1
1 STATE OF FLORIDA
2 DIVISION OF ADMINISTRATIVE HEARINGS
3 Case No. 08-0213
4 JUDITH AND ANTHONY SERAPHIN
5 Plaintiffs,
6 vs.
7 CITY OF ST. AUGUSTINE and
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
8 Defendants,
9 _______________________________________
10 TELEPHONIC HEARING BEFORE
11 J. LAWRENCE JOHNSTON, ADMINISTRATIVE LAW JUDGE
12 ****************************************************************
13 DATE TAKEN: Wednesday, February 13, 2008
14 PLACE TAKEN: 24 Cathedral Place
St. Augustine, Florida 32084
15
TIME: 2:00 - 2:55 P.m.
16
BEFORE: LAURA DWYER PIERLE, RPR
17 STENOGRAPHIC COURT REPORTER
AND NOTARY PUBLIC- STATE
18 OF FLORIDA AT LARGE
19
20
21 *********************************************************
22 ST. AUGUSTINE COURT REPORTERS
1510 NORTH PONCE DE LEON BOULEVARD, SUITE A
23 ST. AUGUSTINE, FLORIDA 32084
904-825-0570
24
25
2
1 APPEARANCES:
2 On behalf of the Plaintiffs:
JUDITH SERAPHIN, PRO SE
3 24 CATHEDRAL PLACE
ST. AUGUSTINE, FLORIDA 32084
4
5 On behalf of the DEPARTMENT OF ENVIRONMENTAL PROTECTION:
DEPARTMENT OF ENVIRONMENTAL PROTECTION
6 3900 COMMONWEALTH BOULEVARD
MAIL SLOP 36
7 TALLAHASSEE, FLORIDA 32399-3000
By: KAREN BISHOP, ESQUIRE
8
9 On behalf of the CITY OF ST. AUGUSTINE:
CITY OF ST. AUGUSTINE
10 POST OFFICE BOX 210
ST. AUGUSTINE, FLORIDA 32085
11 By: RONALD W. BROWN, ESQUIRE
12 AKERMAN, SENTERFITT & EDISON
420 SOUTH ORANGE AVENUE
13 SUITE 1200
ORLANDO, FLORIDA 32801-4904
14 BY: WILLIAM PENCE, ESQUIRE
15 INTERVENORS:
16 JOHN HAGARTY, ESQUIRE
DEBRA VALENTI-EPSTEIN, ESQUIRE
17
18 ALSO PRESENT:
19 DR. DWIGHT HINES
EDWARD SLAVIN
20 KATI BEXLEY, ST. AUGUSTINE RECORD
21 - - -
22
23
24
25
3
1 P R O C E E D I N G S
2 - - -
3 THE COURT: This is Johnston calling into the
4 conference. Could I ask, first of all, who is on
5 the line on behalf of DEP?
6 MS. BISHOP: Your Honor, this is Karen Bishop
7 representing the Department.
8 MS. SERAPHIN: Hello.
9 THE COURT: Okay.
10 This is -- someone just called in. I am
11 taking roll call right now. So just hold on for a
12 second.
13 MS. SERAPHIN: Okay.
14 THE COURT: Karen Bishop on behalf of DEP.
15 What about for the City of St. Augustine?
16 MR. PENCE: Your Honor, this is Bill Pence
17 and Ed Cole from Akerman, Senterfitt and Ron
18 Brown, City Attorney.
19 THE COURT: And are the Seraphins on the
20 line?
21 MS. SERAPHIN: Judith Seraphin is. Hello.
22 THE COURT: Okay. Are you expecting your
23 husband also on the line?
24 MS. SERAPHIN: No. My husband -- we are a
25 disaster company. And right now -- we are in
4
1 Arkansas, because the tornado took down the roof
2 of one of the hospitals, one of the few hospitals
3 here in the Ozark Mountain area where we are
4 working, and right now it's an emergency crew. So
5 he is working on that job.
6 THE COURT: Okay.
7 MS. SERAPHIN: So you won't hear from both of
8 us, just from me.
9 THE COURT: Okay.
10 Is there anybody else on the line?
11 MS. BEXLEY: I am Kati Bexley, from the
12 St. Augustine Record, newspaper in St. Augustine.
13 MS. VALENTI-EPSTEIN: Hello. This is Debra
14 Valenti-Epstein. I'm one of the intervenors.
15 THE COURT: Okay.
16 MR. HAGARTY: And, Your Honor, I'm John
17 Hagarty. I am another one of the intervenors.
18 THE COURT: Okay.
19 MR. SLAVIN: And, Your Honor, this is Ed
20 Slavin with Dwight Hines, two of the Petitioners,
21 and were are here in St. Augustine with the court
22 reporter.
23 THE COURT: Okay. Who else did you say was
24 there?
25 MR. SLAVIN: Dr. Dwight Hines and a court
5
1 reporter.
2 THE COURT: Okay. All right. Anybody else?
3 Okay. Well, I thought I was hoping that this
4 would be the best way to get the case started in
5 light of everything that has been filed already in
6 the case and also for purposes of scheduling the
7 hearing.
