Friday, December 28, 2007

IN HAEC VERBA: Seven Local Citizens Ask FDEP to Order Prompt Cleanup Old City Reservoir, Stop Trashing Lincolnville, West Augustine

This is the petition filed with FDEP to challenge the City of St. Augustine's approval of a Consent Order without public hearing or Environmental Justice concsideration on the effects upon two (2) African-American and low-income communities - Lincolnville and West Augustine:

BEFORE THE STATE OF FLORIDA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (FDEP),

v. Office of General Counsel (OGC) FILE NO. 06-2179

CITY OF ST. AUGUSTINE FLORIDA (COSA),.
Respondent.
______________________________________________________________________________

SWORN, VERIFIED PETITION FOR ADMINISTRATIVE HEARING
______________________________________________________________________________

Petitioners hereby Petition for Review pending further information awaited from the Respondent CITY OF ST. AUGUSTINE (COSA), and the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (FDEP). See ¶ 14 of the proposed Consent Order. Petitioners respectfully request that the individuals responsible for the illegal dumping be named as respondents and be held responsible in their individual capacities for cleanup costs, namely WILLIAM B. HARRISS and the CITY COMMISSIONERS. Petitioners respectfully request that other Petitioners be recognized at later dates, within 30 days.

(a) PETITIONERS. Your Petitioners Judith and Anthony Seraphin reside at 102 South Street, St. Augustine, Florida. Your petitioners Diane and Jerry Mills, P.O. Box 3767, St. Augustine, Florida, 32085-3767, reside outside St. Augustine city limits but own a coquina lake across the street from the Holmes Blvd. property in quo. Your Petitioner Ed Slavin, Box 3084, St. Augustine, Florida, reported the city's illegal dumping to the National Response Center. Your Petitioners Slavin, Dr. Dwight Hines, Ph.D.,150 Nesmith Avenue, St. Augustine, Florida 32084 and David Thundershield Queen, 165 Twine Street, St. Augustine, Florida 32084 asked questions about the dumping in public meetings, and Dr. Hines filed an Open Records lawsuit regarding the Respondent’s refusal to provide truck records related to the illegal dumping. Respondents refused to allow anyone (including Mr. Seraphin, Mr. Slavin, Dr. Hines and Mr. Queen) to speak at the November 13, 2007, City Commission meeting when they approved the Consent Order, outside the ordinary course of business and with minimal advance public notice.

(b) NOTICE. Petitioners Judith and Anthony Seraphin (the Seraphins) and Diane and Gerald Mills (the Mills), Ed Slavin, Dr. Dwight Hines and David Thundershield Queen all received notice of the Consent Order in the December 8, 2007 St. Augustine Record, which is less than 21 days before receipt of this Petition by FDEP.

(c) STANDING. The Seraphins and the Mills own their own separate properties and businesses in and around St. Augustine. The Seraphins and the Mills breathe the air, drink the water, drive the roads and pay property taxes in St. Augustine and St. Johns County. The Seraphins own a house zoned as commercial directly on Rev. Dr. Martin Luther King, Jr. Blvd. next to the St. Augustine Post Office, and a rental house on Twine Street, one half block from the Riberia Street Route, which would be directly exposed again to contaminant and diesel pollution from the unspecified, unplanned number of trucks returning to Lincolnville with toxic materials. Petitioners reside at a restored home located only one block from the Riberia Street route over which the contaminants were hauled and only one block from the proposed Riberia Street route of the trucks carrying contaminants back into the Lincolnville community. The Seraphins are active in the Lincolnville Neighborhood Association and Judith Seraphin chaired the December 13, 2007 neighborhood protest meeting of “Stop the Dump.”
Petitioners and all other persons similarly situated were forbidden to speak by the Board of Commissioners of the Respondent CITY OF ST. AUGUSTINE at its November 13, 2007, meeting, which was held outside the ordinary course of business at 8 A.M. to deter community members from attending the meeting on the Consent Order.
Your petitioners Diane and Gerald Mills reside just outside the St. Augustine city limits; however, own a coquina “lake” to be used for their water company -- near the Old City Reservoir on Holmes Blvd.
Your petitioner, Ed Slavin, reported the illegal dumping to the National Response Center in 2006, and has written about it in columns and articles published in The St. Augustine Record, The Collective Press, Out in the City, Indymedia and on his blog, which FDEP officials have often read, at www.cleanupcityofstaugustine.blogspot.com, which he began as a result of the CITY's illegal dumping and refusal to answer questions, orally or in writing.
Your petitioner, Dr. Dwight Hines, Ph.D., 150 Nesmith Avenue, St. Augustine, Florida, 32084 helped expose illegal dumping by several Florida jurisdictions and litigated an Open Records lawsuit regarding St. Augustine’s attempted coverup on records of trucks carrying the illegally dumped materials to the Old City Reservoir.
Your petitioner, David Thundershield Queen, 165 Twine Street, St. Augustine, Florida, 32084 is an environmental activist, writer, and community organizer.
Your petitioners, the Seraphins and the Mills, would suffer irreparable harm to their businesses and/or properties if the Consent Order were allowed to stand. The Seraphins, the Mills, Dr. Hines, Mr. Slavin, and Mr. Queen all have rights under the U.S. and Florida Constitutions, and Federal and State environmental and criminal laws to open, honest government – rights that have been violated by the secrecy of COSA and FDEP in adopting the Consent Order without any public hearing or opportunity for public comment – a meeting that commenced at 8 A.M. November 13, 2007, the day after Veteran’s Day (a holiday), outside the ordinary course of business, with minimal notice the preceding Friday (November 9, 2007) – and no public right to speak on the Consent Order, despite information given by the Assistant City Manager ,JOHN REGAN, to the Opinion Editor of the St. Augustine Record, Ms. Margo Pope.

