Petition for Administrative Hearing, City of Augustine, Florida

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 FDEP. See ¶ 14 of the proposed Consent Order. Petitioners respectfully request that the individuals responsible for he 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.

(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 xxx, St. Augustine, Florida, reside outside St. Augustine city limits but own a coquina lake adjacent to 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 petitioner Dwight Hines, lives at 150 Nesmith Ave., St. Augustine, Florida 32084, and walks and bikes on the streets where the toxic trucks travel.

(b) NOTICE. Petitioners Judith and Anthony Seraphin (the Seraphins) and Diane and Jerry Mills (the Mills), Ed Slavin and Dwight Hines 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 meeting of Stop the Dump. Petitioners and all other persons similarly situated were forbidden to speak by the City of St. Augustine at its November 13, 2007 meeting, which was held outside the ordinary course of business at 8 AM to deter community members from attending the meeting on the consent decree.
Your petitioners Diane and Jerry Mills reside just outside the St. Augustine city limits, but in close proximity to the Old City Reservoir. The Mills own a coquina lake used for their water company — the lake is adjacent to the Old City Reservoir. Petitioners respectfully request that other Petitioners be recognized at later dates.
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 http://www.cleanupcityofstaugustine.blogspot.com, which he began as a result of the City’s illegal dumping and refusal to answer questions..
Your petitioner, Dr. Dwight Hines, Ph.D., 150 Nesmith Avenue, St. Augustine, Florida has worked to help 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, Dr. Dwight Hines, Ph.D., 150 Nesmith Avenue, St. Augustine, Florida, is a member of Investigative Reporters and Editors, has worked to help 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. Dr. Hines has published in traditional media, and in local, national and international Freedom of Information websitesabout the failure of the City to comply with Rule 1B-26.003, F.A.C. (Management of Open Records) and Chapter 119, Fla. Stat. (2006 & 2007), Florida Public Records Act.
The City is still not in compliance with Rule 1B-26.003, F.A.C. and has not produced documents requested for trucks that were hauling lime, as well as other documents requested pursuant to Chapter 119, Fla.Stat. (2006 & 2007). Dr. Hines has published extensively on national and international Freedom of Information lists on the internet, as well as the St. Augustine Record, Folio Weekly, The Collective Press, and The St. Augustine Chronicle. The continuing failure of the City to honor the mediation agreement made with Dr. Hines means the suit is continuing. Dr. Hines walks, bikes and breathes along the roads that were used by thousands of unsealed trucks to transport toxic materials and has both state and federal formal standing under the state and federal environmental statutes, as well as standing as a right under Florida Constitution for access to public records and United States Constitution’s First Amendment — First Amendment, Freedom of Press that includes the right to gather information that, combined with 42 USC 1983, provides civil rights standing.

(d) DISPUTED FACTS AND ASSUMPTIONS. Petitioners dispute and question the consent decree’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 remedies the 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 remmove 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. “Saving money” is the only reason given for the City’s Boulwaeism.

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.

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

8 There has been a decline in the local African-American population in recent years.

9 The Consent Order errs as it was drafted without 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-American and 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 and 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. Mr. Regan used the term in the December 13, 2007 Stop the Dump and Lincolnville Neighborhood Association (LNA) meeting, 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 “borrow pit” for “Old City Reservoir should be allowed 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 City of St. Augustine’s Old City Reservoir illegal dumping location is a coquina pit lake, a place that long ejuoyed pristine water, where people fished and swam for decades.

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

24 FDEP did not obtain historical data from the nearby coquina pit to determine whether its 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 voted on the Consent Order, 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.

29 In November 2007, FDEP agreed to a Consent Order that gives our 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 City of St. Augustine, which does not use life cycle costing 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 Rule 1B.

35 The City of St. Augustine’s annual Rule 1B certifications are untrustworthy or untrue..

36 The staff and counsel of the City of St. Augustine has filed misleading or inaccurate affidavits in Sunshine law litigation brought by Dr. Dwight Hines, Ph..D..