8 I note that the -- well, first of all, let me
9 say this. It is my understanding of what's
10 happened and it's not that clear to me, because
11 the file is lengthy and confusing already, but I
12 understand that what has happened in this case is
13 that a petition was filed by, among other people,
14 the Seraphins and Mr. Slavin and I think maybe
15 Dr. Hines may have been involved in that petition
16 as well. And DEP considered that and apparently
17 made a ruling that said that that only the
18 Seraphins had standing and dismissed as to the
19 others with leave to amend by January 15th.
20 I have recently seen some amended pleadings
21 on behalf of, I believe, Mr. Slavin and also
22 Dr. Hines and maybe someone else. But my
23 understanding would be that those pleadings would
24 be filed with DEP, not with DOAH, that the only
25 thing that's been referred to me is the Seraphins'
6
1 petition.
2 Does anybody have a different understanding
3 of that?
4 MS. BISHOP: Your Honor, that would be the
5 Department's intention in sending it over it only
6 applied to the Seraphins.
7 THE COURT: So what I am saying as to
8 Mr. Slavin and Mr. Hines, your amended filings, if
9 they are not too late, should be taken up with DEP
10 directly, not with me and DOAH at this point in
11 time.
12 All right. Now there was -- there were --
13 there was a petition to intervene that was filed
14 by Debra Valenti-Epstein and Mr. Hagarty, who are
15 on the line.
16 MS. VALENTI-EPSTEIN: That's correct.
17 THE COURT: And so I will ask at this point
18 is there any objection to those petitions -- that
19 petition to intervene by them?
20 MS. BISHOP: Your Honor, this is Karen Bishop
21 from the Department. I do object to the petition
22 and that it does not comply with the rule. It
23 does not state how the intervenors environmental
24 interests are affected by the consent order. And
25 it doesn't state any specific grounds on which you
7
1 can make that determination.
2 THE COURT: All right. What I am going to do
3 is give you an opportunity to make a filing to
4 that affect, but in the meantime I will grant
5 their right to participate in this hearing subject
6 to my ruling on whatever it is that you file.
7 MS. VALENTI-EPSTEIN: Thank you, Your Honor.
8 MR. HAGARTY: Your Honor, thank you from John
9 Hagarty. I may respectfully suggest, and I
10 believe that our petition to intervene states that
11 we live one block closer to Riberia Street than
12 the Seraphins.
13 THE COURT: Right.
14 MR. HAGARTY: And as a matter of right if the
15 Department's position is that the Seraphins have
16 standing we certainly have standing because we
17 live closer to the effective lane of travel of the
18 dump trucks.
19 THE COURT: Okay. Yes, I did notice that.
20 MR. HAGARTY: But we would be happy to
21 further amend our petition to state it more
22 specifically, but I do think the petition in and
23 of itself is self-explanatory and if the
24 Department has no objection to the standing of the
25 Seraphins, I do not see how in good faith they
8
1 could have objection to our petition to intervene.
2 THE COURT: I understand that. And they may
3 not file -- they may or may not actually file
4 something. But it would be -- so you are not
5 required to do anything right at this point in
6 time, only in response to if they file something
7 to dismiss your petition.
8 MR. HAGARTY: Thank you, Your Honor.
9 MS. VALENTI-EPSTEIN: Thank you.
10 THE COURT: Now, I just want to make sure --
11 or there has been a lot of things filed and a lot
12 of issues raised and there has been a motion, I
13 believe, to strike some of those issues that have
14 been raised or to dismiss the petition because of
15 the way it was filed, the way it was written and
16 some of the issues that are included in it. I
17 just want to make sure I have an understanding of
18 what -- hold on just a minute. I am going to
19 press the button to silence, do not disturb button
20 on my phone.
21 Okay. To continue, as I understand, this
22 involves a DEP consent order. And if I am
23 understanding correctly, and please correct me if
24 I am wrong about any of this, there is an old
25 landfill somewhere near St. Augustine, which I
9
1 have been told is, I have read, is near a place
2 called Lincolnville or West Augustine or something
3 words descriptions like that. It's on Riberia
4 Street.
5 MS. VALENTI-EPSTEIN: Your Honor, this is
6 Debra Valenti-Epstein. If I may, there are two
7 sites spoken of, one is the original landfill on
8 Riberia, Lincolnville and the other is West
9 St. Augustine, which is near the Old City
10 Reservoir is located. So there is two --
11 THE COURT: Is that Holmes Boulevard?
12 MS. VALENTI-EPSTEIN: That's correct, Your
13 Honor.
14 THE COURT: That's west?
15 MS. VALENTI-EPSTEIN: That's correct, Your
16 Honor. There is two locations because the stuff
17 was brought from one site to the other. That's
18 why there is two sites.