(d) DISPUTED FACTS AND ASSUMPTIONS:. Petitioners dispute and question the Consent Order's asserted facts and assumptions, including numerous material facts that have not been answered yet after 18 months of legal legerdemain. Petitioners respectfully request that the Administrative Law Judge make Findings of Fact and Conclusions of law, including but not limited to the following:

THE CONSENT ORDER CONTAINS INADEQUATE REMEDIES FOR ORGANIZATIONAL LAWBREAKING BY ST. AUGUSTINE.

1. The Consent Order inadequately describes and does not come close to remedying the admittedly serious CITY OF ST. AUGUSTINE environmental violations that have affected two historically African-American low income and minority communities -- Lincolnville and West Augustine. FDEP ordered the CITY OF ST. AUGUSTINE to remove waste that was illegally dumped in our Old City Reservoir and place it in a Class 1 landfill. St. Augustine's response was -- with no direction from the City Commission -- to tell FDEP that St. Augustine would not comply with FDEP's orders:
Under no circumstances, except for a final non-appealable court order, will the City agree to remove the fill (sic) material to a Class 1 landfill.
January 17, 2007 Basic Outline of City's Settlement Proposal at 1, ¶ 4. Petitioner’s Exhibit No. 1 (PX-1). "Saving money" is the only reason given for the City's Boulwareism (“take-it-or-leave it stance of bad faith refusal to negotiate”)..

2. By accepting the City's demand -- without Environmental Justice considerations or community meetings -- FDEP has rewarded the lawbreakers.

3. President Bill Clinton said, "A right without a remedy is simply a suggestion."

THE CONSENT ORDER FAILS TO CONSIDER BIOINDICATORS
AND BIODIVERISTY.


4. The Consent Order errs by failing to discuss bioindicators and human health effects, including the additive effects of multiple sources of environmental contaminants.

THE CONSENT ORDER ERRS BY FAILING TO
CONSIDER ENVIRONMENTAL JUSTICE ISSUES IN
DECISIONS AFFECTING TWO (2) MINORITY AND LOW-INCOME
COMMUNITIES IN OUR NATION’S OLDEST CITY.


5. The CITY OF ST. AUGUSTINE placed its solid wastes in Lincolnville, the oldest African-American community in America, without protecting public health and water supplies.

6. The CITY OF ST. AUGUSTINE moved a portion of its illegal dump to West Augustine, another historically African-American community, without protecting public health and water supplies.

7. Both Lincolnville and West Augustine are Environmental Justice communities with elevated infant mortality rates.

8. The elevated infant mortality rates have not been adequately studied or explained.

9. The Consent Order errs as it was drafted without an Environmental Justice review by FDEP or EPA.

10. EPA Region 4 Environmental Justice director, Cynthia Peurifoy, was never consulted by FDEP.

11. FDEP has no Environmental Justice person working for it in Northeast Florida.

12. FDEP did not consult any other Environmental Justice person in Florida government or academia.

13. FDEP did not base its evaluation upon sound science.

14. These omissions violated the civil rights of African-Americans and of other low-income residents of Lincolnville and West Augustine, violation of Title VI of the Civil Rights Act of 1964 (a law that was adopted because of events in Lincolnville and St. Augustine during 1964).

OUR ST. AUGUSTINE OLD CITY RESERVOIR MUST NOT BE
EUPHEMISTICALLY CALLED A MERE "BORROW PIT."
BY GOVERNMENT AGENCIES.


15. St. Augustine's Old City Reservoir until 1988 must be described as the "Old City Reservoir," not a "borrow pit."

16. FDEP erred by adopting the Respondent City's "borrow pit" semantics when the City, including Assistant Manager, JOHN REGAN,, have used the more descriptive term "Old City Reservoir and “lakes.” JOHN REGAN used the terms “Old City Reservoir” and “lake” in discussions with FDEP and in the December 13, 2007 “Stop the Dump” meeting in Lincolnville, which was videotaped and court-reported.

