views are given a full and fair hearing. Credible positions by scientists should be able to withstand dissenting views of other scientists.
March 18, 1992 letter from Bill Clinton to Messrs. Louis Clark and Jeff DeBonis re:"Protecting Integrity and Ethics" Conference and protection of federal employee whistleblowers, quoted in Paul Sloca , "Whistleblowers should have attentive ear in White House," The Oak Ridger , December 2, 1992 at 1.

E. Worldwide, environmental pollution is often accompanied by corruption, as here in St. Augustine, Florida. See generally, Al Gore, Earth in the Balance (1992). It's time to clean up the city of St. Augustine, starting now. The example of the prosecution of PIERRE THOMPSON for cutting down a bald eagle nest tree (after six years)(see below) inspires us to say, like any good diplomat, "Don't take no for an answer."