19 THE COURT: That's the Old --
20 MS. VALENTI-EPSTEIN: Right. From Riberia
21 Street to Holmes Boulevard, which is West
22 St. Augustine.
23 THE COURT: All right. Now the reason
24 materials was being transferred from Riberia to
25 Holmes is because there was the City had requested
10
1 and obtained a permit to create a wetland
2 mitigation site at that location; is that correct?
3 MS. VALENTI-EPSTEIN: I think we are all in
4 agreement on that, Your Honor.
5 THE COURT: And then what happened was that
6 some of the material that was being taken out of
7 that site in order to create that wetland
8 mitigation project was winding up at the Holmes
9 Boulevard site in the Old City Reservoir.
10 MS. VALENTI-EPSTEIN: That's correct. Along
11 with materials from other locations. Again, Debra
12 Valenti-Epstein. There was one location which
13 trash was being brought to Holmes Boulevard. One
14 of the sources was Riberia Street.
15 THE COURT: All right. That I wasn't aware
16 of three other sources.
17 MS. VALENTI-EPSTEIN: Yeah. Yard trash, lime
18 sludge and street sweeping from other locations
19 also.
20 THE COURT: Okay. Are all of those materials
21 violations or was it just the transfer from
22 Riberia?
23 MS. VALENTI-EPSTEIN: All of them were done
24 without any permit for dumping in West
25 St. Augustine, Your Honor.
11
1 THE COURT: Okay. And incidentally this
2 mitigation site permit, was that -- was that for
3 mitigation for another project of the City of
4 St. Augustine that was subject to DEP or some kind
5 of permitting, or was that just to create a
6 wetland that wasn't there before?
7 MR. PENCE: Your Honor, if I might, this is
8 Bill Pence. The City of St. Augustine is the
9 owner of a piece of property that is located
10 further north on Riberia Street. It was the site
11 of the Old St. Augustine Gasification Plant. The
12 City bought this property in the late 1980's for
13 the purpose of community redevelopment to try to
14 take an old industrial site and renovate the
15 neighborhood.
16 And it was discovered after they acquired
17 title to the property that there was contamination
18 on the property associated with the Old
19 Manufacturer Gas Plant. The City's plan for that
20 property was to develop it into a marina and a
21 mixed commercial, retail, residential project as
22 the new western gateway into the City of
23 St. Augustine.
24 In connection with the marina development on
25 that project, the City in the early 1990's applied
12
1 for a dredge and fill permit for the marina. The
2 dredge and fill permit for the marina had a
3 mitigation component of it. And the City owned
4 property on the southern tip of Riberia Street,
5 which is truly the southern end of the peninsula
6 of the main downtown area of St. Augustine. The
7 City's Waste Water Treatment Plant is located on
8 that southern tip. And this property was
9 immediately adjacent to the Waste Water Treatment
10 Plant.
11 The City identified a portion of that
12 property for the mitigation site, which is now in
13 these pleadings as the Riberia Street property.
14 Permit was issued by the DEP and the Corp of
15 Engineers for the construction of a mitigation
16 area along the shoreline of that property. And so
17 the mitigation work that was done on the Riberia
18 Street property was, in fact, done pursuant to a
19 permit issued by DEP and the Water Management and
20 the Corp of Engineers.
21 THE COURT: Where did the landfill come in
22 then?
23 MR. PENCE: Well, the mitigation area
24 included a portion of a former dump site. That
25 part of St. Augustine is a peninsula that over a
13
1 period of time was filled in. And it was used by
2 the local resident folks in that part of the City
3 as an area for dumping municipal waste. All of
4 that activity took place up to around the mid
5 '60's before landfills were permitted. And it is
6 now known within the regulatory community, these
7 sites are now former dump sites, they weren't
8 regulated landfills, and so they are unregulated,
9 at this point in time unregulated areas. There
10 are parks rules and guidance documents now that
11 provide that if you want to engage in any -- in
12 any development activities on these old dump
13 sites, that certain procedures are to be followed
14 and you have to consult with the Department before
15 disturbing materials on those old dump sites.
16 And the basic -- you know, to give you a
17 little factual background of what got us to the
18 consent order in this case. When the City started
19 the project, the mitigation project, they started
20 excavating an area that was set aside in the
21 permit for the mitigation. And they were
22 encountering debris and brick and tires and paper
23 and plastic and steel, but mostly soil, but there
24 was some solid waste materials that were
25 encountered as well. And the City was staging
14
1 this material initially at Riberia Street. They
2 screened the material and pulled out what they
3 thought was material that should go to a landfill,
4 the steel and the tires and the paper and the
5 plastic.
6 And then when they started running out of
7 space for staging the material on Riberia Street,
8 they hauled the material to an 80 acre parcel that
9 is owned by the City of St. Augustine that's
10 located in West Augustine in the area of West
11 St. Augustine, it is actually outside of the City
12 limits. And this 80 acre parcel is a piece of
13 industrial property that the City was using as a
14 staging area for C & D debris.
15 This area that is referred to by some of the
16 petitioners as the Old City Reservoir was, in
17 fact, a borrow pit that was mined for coquina.