17. All but one initial reference (e.g., parenthetical or a/k/a) to "borrow pit" must be deleted from the Consent Order, substituting the phrase "Old City Reservoir."

18. No Orwellian substitution of the term"borrow pit" for "Old City Reservoir” should be allowed by FDEP because it is unscientific, undescriptive and misleading.

19. The term "Old City Reservoir" must be used in all documents on this Consent Order due to the serious nature of the City's intentional pollution of its own backup water source, which was used as the City Reservoir until ca. 1998.

SCIENTIFIC CONCEPTS MUST NOT BE "DUMBED-DOWN"
BY CITY OFFICIALS ANY LONGER.


20. Scientific knowledge must no longer be sacrificed on the altar of expediency. City officials and FDEP must no longer patronize citizens by palaver about "pingpong balls" where the dangerous chemicals and substances in quo are more like spinning razor blades, whose combinatory effects are unknown.

21. Decisionmaking must be based upon sound science at both EJ sites.

NO MORE DELAYS -- POTENTIAL AQUIFER AND
GROUNDWATER POLLUTION THREATS MAKE REMEDY URGENT.


22. The Respondent CITY OF ST. AUGUSTINE's Old City Reservoir illegal dumping location is a coquina pit “lake,” a place that long enjoyed pristine water, where people fished and swam for decades and utilized it as potable water.

23. A nearby coquina pit “lake” is to be used for a water utility and was found to have diverse aquatic life (including apple snails) living in a very pure environment.

24. FDEP did not obtain historical data from the nearby coquina pit to determine whether the pristine water had been degraded by Respondents' illegal dumping of contaminants in the Old City Reservoir.

25. That coquina pit “lake” is properly described as "an open sore going right down to the aquifer and groundwater" by Mr. John Henry Hankinson, former EPA Regional Administrator.

26. In March 2006, FDEP ordered the CITY OF ST. AUGUSTINE to remove the pollution immediately.

27. The CITY OF ST. AUGUSTINE's leadership delayed any action from March, 2006 to date.

28. Our Nation's Oldest City's leadership never answered public questions or considered or debated any alternatives prior to our Nation's Oldest City's Manager, WILLIAM B. HARRISS, telling FDEP it would never agree to move the Old City Reservoir contaminants to a Class 1 landfill without a binding final court order. Exhibit PX-1.
29. In November, 2007, FDEP agreed to a Consent Order that gives our Respondent City another 475 days to remove the contaminants, based on inadequate scientific support, without justifying the prolonged delays or failure to dispose of materials properly in a Class 1 landfill.

30. "Justice delayed is justice denied," as Oliver Wendell Holmes said.

31. The contaminants must be removed as swiftly as possible, and be disposed of in a Class I landfill, as FDEP ordered in March, 2006.

32. Pollution of the Old City Reservoir suggests the need for an overall environmental audit and impact statement for all operations of the Respondent CITY OF ST. AUGUSTINE, which does not use life cycle costs in purchasing and has not adopted remedies for Global Warming.

33. The CITY OF ST. AUGUSTINE fails to adhere to mandatory Florida Secretary of State Rule 1B regarding recordkeeping and computer records.

34. The CITY OF ST. AUGUSTINE annually certifies compliance with Florida’s Rule 1B.

35. The CITY OF ST. AUGUSTINE's annual Rule 1B certifications appear to be untrustworthy or untrue.

36. The staff and counsel of the CITY OF ST. AUGUSTINE have filed misleading or inaccurate affidavits in response to an Open Records lawsuit filed by Dr. Dwight Hines, Ph.D.

37. The Consent Order inadequately protects the public interest and does not take steps to restore the environmentally sensitive dumping locations – by its 475 day timetable two (2) years after illegal dumping commenced, the Consent Order unfortunately takes an "all deliberate speed" attitude to what is indisputably an "open sore going straight down to the aquifer and groundwater," as Mr. John Henry Hankinson has stated.

FURTHER DUMPING MUST BE SPARED THE
HISTORIC LINCOLNVILLE ENVIRONMENTAL JUSTICE COMMUNITY


38. St. Augustine is the oldest European-founded city in America (1565).

39. St. Augustine's Lincolnville community is the oldest free black community in America founded after the Civil War.

40. St. Augustine's Fort Mosé community was the oldest free black community in North America.

41. Henry Flagler, a Standard Oil cofounder and antitrust codefendant, dredged most of the remains of Fort Mosé and used it as fill under what is now St. Augustine City Hall and Flagler College.

42. Lincolnville was founded by freed slaves in 1866.

43. Lincolnville has numerous historic structures and places, including churches where Rev. Dr. Martin Luther King, Jr. prayed and spoke and in houses where he stayed during 1964.

44. For centuries, Respondents' preferred dumping location was in Lincolnville and West Augustine -- both African-American and low-income communities.