37 The Consent Order inadequately protects and restores the environmentally sensitive dumping locations and 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 For Mose community was the oldest free black community in North America.

41 Standard Oil cofounder Henry Flagler dredged most of the remains of Fort Mose 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 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 Mr. 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 Riberia Street site, including industrial boat-making paint and solvent waste, coal pile runoff, incinerator waste containing diosins and furans, solid and human waste from septic tank service companies (a/k/a “honey wagons.”).

50 The 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 Mose, 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 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 They 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 As St. Augustine 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).

63 The return of the contaminated materials would set a dangerous precedent for allowing an historic EJ community to be trashed for 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 NATURE OF RESPONDENTS’ 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. Augustuein 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 cojmputer disk.

71 The City of St. Augustine claimed to Dr. Hines that it was unable to printout information on its city comptuer 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 Managenet 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 Mr. 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 City of St. Augustine and 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 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 sewage, 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 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 permits, after being told it could not dump without permits, and after federal and state 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 Mr. 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 preceedings 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 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 indigineous Native American village.

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

111 City records record 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 obtain some truck records.

113 This may be an obstruction of justice and all facts must be disclosed..

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 an intentional wrongdoer rocked the ability of the counsel and FDEP to obtain cooperation from city employees.

116 The Administrative Law Judge is 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 Mr. HARRISS in the midst of a pending environmental crimes investigation had deleterious effects on the ability of the public to learn the truth.

118 The City of St. Augustine’s $50 million, 350-employee city government committed environmental crimes due to its flawed, authoritarian, hierarchical management structure (strong City Manager by charter).

119 This structure is exacerbated by:
120 lack of effective oversight by City Commissioners,
121 lack of internal controls; and
122 lack of any protection for whistleblower rights.

123 It must be the purpose of the Consent Order to remedy the violations in a place that Rev. Dr. Martin Luther King, Jr. called the “most lawless” city in America.

124 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.

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

126 Meetings were held between the City of St. Augustine and FDEP on more than one occasion, with the public not notified of such meetings.

127 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.

128 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.

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 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 LNA 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 unlined trucks, with no standards set for the trucks.

138 There is no reference to EPA’s 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 properties and residents.

QUESTIONS MUST BE ANSWERED UNDER OATH, AT LAST.

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

RESERVATION OF RIGHTS TO STRICT PROOF

141 Petitioners reserve the right to insist on strict proof of the Consent Order contentions, including any inference or implication that:
142 the City of St. Augustine supposedly acted in good faith before being caught February 27, 2006;
143 the engineering investigation was independent or adequate;
144 our state and federal governments acted reasonably and adequately performed their duties; or
145 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.

146 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..

147 FDEP’s Consent Order was adopted after months of delay by the City of St. Augustine.

148 The self-confessed principle purpose of the Consent Order is to “save money,” as announced by Assistant City Manager JOHN REGAN — noit to right a wrong.

149 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.

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

151 Public opinion was refused by our City, despite its promise to St. Augustine Record Opinion Editor Ms. Margo Pope, which was witnessed by Publisher Mr. Derek May..

152 Previous City of St. Augustine decisions on environmental cleanups have involved public meetings and a right of the public to speak, including another project (Sebastian Inland Harbor Project) where AKERMAN SENTERFITT represented the City of St. Augustine.

153 Title VI of the 1964 Civil Rights Act and Environmental justice principles were violated.

154 FDEP has 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 has not implemented principles of environmental justice (EJ).

156 Neither the City of St. Augustine nor the FDEP should undertake to return contaminants to an Environmental Justice community based on the existing record.

(g) COMPLETE RECORD AND FULL REMEDIES ARE REQUIRED.

157 The Administrative Law Judge is asked to order Respondents City of St. Augustine, City Manager William B. Harriss, Mayor Joseph Leroy Boles, ex-Mayor George Gardner, ex-Vice-Mayor Susan Burk , Vice Mayor Donald Crichlow and Commissioner Errol Jones to testify.