18 The City had a permit from the Water Management
19 District to mine the borrow pit for coquina that
20 was used for roadway purposes within the City of
21 St. Augustine. And there were portions of the 80
22 acre track that the City also was bringing lime
23 sludge from its Water Treatment Plant and staging
24 that lime soil, lime sludge there, street
25 sweepings were brought to the property in another
15
1 area, and then the City was staging on one spot of
2 the property yard clearing debris when trees were
3 cut down and things like that, and they were
4 staged there until they had a big enough pile to
5 haul them off.
6 When complaints were -- when a complaint was
7 filed by Mr. Slavin with DEP and the EPA that
8 prompted an investigation. The investigation
9 resulted in determinations by DEP that there were
10 some civil violations associated with the
11 placement of the material that came from Riberia
12 Street on to the Holmes Boulevard property and
13 ultimately placed in the borrow pit.
14 MR. HAGARTY: As well as others, just so it's
15 clear, as well as other violations with the other
16 three materials that were --
17 MR. PENCE: I just hadn't gotten to those.
18 MR. HAGARTY: Okay.
19 MR. PENCE: I was doing them piecemeal.
20 MR. HAGARTY: Very good. Thank you very
21 much.
22 MR. PENCE: The alleged violations were that
23 there was solid waste that was brought from
24 Riberia Street and placed into the borrow pit.
25 The other alleged violations were that the staging
16
1 area for the yard trash was done without a permit.
2 That permit just requires giving notice. We did
3 give notice after the enforcement action was
4 filed.
5 The City was told they couldn't stage C and D
6 debris on the site even for a short period of
7 time, that was being staged for less than two
8 weeks.
9 And the City was told that the placement of
10 lime sludge on the property and yard trash was a
11 violation of solid waste requirement. So the City
12 has removed yard trash.
13 But part of the comprehensive settlement of
14 those activities is the City's and DEP's
15 evidentiary consent order. The consent order
16 initially imposed some civil penalties for some of
17 the alleged violations and then required the City
18 to remove the material that was placed in the
19 borrow pit and return it to Riberia Street and
20 place it within the footprint of the existing
21 landfill.
22 The consent order also requires them to
23 recontour it and reimplement certain storm water
24 management issues. It requires some additional
25 sampling to be performed on the Holmes Boulevard
17
1 site. And it requires a ground water monitoring
2 plan to be implemented on the Riberia Street site
3 after the material is returned.
4 THE COURT: What material is that, the C and
5 D material?
6 MR. PENCE: It's the material that was
7 removed from Riberia Street in the first place and
8 placed in the borrow pit.
9 THE COURT: What about the lime sludge and
10 yard trash?
11 MR. PENCE: The lime sludge and the yard
12 trash have already been removed. Your Honor,
13 actually the yard trash we have a permit now from
14 the Department to use that site for yard trash.
15 THE COURT: Is the lime sludge part of what's
16 going back to Riberia or not?
17 MR. PENCE: No. No.
18 THE COURT: Okay.
19 MR. PENCE: The lime sludge is being
20 beneficially reused today with DEP's approval.
21 THE COURT: All right.
22 MS. VALENTI-EPSTEIN: Your Honor, if I may,
23 this is Debra Valenti-Epstein. Part of our
24 problem -- part of our problem with this issue is
25 DEP never had independent verification of these
18
1 materials were deposited separately, kept separate
2 and they weren't all being brought back to Riberia
3 Street. The DEP has not independently verified
4 any of that information.
5 MR. PENCE: I think, Your Honor, all though
6 that's not an issue for the consent order, but
7 before we could execute the consent order the
8 Department was, in fact, satisfied that that was
9 done.
10 MS. VALENTI-EPSTEIN: We were --
11 THE COURT: Let me say this. This really
12 leads up to -- thank you. I appreciate the
13 explanation. It was roughly what I understood
14 with some additions and corrections and better
15 said than I would have tried to say it.
16 But that leads me to the point of -- it does
17 confirm my understanding that what this case is is
18 a challenge to the consent order. And based on my
19 understanding from what I have done -- I have been
20 involved with in the past, and also in reading
21 some of the -- going back and reading some of the
22 DEP final orders in this situation, it is my
23 understanding that the issue before me in this
24 proceeding is whether DEP abused its enforcement
25 discretion in agreeing to the terms of the consent
19
1 order. That's what's in front of me --
2 MS. VALENTI-EPSTEIN: That's correct.
3 THE COURT: -- in this case. So if your
4 concern is that they are not really doing what the
5 consent order says they should do, that would be
6 yet another enforcement proceeding, not part of
7 this challenge.
8 And it also leads me to, without going into
9 detail, because I can't do -- I'm not in a
10 position to do that right now, but a lot of what's
11 been put in the petition that was filed probably
12 is outside of the scope of this proceeding,
13 because it's limited, as I say, to whether DEP
14 entering into this consent order abused its -- its
15 enforcement discretion. That's what the case is
16 going to be about.