45. The extent and history of the dumping are poorly documented and described in the Consent Order, which does not provide a sound basis for FDEP decisionmaking.

46. No epidemiological or health studies have been published for these communities or for the 157 dumps that JOHN REGAN asserts exist in St. Johns County.

47. Respondents' de facto and/or de jure discriminatory disposal practice was "Place in Blacks' Back Yards," or "PIBBY"

48. Respondents illegally used and maintained an enormous mound on the south side of Lincolnville, used for decades by the CITY OF ST. AUGUSTINE as a dump for disposal.

49. The Consent Order does not address or enumerate what was or may have been dumped on the Riberia Street site, which included industrial boat-making paint, solvent waste, coal pile runoff, incinerator waste containing dioxin and furans, solid and human waste (sludge) from septic tank service companies (a/k/a "honey wagons.").

50. The Respondent CITY OF ST. AUGUSTINE has never remedied its pollution at the South side of Lincolnville.

51. On its western side, Lincolnville is lined by boatyards along the Sebastian River, traditionally the source of pollution from paint and volatile organic compounds (VOCs).

52. Lincolnville is directly under the plume of the Luhrs boatbuilding industrial plant, which has reported to EPA emitting as much or more than 50 tons of volatile organic compounds (VOCs) annually.

53. Many African-Americans work in the Luhrs plant, breathing VOC fumes.

54. Lincolnville is east of Maria Sanchez Lake, into which unknown quantities of heavy metals may have been dumped by a former newspaper printing building and illegal dumping into the artificial “lake” (created by dredging and fill by Henry Flagler, which include parts of historic Fort Mosé, an African-American fort).

55. The EJ community of Lincolnville was south of the Atlanta Gas Light (AGL) coal-to-gas plant that was remedied as part of the Sebastian Inner Harbor Project.

56. Lincolnville and West Augustine are Environmental Justice Communities that have never been treated as such by EPA, the State of Florida or the CITY OF ST. AUGUSTINE.

57. Some sixteen years after the Environmental Justice movement began, the first Federal or State official has not yet stood up and identified himself/herself at a public meeting and offered to answer questions.

58. Low-income and minority residents have been unequally attacked with waste disposal for decades and require sensitivity and protection by the Administrative Law Judge.

59. From this day forward in environmental and land use decisionmaking, Lincolnville's and West Augustine's concerns must be respected and not neglected.

60. Never again must the communities be blindsided by unjust attitudes and legal interpretations.

61. St. Augustine was named for Saint Augustine of Hippo, who said, "An unjust law is no law at all."

62. History and the elders of Lincolnville and West Augustine teach that property values and community morale will suffer if thousands of truckloads of illegally dumped materials are now returned to Lincolnville (or kept in the Old City Reservoir), where they should never have been from the beginning.

63. The return of the contaminated materials would set a dangerous precedent for allowing an historic EJ community to be trashed for the sake of expediency, after secret meetings between City and state officials, without considering the needs of the community.

64. St. Augustine's worldwide image and reputation would continue to suffer by polluting an African-American community to "save money" on cleanup costs.

65. The 450th anniversary of St. Augustine (2015) and of Florida (2013) would be adversely affected by the colossal error of sending waste back to Lincolnville over the community's express objections.

INTENTIONAL ILLEGAL DUMPING IN OLD CITY RESERVOIR WITHOUT PERMITS OR CONSULTING THE CITY'S ENVIRONMENTAL COUNSEL, WILLIAM PENCE AND AKERMAN SENTERFITT.

66. The CITY OF ST. AUGUSTINE's illegal dumping was intentional and not a "mistake."

67. The CITY OF ST. AUGUSTINE wrongfully withheld from Dr. Dwight Hines, Ph.D. documents relating to truck hauling, including trucks hauling the illegally dumped materials.

68. The CITY OF ST. AUGUSTINE filed in a state court at least one materially false and misleading affidavit in response to Dr. Hines' litigation.

69. The Mayor and Commissioners City of St. Augustine threatened Dr. Hines with "sanctions" for seeking documents it claimed did not exist.

70. The CITY OF ST. AUGUSTINE produced 45 pounds of documents it claimed did not exist, and many more on computer disk.

71. The CITY OF ST. AUGUSTINE claimed to Dr. Hines that it was unable to printout information on its city computer systems relating to trucks involved in the illegal dumping.

72. The CITY OF ST. AUGUSTINE has dishonored its settlement agreement, in which it promised Dr. Hines that it would provide electronic documents.

73. Rev. Dr. Martin Luther King, Jr. said in 1964 that the CITY OF ST. AUGUSTINE was the "most lawless" city in America.

74. The CITY OF ST. AUGUSTINE, by and through City Manager WILLIAM B. HARRISS, was in a "hurry" to complete remediation, e.g., artificial wetlands, required as a precursor for the Sebastian Inner Harbor Project, for which the City was paid $3.5 million by speculators/developers.