158 The ALJ and FDEP must order broader and deeper remedies:
159 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.
160 Requiring training of City employees in a stand-down on safety, health and environmental protection and whistleblower rights secured by federal environmental whistleblower laws.
161 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.
162 Ordering Supplemental Environmental Projects (SEPs) to remedy past pollution in Lincolnville.
163 Remedying the City’s impact on the Lincolnville community 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. F.S. 381.1013, 381.1015.
164 Remedying the City’s environmental lawbreaking by mandating:
165 management reforms;
166 firing the City Manager and suing him to recover sums expended on the cleanup and associated professional fees for legal and engineering work;
167 Rewriting job descriptions to provide protection under federal environmental whistleblower laws;
168 an affirmative direct duty to blow the whistle and stop illegal activities to be adopted by all city employees.
169 Preserving, protecting and defending citizens’ rights to:
170 Report environmental crimes and violations;
171 Speak at public meetings without being molested, harassed or intimidated by City officials;
172 Require City officials to observe Environmental Justice principles.
173 Assuring transparency by, among other reforms requiring:
174 The City to post a performance bond for completion of the remedies required and to be forfeited in the event of violations.
175 The City Manager, Mayor, Commissioner and all Department heads to post performance bonds, to be forfeited in the event of any violations.
176 All environmental documents, including those relating to this action and the related criminal case to be posted upon the City’s website in perpetuity.
177 All trucks moving contaminants to be equipped with Global Positioning System (GPS) tracking devices, to be posted on the City’s website.
178 Automatic 24/7 live web camera coverage of all activities at the Riberia Street site and whatever site that is finally chosen for disposal.
179 rigorous standards for training city employees and contractor employees, sealing the trucks and moniotring their effects.

180 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.

181 Petitioners respectfully request immediate disclosure of all documents to Petitioners on the City’s website and an expedited hearing.

Respectfully submitted,

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

DIANE MILLS
JERRY 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, Pb.D.
150 Nesmith Avenue
St. Augustine, Florida 32084
904-829-1507
PETITIONERS

BEFORE THE STATE OF FLORIDA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP)

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

CITY OF ST. AUGUSTINE FLORIDA,
Respondent.
__________________________________________________________________________

MOTION TO ADD INDIVIDUAL RESPONDENTS
__________________________________________________________________________

Petitioners hereby move to name as Respondents WILLIAM B. HARRISS, CITY MANAGER, JOSEPH LEROY BOLES, JR., MAYOR,COMMISSIONER AND EX-MAYOR GEORGE GARDNER, COMMISSIOENR AND EX-VICE-MAYOR SUSAN BURK, VICE MAYOR DONALD CRICHLOW AND COMMISSIONER ERROL JONES.

Respectfully submitted,

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

DIANE MILLS
JERRY 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, Pb.D.
150 Nesmith Avenue
St. Augustine, Florida 32084
904-829-1507
PETITIONERS

CERTIFICATE OF SERVICE

We certify that the foregoing documents — Petition, Motion to Add Respondents, Motion for Ex Parte Interviews, Interrogatories, Requests for Produuction of Documents and Interrogartoires – weres sent by FedEx to to the Office of General Counsel, Florida Department ofnvironmental Protection, Northeast District Office, 7825 Baymeadow Way Suite B200, Jacksonville, Florida 32256-7590 and 3900 Commonwealth Blvd, MS35, Tallahassee, Florida 32399-3000 and to Mr. William Pence, AKERMAN, SENTERFITT, 420 South Orange Avenue,, Suite 1200, Orlando, Florida 32081 on December 27, 2007, with a courtesy copy mailed or hand-delivered to the City Attorney for the Respondent CITY OF ST. AUGUSTINE.

Respectflly submitted,

Ed Slavin, Petitioner
Box 3084
St. Augusitne, Florida 32085-3084
904-471-7023
904-471-9918 (fax)

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