17 So probably I will enter some kind of an
18 order that will describe that -- some of the
19 issues that are raised in the petition would not
20 be considered in this seating. And it may be that
21 I would be going along with the suggestion by
22 whoever filed it, I think maybe possibly DEP and
23 the City, that it would be a good idea to file an
24 amended petition, which is more narrowly focused
25 and is in more compliance with our rules of filing
20
1 petitions.
2 Incidentally, in that regard, I don't -- have
3 the Seraphins received a copy of the information
4 booklet that DOAH puts out on representing
5 yourself in front of DOAH?
6 MS. SERAPHIN: No, we have not, Your Honor.
7 THE COURT: You have not. Okay. And there
8 is -- probably -- do you have internet access?
9 MS. SERAPHIN: I can.
10 THE COURT: Maybe not at the moment.
11 MS. HASKIN: At some point of the mountains I
12 can get to in my car I can pick up internet
13 access. It's pretty rural up here.
14 THE COURT: Okay. DOAH has a website and on
15 the website you can find the DOAH Rules of
16 Procedure and also some information on how you
17 represent yourself in front of DOAH.
18 MS. SERAPHIN: Yes, I do, Your Honor.
19 THE COURT: It also gives information about
20 options of being represented by an attorney or
21 qualified representative if you are interested in
22 that.
23 MS. SERAPHIN: Thank you.
24 THE COURT: So that -- reference that, you
25 know, before you file your amended petition.
21
1 MS. SERAPHIN: Okay.
2 THE COURT: The other -- okay. The next --
3 you can add to this after I get finished, but the
4 next thing that I think is at issue then is the
5 discovery that's apparently been filed and then
6 there has been motions for protective order in
7 part because I hadn't ruled on the motions to
8 dismiss, etc..
9 Having heard what I have had to say about the
10 scope of the proceedings, is there -- is there
11 still opposition at this point in time to the
12 discovery -- the responding to the discovery
13 that's been requested?
14 MS. BISHOP: Your Honor, this is Karen Bishop
15 from the Department. I mean, the issue that I
16 have was that, first of all, many of the issues
17 relate to issues that are outside of the scope of
18 proceeding and also that there are -- they exceed
19 the number allowed by the Rules of Civil
20 Procedure. That was the basis of my objection and
21 still is the basis for my objection.
22 THE COURT: Okay.
23 MR. PENCE: Your Honor, the City would join
24 in those objections and having expressed some more
25 objections.
22
1 I might also point out a matter that may moot
2 this issue for you at this point in time, bring
3 you up to speed with where the City and the
4 Department are with respect to the consent order
5 that's at issue here.
6 The City and the Department attended a public
7 meeting several weeks ago, which was a follow-up
8 to an earlier public meeting that was held in
9 December on the issue of the consent order. And
10 as a result of those public meetings, the City and
11 DEP have engaged in discussions on other options
12 that may be available with respect to the
13 management of this material rather than returning
14 it to Riberia Street.
15 As a result of those discussions, the City
16 and the Department have reached a tentative
17 agreement that the material can be removed and
18 taken to the Nassau County Landfill as daily
19 cover. And we are in the process right now of
20 working out the specifics of that option,
21 including revising the removal and relocation plan
22 that was approved by the Department in the
23 original consent order.
24 We contemplate that all of this will be
25 completed within the next 60 days. And that the
23
1 net result of all of that will be for the
2 Department to withdraw -- the Department and the
3 City to agree on the withdrawal of the consent
4 order, which is the subject matter of this
5 proceeding, and the entry of a separate consent
6 order that would provide for the removal of the
7 material from Holmes Boulevard and taking it to
8 the Nassau County Landfill.
9 And based upon our efforts to complete those
10 negotiations and our good faith belief that at
11 this time that we will be able to accomplish that
12 within the next 60 days, the City and the
13 Department jointly request a stay of these
14 proceedings, permit us to affect that amended
15 remedy.
16 MS. VALENTI-EPSTEIN: Your Honor, this is
17 Debra Valenti-Epstein. I just have one brief
18 comment, if I may, Your Honor. There is no motion
19 before Your Honor for this type of request.
20 If what Mr. Pence is suggesting is that they
21 intend to abandon consent order and enter a new
22 one, that's also not before this court at this
23 time. This is unsworn testimony negotiations
24 which Petitioners, again, have been excluded.
25 THE COURT: Well, it's an ore tenus motion, I
24
1 believe. I guess you may want to follow up with a
2 written motion, Mr. Pence. But I did just want to
3 ask what your response to it is. It seems to me
4 like if it goes forward it would resolve your --
5 go a long way at least resolving the issue.
6 MS. SERAPHIN: Your Honor, may I speak to
7 this issue, sir.
8 THE COURT: Go ahead.
9 MS. SERAPHIN: This is Judith Seraphin. I
10 heard loud and clear what you said. And I wanted
11 to make two comments.