75. The CITY OF ST. AUGUSTINE was in such a "hurry" to complete the artificial wetland that it did not secure proper St. Johns River Water Management District or FDEP permits.

76. The CITY OF ST. AUGUSTINE did not ask Mr. William Pence, partner in AKERMAN SENTERIFITT, whether it was legal.

77. JOHN REGAN admits that if the city had contacted Mr. Pence, it would have cost $75 and the City would have learned that the dumping was illegal.

78. Competent St. Johns River Water Management District (SJRWMD) government officials ordered the CITY OF ST. AUGUSTINE verbally (December 2005) and by certified letter (January 2006) that it must not dump in the Old City Reservoir.

79. Respondent CITY OF ST. AUGUSTINE dumped in the Old City Reservoir anyway, despite receiving unambiguous orders.

80. CITY OF ST. AUGUSTINE City Manager WILLIAM B. HARRISS authorized the spending of $200,000 for the illegal dumping in the Old City Reservoir for the express purpose of saving money and to "hurry" the Sebastian Inner Harbor Project.

81. The Respondent CITY OF ST. AUGUSTINE and City Manager WILLIAM B. HARRISS had untrained truck drivers drive unlined trucks without GPS monitoring and no guarantee as to where the contaminants were dumped.

82. As of today, the Sebastian Inner Harbor Project remains a controversial White Elephant which remains dormant, having taken longer than it took to build the Pentagon to remain flat.

83. City Manager WILLIAM B. HARRISS misled then-Mayor GEORGE GARDNER, whom HARRISS told he was dumping "clean fill."

84. Under environmental law, "there are no bedsprings in clean fill," as EPA Region 4 regulator John Marler has stated.

85. Nor is there human sludge, toilets, arsenic, thallium, volatile organic compounds or vinyl chloride in "clean fill."

86. City Manager WILLIAM B. HARRISS well knew that permits were required.

87. Mr. HARRISS stated after the dumping took place that he "would" get a permit.

88. It is unknown which other City Commissioners or public officials Mr. HARRISS may have misled, e.g., by telling them he was dumping "clean fill" into the Old City Reservoir
.
89. City Manager HARRISS and Respondent CITY OF ST. AUGUSTINE continued illegally dumping at the Old City Reservoir two (2) days after the EPA/CID and FDEP criminal investigators arrived.

90. Respondents continued dumping two (2) days after the City's dumping was reported to the St. Augustine City Commission at its February 27, 2007 meeting.

91. This March 1, 2006, dumping after criminal investigators arrived further shows criminal intent -- this was not a “mistake.”

92. FDEP investigator, Mr. Brian Durden, photographed the City's illegal dumping on March 1, 2006.

93. The CITY OF ST. AUGUSTINE had no good faith basis to dump without a permit, after being told it could not dump without permits, and after Federal and Sstate criminal investigators arrived.

94. The Respondent CITY OF ST. AUGUSTINE committed environmental crimes, by and through its City Manager, WILLIAM B. HARRISS.

95. These environmental crimes all took place after widespread publicity to illegal dumping by the government of Clay County, Florida.

96. City Commissioners are guilty of "willful blindness," ignoring information that placed them on notice that illegal dumping had taken place.

97. City Commissioners, including Mayor GEORGE GARDNER, promised answers to questions commencing February 27, 2006, which have still not been provided.

98. WILLIAM B. HARRISS proclaimed November 13, 2007, that he did "nothing wrong," earlier telling a newspaper reporter for the St. Augustine Record that two "incompetent" Professional Engineers in the city were responsible for giving him incorrect legal advice.

99. Mr. HARRISS “scapegoated” the two Professional Engineers, who were not lawyers.

100. The two professional engineers in quo are Messrs. ROBERT LEETCH, P.E. (formerly Utilities Director) and WILLIAM HARDING, P.E. (formerly Public Works Director). Both are essential witnesses entitled to a clear public record and to clear their name from Mr. HARRISS' newspaper attack, which was but a desperate effort to save his own job by avoiding personal responsibility for his own actions.

101. The City's longtime City Attorney, Mr. JAMES PATRICK WILSON, has information pertinent to this case and must be heard as a witness at trial.

102. AKERMAN SENTERFITT lawyer, WILLIAM PENCE, is a percipient witness to the fact that the CITY OF ST. AUGUSTINE never contacted him prior to dumping contaminants in the Old City Reservoir.

103. The current City Attorney, Mr. RONALD BROWN, has information pertinent to this case and must be heard as a witness at trial.

104. There is no attorney-client or work product privilege applicable under federal precedents and as Blackstone said, "the law is entitled to every person's evidence."

105. Assistant City Manager JOHN REGAN apologized at the December 13, 2007, community meeting for the City's illegal dumping. The apology binds the city and is a declaration against interest and party opponent admission admissible in this or future precedings as a full admission of liability for response costs.

106. No such apology has yet been made by City Commissioners or City Manager WILLIAM B. HARRISS.

CITY'S INTENTIONAL DUMPING REQUIRES
STRUCTURAL-FUNCTIONAL REMEDIES.


107. Under our "strong city manager" form of government, Mr. HARRISS directed the illegal dumping, which continued after the criminal investigators arrived.

108. No office, person or organization dared disagree with Mr. HARRISS.

109. No city office or employee has the title "environmental," just as no county office has the title "environmental." The government of St. Augustine is anti-environmental, having approved forgiveness of a $15,000 tree-killing fine outside the ordinary course of business and routinely allowing speculators and developers to commit other crimes against nature, including the willful destruction of Red House Bluff, a 3000-4000 year old indigenous Native American village.

110. Mr. HARRISS and the Respondent City of St. Augustine did not cooperate with FDEP's investigation.

111. City records suggest that for at least a time in 2006, FDEP may not have been allowed at the Old City Reservoir site, and a search warrant was either discussed or obtained by FDEP.

112. Subpoenas may have been required in order for FDEP to visit the site or obtain some truck records.

113. There may have been one or more obstructions of justice by the RESPONDENT, CITY OF ST. AUGUSTINE.

114. City Commissioners voted 5-0 to give Mr. HARRISS a plaque and an award in the midst of FDEP's criminal investigation, publicly stating their "confidence" in HARRISS.

115. At a time when FDEP was investigating, and the City's environmental lawyer was conducting employee interviews, this gratuitous award to Mr. HARRISS. an intentional wrongdoer, rocked the ability of COSA’s outside counsel and FDEP to obtain cooperation from city employees.

116. The Administrative Law Judge is respectfully requested to find that the award was an obstruction of justice and to refer this matter to the United States Attorney and Federal Bureau of Investigation for possible criminal prosecution.

117. Giving an award to CITY MANAGER WILLIAM HARRISS and expressing City Commissioners’ full “confidence” in HARRISS in the midst of a pending environmental crimes investigation had deleterious effects on the ability of the public to learn the truth and the ability of civil and criminal investigators to do their job and obtain cooperation from City employees and contractor employees.

118. The CITY OF ST. AUGUSTINE's $50 million, 350-employee city government committed environmental crimes in secret.

119. This secrecy festered for decades due to COSA’s flawed, authoritarian, hierarchical management structure (strong City Manager by charter).

120. This structure is exacerbated by:
a. lack of effective oversight by City Commissioners,
b. lack of internal controls; and
c. lack of any protection for City employee whistleblower rights.

121. It must be the purpose of the Consent Order to remedy the violations and the root causes that led to them.

122. The CITY OF ST. AUGUSTINE is a place that Rev. Dr. Martin Luther King, Jr. called the "most lawless" city in America.

123. The CITY OF ST. AUGUSTINE has a long custom, usage, practice and procedure of violating the rights of African-American and low-income residents and violating citizens' free speech rights, as demonstrated by federal court decisions.

124. The Consent Order was adopted without any community or civil rights group whatever being involved, violating Title VI of the 1964 Civil Rights Act.

125. Meetings were held between the CITY OF ST. AUGUSTINE and FDEP on more than one occasion, with the public not notified of such meetings.

126. These meetings resulted in changing FDEP's order from removal from the Old City Reservoir to a Class 1 landfill to an order to remove the waste to Lincolnville.

127. This secrecy discriminated against African-American and low-income residents of Lincolnville and West Augustine, who were not represented by either FDEP or the CITY OF ST. AUGUSTINE.

128. In contrast, FDEP refused to speak at the December 13, 2007 Stop the Dump meeting because there was not one week’s notice in the Florida Administrative Weekly.

129. The Consent Order is a stench in the nostrils of the Nation and must be rejected.

130. There is a large discrepancy -- 75% between the past and the present estimates of the volume of illegal dumped materials.

131. There is no discussion in the Consent Order of how much of the 35,000 cubic yards was actually moved by the city in 2005-2006.

132. The amount of material was previously estimated at 20,000 cubic yards and is now stated to be 35,000 cubic yards.

133. A hearing is required to determine the extent to which the discrepancy is due to prior dumping at the Old City Reservoir.

134. There is no environmental impact analysis or traffic engineering study on the effects of trucking 35,000 cubic yards of contaminants -- putting volatile organic compounds, vinyl chloride, thallium and arsenic - onto the streets of Lincolnville.

135. There is no laboratory work by EPA, but only by contractor laboratories purporting to meet EPA standards, which were selected by the Respondent's defense lawyers at AKERMAN, SENTERFITT, Florida's largest corporate law firm.

136. Such data can be unreliable and our CITY OF ST. AUGUSTINE now concedes that it must be verified -- per Assistant City Manager JOHN REGAN at the December 13th “Stop the Dump” meeting, our City has agreed to "split samples," which must be taken by the EPA SESD laboratory in Athens, Georgia, maintaining the chain of custody.