12 One, the public meetings that were held were
13 held by the neighborhood because the neighborhood
14 is so upset over this. The City did not -- the
15 City did attend both meetings. DEP did attend the
16 second meeting officially. But these meetings
17 were forced by the neighborhood, they weren't
18 offered by the City. The only reason the City is
19 even speaking to us now is because the City
20 realized that they are in a very awkward position.
21 THE COURT: Okay.
22 MS. SERAPHIN: We asked at the end of the
23 second meeting to be involved in all meetings
24 between DEP and the City and that has not
25 happened. The City and the DEP have continued
25
1 having their own meetings without informing the
2 neighbors who are directly involved. And we would
3 have had one representative there, possibly two,
4 but we were never even told about the meetings.
5 And this is way the neighborhood tends to be
6 treated.
7 The other thing I want you to also realize is
8 I heard Mr. Pence talk about the scope of the
9 trash at Riberia Street. And he mentioned that
10 it's long been a dump yard and it's used by the
11 local residents. But he did forgot one very
12 important thing, yes, it has been used by the
13 local residents, but it's also been used by the
14 commercial boat building yard and many other
15 marine based businesses that are located on
16 Riberia.
17 So this dump yard, this area has a long
18 history of items being put in by heavily polluting
19 boat yards. The worry in the neighborhood is we
20 don't know what's in there. And we want to find
21 out what's in there. What's in, first of all, the
22 material that went to Holmes Boulevard and the
23 material that remains in Riberia Street. And by
24 excluding the neighborhood and any representatives
25 out of any conversations from DEP and the City, it
26
1 just intensifies some of the paranoia.
2 MR. HAGARTY: Your Honor, if I might, John
3 Hagarty. That segue has been to and back to
4 Mr. Pence's oral motion today that, and apparently
5 I did not hear Ms. Bishop say anything to the
6 contrary, that the DEP and the City are in
7 negotiations to withdraw the existing consent
8 order. And I have a couple of comments regarding
9 that.
10 I do think Your Honor's thought is
11 well-taken, if that's the City's position and
12 DEP's position it should be formalized in a motion
13 so that we can all see it in writing.
14 And, secondly, that would trigger prevailing
15 party fees. And I suggest to every one here that
16 in the event that that is the City's position and
17 DEP's position, that essentially puts the
18 petitioner and/or petitioners in a position of
19 prevailing parties and we would in turn be filing
20 requests with the court for other parties fees.
21 And, thirdly, my last point is this, at this
22 point this is simply a bureau suggestion, and at
23 the same time a request for a stay of all
24 discovery. Unless and until the court has before
25 it a formal motion requesting that the consent
27
1 decree be withdrawn, we would ask the court to at
2 least defer any ruling on a stay of discovery and
3 as suggested to the court to perhaps if that is
4 the City's position and DEP's position, that they
5 file a formal motion to withdraw the consent
6 agreement within 10 days so that this litigation
7 doesn't become unduly stalled or delayed.
8 MR. PENCE: Your Honor, if I may, please,
9 this is Bill Pence. And I am sure Mr. Hagarty and
10 Ms. Valenti-Epstein, who I believe both are
11 lawyers, understand Rule 28-106.204 paren 1,
12 expressly provides for motions to be made before
13 the administrative hearing officer. We haven't
14 formalized this motion yet. If you think that it
15 needs to be formalized we can. But you have both
16 parties before you that are joining in the motion
17 and we are both prepared to represent to you that
18 we in good faith, that we will resolve this
19 dispute in a manner that at least be between the
20 Department and the City will result in the
21 withdrawal of the consent order, which is the
22 subject matter of these proceedings.
23 THE COURT: Why don't we do this, there is no
24 reason why you can't make the motion orally as you
25 have. However, the others may not be, you know,
28
1 prepared instantaneously to respond to it.
2 However, in this case it does bear on something
3 else that is before me, you know, today and, that
4 is, scheduling a final hearing or whether to
5 schedule a final hearing.
6 And what I would propose, if what Mr. Hagarty
7 is requesting is that it be put in writing, why
8 don't you all just -- why don't you do that and
9 also put in the motion to stay the proceedings,
10 that you've discussed it with the other parties,
11 the Seraphins and Ms. Valenti-Epstein and
12 Mr. Hagarty, and state what their position is and
13 at that point I'll -- it will either be something
14 that they would agree to or I would rule on it in
15 due course after I receive the motion.
16 Meantime -- and, as I say, it makes -- it
17 makes sense to me if that's the direction that
18 it's heading in that all parties would agree to
19 it.
20 MS. SERAPHIN: Your Honor, if I might add.
21 THE COURT: I would also say in terms of
22 scheduling a hearing, there has been a request for
23 a hearing to be scheduled March 10th. That's not
24 going to happen. It's not available on my
25 calendar. So I know there is not going to be any
29
1 hearing scheduled actually before, based on my
2 calendar, probably before the week of April 28.
3 So do you want at this point to go forward
4 with scheduling a final hearing or do you want to
5 wait and see how the motion that Mr. Pence is
6 making falls out?
7 MR. HAGARTY: Just as a matter -- this is
8 John Hagarty, again. As a matter or orderly
9 administration, Your Honor, I might respectfully
10 request why don't we schedule a final hearing now,
11 that is always added benefit for all the parties
12 to turn their full attention to this matter.
13 THE COURT: Okay. How lengthy of a hearing
14 do you think it will be?
15 MS. BISHOP: Your Honor, it's the
16 Department's position that we would not need more
17 than two days.
18 MR. PENCE: The City concurs with that, Your
19 Honor.
20 THE COURT: Total or just for your two?
21 MS. BISHOP: Total.
22 MR. PENCE: Total.
23 MS. VALENTI-EPSTEIN: Your Honor, this is
24 Debra Valenti-Epstein. Depending on discovery
25 we've been unable to get from the City and from
30
1 DEP this could take longer. We haven't yet
2 received discovery we've requested.
3 MS. BISHOP: Your Honor, if I may, this goes
4 back to the issue of what is at DOAH and what is
5 before DOAH. And what is before DOAH is whether
6 the consent order is reasonable. And the
7 particular allegations the Seraphins have raised
8 is that the trucks taking the waste back to
9 Riberia Street are effecting their environmental
10 interest. That's the only thing that's before the
11 court.
12 MS. VALENTI-EPSTEIN: That's correct, Your
13 Honor. This is Debra Valenti-Epstein. There is
14 one item for the other consent agreement that is
15 relevant here. DEP has never conducted any
16 independent testing of the toxicity of the
17 material removed from the Riberia Street Landfill,
18 nor have they done any independent testing of
19 toxicity of these materials intended to return to
20 Riberia Street, and that's part of the discovery
21 request.
22 DEP is relying entirely on the lab that's
23 picked by the City and by Mr. Pence.
24 MS. BISHOP: Your Honor, if I may, there is
25 no legal requirement that the Department do its
31
1 own testing.
2 THE COURT: Well --
3 MR. PENCE: I am assuming that, Your Honor,
4 DEP did do its testing and the petitioners are
5 aware of that.
6 MS. VALENTI-EPSTEIN: Your Honor, DEP said at
7 the January 10th public meeting they did not do
8 testing. And that the only testing that was done
9 was a few split samples given to them by the lab
10 that Mr. Pence choose and was part of the criminal
11 investigation by DEP and the DEP person that
12 entered into the consent agreement did not have
13 access to those results and those findings.
14 MR. PENCE: Those results --
15 MS. VALENTI-EPSTEIN: And did not do its
16 independent testing.
17 MR. PENCE: The results from the criminal
18 investigation were recently circulated to the
19 parties made available by FDEP.
20 But, in any event, Your Honor, getting back
21 to the issue of the motion for the stay and the
22 basis for this. I just wanted to point out also,
23 so that you understood, this is not something that
24 we sprang upon the parties today. I personally
25 spoke with Mr. Seraphin on Friday as soon as it
32
1 became apparent that the City and the State were
2 working towards a program where we thought we
3 could get this accomplished within 60 days. I had
4 a very lengthy telephone conversation with
5 Mr. Seraphin on Friday.
6 MS. SERAPHIN: He is not on the line right
7 now.
8 MR. PENCE: I had a very lengthy conversation
9 with Mr. Seraphin on Friday and explained to him
10 that we would be seeking a stay. His response to
11 me was, well, why wouldn't I agree to that stay,
12 because you are doing exactly what I want you to
13 do. I don't want the material brought became to
14 Riberia Street.
15 MR. HAGARTY: If I might respond, Your Honor,
16 John Hagarty. At this point I would like to
17 respond to Mr. Pence.
18 THE COURT: Okay. When he finishes then you
19 can respond.
20 MR. HAGARTY: Oh, I thought he finished. I
21 am sorry.
22 MR. PENCE: After Mr. Seraphin made that
23 comment I explained to him that I thought there
24 were other people that were participating in his
25 decision making process that may agree, or may not
33
1 agree. And he said --
2 MR. HAGARTY: And that would be his wife.
3 MR. PENCE: Mr. Hagarty, I haven't
4 interrupted you one time.
5 MR. HAGARTY: Right.
6 MR. PENCE: I would appreciate you providing
7 me the simple courtesy at this hearing.
8 MR. HAGARTY: I certainly will.
9 MR. PENCE: In any event, Your Honor, we left
10 the telephone conversation on Friday with
11 Mr. Seraphin advising me that he was -- would be
12 flying home on Sunday and he would discuss it with
13 his wife and call me back on Monday.
14 I suggested to him also during my telephone
15 conversation on Friday that if it was convenient
16 for he and his wife, that we would have a
17 conference room available for this call today,
18 that they could come down and sit down and talk to
19 the City before the call, we could answer any
20 other questions they might have on the status of
21 our negotiations. I advised him that before
22 the -- before any amended consent order would be
23 signed, that the Department and the City had
24 agreed there would be a public meeting and we
25 would solicit input from the public to this
34
1 alternate remedy. And he then indicated that he
2 would call me back Monday. Of course the tornados
3 then hit and he was understandably called to
4 Arkansas through his business. And I didn't hear
5 from him on Monday.