LACK OF STUDY OF TRUCK EMISSIONS
137. There is an unverified assumption of small health effects without studying the most likely exposure pathway -- trucking of contaminants twice through Lincolnville in trucks, with inadequate standards set for the trucks.

138. There is no reference to EPA's 2007 research findings on toxic diesel exhausts.

FAILURE TO TEST LINCOLNVILLE AND WEST AUGUSTINE
PROPERTIES AND RESIDENTS


139. There is no evidence of testing of Lincolnville and West Augustine properties and residents.

QUESTIONS MUST BE ANSWERED UNDER OATH, AT LAST.

140. Dozens of questions have been unanswered by the city since February 2006.

141. The CITY OF ST. AUGUSTINE had a hostile attitude toward public questions from the start. See Petitioners’ Exhibit PX-2, the February 27, 2007 E-mail from ASSISTANT CITY MANAGER JOHN REGAN to City of ST. AUGUSTINE PUBLIC AFFAIRS MANAGER PAUL WILLIAMSON, inter alia using pejoratives about questions being asked on COSA’s illegal dumping..

RESERVATION OF RIGHTS TO STRICT PROOF

142. Petitioners reserve the right to insist on strict proof of the Consent Order contentions, including any inference or implication that:
a. The CITY OF ST. AUGUSTINE supposedly acted in good faith before being caught February 27, 2006 when FDEP’s initial fine was based on lack of good faith;
b. The engineering investigation was somehow independent or adequate;
c. Our state and federal governments acted reasonably and adequately performed their duties; or
d. The proposed remedy in the Consent Order adequately protects the people of St. Augustine and Florida from future recurrences of intentional government pollution of our aquifer and communities.

143. Sworn testimony under oath before an ALJ is required to resolve questions that have not been answered sine February 2006.

(f) THE CONSENT ORDER IS ILLEGAL, ULTRA VIRES AND VOID.

144. The CITY OF ST. AUGUSTINE violated the U.S. and Florida Constitution and Sunshine law when it voted to adopt the Consent Order without allowing the public to speak at the 8 AM City Commission meeting held on November 13, 2007.

145. FDEP's Consent Order was adopted after months of delay by the CITY OF ST. AUGUSTINE, during a time when it refused to answer any questions. See Petitioners’ Exhibit PX-2.

146. The self-confessed principle purpose of the Consent Order is to "save money," as announced by Assistant City Manager JOHN REGAN -- not to right a wrong.

147. The Consent Order and Respondents violates free speech rights, violating the First, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution and due process rights and Florida's Sunshine Law.

148. The City's adoption of the Consent Order was an ultra vires act and void or voidable by the Administrative Law Judge.

149. Efforts to express public opinion on the Consent Order were rudely rebuffed, rejected and refused by City Commissioners and Mayor JOSEPH LEROY BOLES, JR., despite the City’s published promise to St. Augustine Record Opinion Editor Ms. Margo Pope that the public could speak.

150. Assistant City Manager JOHN. REGAN’s promise of public participation at the November 13, 2007 Commission meeting was duly published in a November 11, 2007 editorial in the St. Augustine Record.

151. Previous CITY OF ST. AUGUSTINE decisions on environmental cleanups have involved public meetings and a right of the public to speak.

152. Two recent projects where the public was allowed to speak before remedies were approved include:
a. the Sebastian Inland Harbor Project (where AKERMAN SENTERFITT represented the CITY OF ST. AUGUSTINE);
b. the former Ponce de León Golf Course, including its annexation and its being afforded brownfield status under Florida law.

153. Title VI of the 1964 Civil Rights Act and Environmental justice principles were violated when FDEP and COSA adopted a Consent Order in secret negotiations, without allowing the public to speak on this vital issue before approving the Consent Order.

154. FDEP and COSA have not taken steps to avoid the "disproportionate siting of hazardous waste facilities" in the majority "minority and low-income" Lincolnville community, an historically African-American community that dates back to the 1860s, when it was founded by freed slaves.

155. FDEP and COSA have not implemented principles of environmental justice (EJ) in this case.

156. Assistant CITY OF ST. AUGUSTINE CITY MANAGER JOHN REGAN now admits that COSA’s proposed “remedy” – moving the contaminants back to Lincolnville – seems “a little bizarre.” See Mr. REGAN’s December 13, 2007 statement to Stop the Dump meeting, which was videotaped and transcribed by a court reporter.

157. No presumption of correctness can be afforded to a Consent Decree whose principle feature is admittedly “bizarre” and which was adopted in violation of the U.S and Florida Constitutions and the Florida Sunshine Law.

158. Your Petitioners agree that returning the contaminants to Lincolnville is “bizarre.”

159. Neither the CITY OF ST. AUGUSTINE nor the FDEP should undertake to return any contaminants to an Environmental Justice community.