6 I tried calling on Tuesday and I did speak
7 with Mrs. Seraphin. And I advised her, again, of
8 what we were doing with respect to this stay. She
9 indicated to me that she would oppose it.
10 I invited her to come and sit down with the
11 City before this conference call today and then
12 she advised me that they were in Arkansas, and
13 they wouldn't be able to. So I then suggested
14 that we would just deal with it before the ALJ
15 today.
16 MR. HAGARTY: And if I may, Bill, again, if
17 everybody is proceeding in good faith, as I had
18 previously suggested, if it's the decision of the
19 City and of the DEP that they wish to withdraw the
20 consent decree, there are additional parties here,
21 myself and Debra Valenti-Epstein, assuming that
22 our motion to intervene will be granted, and I
23 cannot see how they will not at this point, that's
24 not a suggestion Your Honor you will not, but in
25 any event let's put it in a form of a motion filed
35
1 within ten days and we allow all the parties to
2 proceed then in good faith. I would suggest to
3 Your Honor that there is no need to enter a stay
4 at this point of discovery, simply let the motion
5 of the City and DEP that wish to withdraw the
6 consent decree, allow the parties to sit down and
7 reason together on developing a new consent
8 decree.
9 MS. BISHOP: Your Honor, if I may, this is
10 Karen Bishop from the Department. The procedure
11 in which we normally go about this is that we
12 don't withdraw the consent order until we have
13 reached an agreement on the amended. So I just
14 want to make it clear that's how we would proceed
15 in the case. We would could not withdraw the
16 consent order before we have another one.
17 THE COURT: Right. I understand that.
18 MR. PENCE: And the objection to the motion
19 to stay, Your Honor, would be to permit the
20 parties to save the cost of legal fees that would
21 otherwise be spent responding to discovery
22 requests or allow supplemental motions,
23 challenging various discovery requests if at the
24 end of the 60 days there is no need for this
25 proceeding at all.
36
1 THE COURT: This is what would I invite. I
2 am going to go ahead and stay it temporarily, just
3 to give the time for ya'll to get together to
4 discuss further what the plan is and perhaps you
5 all come to an agreement, and also to allow within
6 10 days for the -- for you to then file a written
7 filing, Mr. Pence, that would include the parties
8 agreement, if there is an agreement. If there is
9 not agreement, I will consider any objections to
10 the motion for a 60 day stay and rule on that. So
11 I not going to schedule a final hearing at this
12 time. Okay.
13 MR. PENCE: Thank you, Your Honor.
14 THE COURT: Is there anything else for today
15 then?
16 MR. HAGARTY: Your Honor, if you would, we
17 are at -- this is John Hagarty. At this point we
18 are proposed intervenors. If the Department truly
19 has an objection to our status, I would like them
20 to accelerate their filing so we can -- because
21 Debra Valenti-Epstein and myself would like to be
22 a part of the process.
23 THE COURT: Well, I will put this in writing,
24 but that was the point of my order earlier that
25 you are parties subject to my ruling on anything
37
1 that might be filed.
2 MR. HAGARTY: All right.
3 MS. VALENTI-EPSTEIN: Thank you, Your Honor.
4 THE COURT: I will put that in writing.
5 MR. HAGARTY: Thank you, sir.
6 THE COURT: You are welcome.
7 So I am hopeful that that's all we need to
8 deal with today and that in the next 10 days
9 things will become clearer. And then perhaps
10 there be nothing else for me to deal with in this
11 case. All right.
12 MS. BISHOP: Thank you, Your Honor.
13 MR. PENCE: Thank you.
14 MR. HAGARTY: Thank you, Your Honor.
15 THE COURT: I thank you all.
16 MR. SLAVIN: Thank you, Judge.
17
18 (Thereupon, at 2:55 p.m. the telephonic
19 hearing was concluded.)
20
21
22
23
24
25
38
1 C E R T I F I C A T E
2
3 The State of Florida, )
County of St. Johns. )
4
5
I, Laura Dwyer Pierle, Court Reporter, do
6 hereby certify that I was authorized to and did report
the above hearing in stenotype; and that the foregoing
7 pages numbered from 1 to 37, inclusive, are a true and
correct transcription of my stenotype notes taken
8 during said hearing.
9
I further certify that I am not attorney or
10 counsel of any of the parties, nor am I a relative or
employee of any attorney or counsel of party connected
11 with the action, nor am I financially interested in the
action.
12
13 The foregoing certification of this
transcript does not apply to any reproduction of the
14 same by any means unless under the direct control
and/or direction of the certifying reporter.
15
16 IN WITNESS WHEREOF, I have hereunto set my
hand this 18th day of February, 2008.
17
18
19
20
21
Laura Dwyer Pierle, Notary
22 Public, in and for the State
of Florida at large.
23 My Commission Expires
10/26/08
24 My Commission #CC
25
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