160. The contaminants in the Old City Reservoir must be removed immediately and placed in a Class I landfill, despite the City’s refusal to do so since ordered to do so in March 2006. See PX-1 at ¶ 4.

(g) COMPLETE RECORD AND FULL REMEDIES ARE REQUIRED.

161. The Administrative Law Judge is asked to order Respondents CITY OF ST. AUGUSTINE, City Manager WILLIAM B. HARRISS, Assistant City Manager JOHN REGAN, Chief Administrative Officer TIMOTHY BURCHFIELD, MAYOR JOSEPH LEROY BOLES, EX-MAYOR GEORGE GARDNER, EX-VICE-MAYOR SUSAN BURK , VICE MAYOR DONALD CRICHLOW, COMMISSIONER ERROL JONES and other percipient witnesses to testify in Petitioners’ case-in-chief as adverse witnesses.

162. The ALJ and FDEP must order broader and deeper remedies than were adopted by FDEP and COSA in their secret meetings, including but not limited to:
a. Requiring COSA immediately commence removing the solid waste from the Old City Reservoir to a Class I landfill pending development of other remedies.
b. Rejecting the notion that the contaminants be relocated back to Lincolnville and requiring them to be placed in a proper landfill, as FDEP ordered March 15, 2006.
c. Requiring training of City employees in a stand-down on safety, health and environmental protection and whistleblower rights secured by federal environmental whistleblower laws.
d. Making findings of fact and conclusions of law regarding the CITY OF ST. AUGUSTINE's custom, usage, practice and procedure of locating dumpsites in low-income areas and its lack of candor with citizens and with federal and state officials.
e. Ordering In-Kind Prevention Projects (IPPs), Pollution Prevention Projects (PPPs) or Supplemental Environmental Projects (SEPs) to remedy past pollution in Lincolnville and West Augustine.
f. Remedying the City's impact on the Lincolnville and West Augustine communities by establishing a Community Health Program and Community Health Advisory Board, with peer-reviewed epidemiological studies of the effect of all dumping and pollution on Lincolnville and West Augustine. F.S. §§ 381.1013, 381.1015.
g. Remedying the City's massive environmental lawbreaking by mandating:
i. Grand jury testimony;
ii. Management reforms;
iii. Firing the City Manager and suing him (and/or others) to recover sums expended on the cleanup and associated professional fees for legal and engineering work;
iv. Rewriting job descriptions to provide protection under federal environmental whistleblower laws;
v. An affirmative direct duty to blow the whistle and stop illegal activities to be adopted by all city employees.
vi. Preserving, protecting and defending citizens' rights to:
(1) Report environmental crimes and violations;
(2) Speak at public meetings without being molested, harassed or intimidated by City officials;
(3) Require City officials to observe Environmental Justice principles.
h. Assuring transparency by, among other reforms requiring:
i. The City to post a performance bond for completion of the remedies required and to be forfeited in the event of violations.
ii. The City Manager, Mayor, Commissioner and all Department heads to post performance bonds, to be forfeited in the event of any violations.
iii. All environmental documents, including those relating to this action and the related criminal case to be posted upon the City's website in perpetuity.
iv. All trucks moving contaminants to be equipped with Global Positioning System (GPS) tracking devices, to be posted on the City's website.
v. Automatic 24/7 live web camera coverage of all activities at the Riberia Street site and whatever site that is finally chosen for disposal.
vi. Rigorous standards for training city employees and contractor employees, sealing the trucks and monitoring their effects.

163. Remedying the City's use of untrained workers to sort through 35,000 cubic yards of contaminated solid waste by requiring training and continuing medical monitoring of all workers so exposed to the 35,000 cubic yards of contaminants, subject of findings by FDEP but not part of the consent order.

164. Petitioners respectfully request immediate disclosure of all documents to Petitioners on the City's website and an expedited hearing, open to the public, to be held in the Lincolnville community, with an opportunity for the public to speak out and have questions answered on the issue, opportunities that were denied us for two years.

(h) PETITIONERS DECLINE TO AGREE TO MEDIATION AT THIS TIME.

165. Petitioners decline to agree to any form of mediation at this time, e.g., any form of “mediation” before anyone lacking independence.


Respectfully submitted,



JUDITH SERAPHIN


ANTHONY SERAPHIN
102 South Street
St. Augustine, Florida
(904) 829-0808


DIANE MILLS
GERALD MILLS
P.O. Box 3767
St. Augusitne, Florida 32085-3767


ED SLAVIN
Box 3084
St. Augustine, Florida 32085-3084
904-471-7023
904 471-9918 (fax)


DR. DWIGHT HINES, Ph.D..
150 Nesmith Avenue
St. Augustine, Florida 32084
904-829-1507


DAVID THUNDERSHIELD QUEEN
165 Twine Street
St. Augustine, Florida 32084
904-687-5959

PETITIONERS
December 27, 2007

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