EPA, Florida DEP, and Scientific Integrity : Miami IMC

There are concern, legitimate concerns by the Union of Concerned Scientists, and others, that the Environmental Protection Agency (EPA) is having its scientfic integrity compromised by politicians. What concerns me is that the violations of scientific integrity are not always political, but often are due more to poor management, failure to follow established protocols to be sure that the methods are generally accepted in the scientific community and, hence, the results will be admissible in state and federal courts, if necessary. EPA may be the least of our worries when it comes to scientific integrity. EPA’s work on quality control is excellent and can be downloaded free from their webpages. The bulk of EPA’s published research is outstanding, it makes me proud that we are in the same country, and I hope that the disagreements can be narrowed down to testable, or falsifiable, statements so we can not only avoid the unnecessary demonizing of an agency that we need, but will allow us to make progress in solving the problems of pollution and over use. There are groups, who have local, national, and international perspectives that are makiing progress, real progress in ecological restoration. The Society for Ecological Restoration is a positive force and a healthy alternative to exaggerated media headlines . < http://www.ser.org/default.asp>. We need to be sure that they have the best scientific information available from EPA.

Yet, EPA is a small group compared to all the state environmental protection agencies. Most environmental monitoring and enforcement are the responsibility of the state environmental agencies, not EPA. In Florida, we have differences with the Florida Department of Environmental Protection (FL-DEP) for not enforcing compliance to their own required methods of sampling and analyses. The people adversely affected by these examples of “junk science” are too often minorities, people who have suffered from environmental injustices too long to be ignored.

As you can see by the letters below, we are taking actions to correct not only the science and restoration violations, but to correct some fundamental flaws in Florida’s Administrative Procedures Act. My complaint of conflict of interest when a FL-DEP attoney makes decisions to allow or not allow a complaint to proceed to court, when that complaint alleges arbitrary and erroneous decisions by the FL-DEP, was faxed to the Florida Secretary of Environmental Protection and filed in the Department of Administrative Hearings along with the formal complaints of others (<http://www.doah.state.fl.us/internet/search/>, DOAH Case No. 08-0213), and is still in progress. I believe we will have an ecologically friendly resolution of our complaints because this week I found a Florida appellate case (Brookwood Extended Care vs. Agency for HealthCare Administration, Case No. 3d02-3060, August 13, 2003, Florida Third District Court of Appeal; < http://www.3dca.flcourts.org/Opinions/3d02-3060.pdf>) where Judge Coe wrote:

I agree on the ultimate result, but write separately to address the responsibilities of agencies in considering requests for a formal hearing, and to suggest that the Legislature needs to amend the statute.
I.
Without realizing it was doing so, the Legislature has created a system that is hazardous to those who want to request an administrative hearing. snip

There is an inherent conflict of interest in this system. The administrative agency which wishes to assess the administrative penalty is the same agency which is allowed to deny a hearing outright, simply on the basis of deficiencies--real or imagined--in the petition for administrative hearing. snip

I have no quarrel with the idea that the statutes must be obeyed, but if the agency which is assessing the
administrative fine is also the agency determining the right to a hearing, then the agency’s power to deny a hearing must be carefully circumscribed.
II.
It goes without saying that the due process clause of the Federal and Florida Constitutions applies in administrative
hearings. See, e.g., Cherry Communications, Inc. v. Deason, 652 So. 2d 803, 804 (Fla. 1995); United Ins. Co. v. State Dept. ofIns., 793 So. 2d 1182, 1183 (Fla. 1st DCA 2001). Litigants are entitled to fair notice and an opportunity to be heard before a fine or other administrative penalty is imposed upon them. Because of due process considerations, if there is any doubt about the sufficiency of the petition, the doubt must be resolved in favor of granting the administrative hearing. snip
III.
In my view, the Legislature should revisit Section 120.569, Florida Statutes, in light of the due process concerns outlined above. Further, it seems advisable to amend the statute with regard to administrative action that is initiated by the filing of an administrative complaint. snip
IV.
The courts and administrative officers should safeguard the constitutionally protected right to a fair hearing in the
administrative process. The statute requires substantial compliance, not strict compliance, in submitting a petition for an administrative hearing. All doubt should be resolved in favor of granting an administrative hearing. A detailed reiteration of the facts contained in an administrative complaint is unnecessary; there only needs to be a brief specification of the facts which are controverted in good faith.

Statutory modification may well be warranted, especially as relates to administrative proceedings which are initiated by an administrative complaint. Cope, J. (specially concurring), Pp. 14-20.

The EPA and the State Environmental Agencies have given a great legacy of established facts that are crucial to our restoring damaged ecologies. We need to be sure that we do everything we can to restore these agencies and people to their rightful places of honor in our communities.

Dwight Hines

Dwight Hines
IndyMedia
St. Augustine, Florida 32084

May 9, 2008

Michael W. Sole, Secretary,
Department of Environmental Protection
State of Florida

Dear Secretary Sole:

I have not had a response to the fax (below) that was sent to your office over two weeks ago. Also, I have not heard from the Inspector General. Last night the City and Florida DEP presented their new consent agreement and it is the same agreement that is referred to in my fax of April 25, 2008, below.

My concerns, in addition to the conflict of interest a DEP attorney has, in this specific situation, when making a determination on standing, is that there are too many unresolved issues left out of the consent agreement (biological inventory of species; scientific determination of concentrations of toxic substances — reliability, validity, and generalizability are present; determination and movement of toxic substances through highly porous coquina into the groundwaters and into adjacent lakes; and, specific plans for restoration of the old city reservoir to where fish and other, as yet unidentified, species can live in, on, and near the water. These areas must be included in a consent agreement to avoid the realistic concerns of citizens that environmental justice is absent here.

I look forward to your response, and to the response of the Inspector General on the conflict of interest of Florida DEP attorneys making decisions on constitutional issues, such as standing, when the Florida DEP is being criticized for their failures to require compliance with generally accepted scientific methods, as well as DEP’s own quality requirements for sampling, testing, and analyses of toxic substances in water. In essence, there needs to be a mechanism for petitioners to avoid putting a DEP attorney into a conflict of interest position.

Please note that I am not affiliated with, nor do I work for, “Citizen Media Law Project” or any other citizen journalism project other than my writings that are posted on their website, and other websites.

Dwight Hines
Copy:
Inspector General, DEP
Honorable Robert S. Cohen, Director and Chief Judge, Division of Administrative Hearings, fax sent to Clerk, again because Judge Cohen’s fax not receiving.
Citizen Media Law Project, Berkman Center for Internet and Society, Harvard Law School
IndyMedia, Miami, Atlanta, New York

Dwight Hines
IndyMedia
150 Nesmith Ave.
St. Augustine, Florida 32084

April 25, 2008
Fax 850-245-2128
Michael W. Sole, Secretary,
Department of Environmental Protection
State of Florida

Dear Secretary Sole:

I am concerned about what I perceive as a conflict of interest within the legal department of the Department of Environmental Protection (DEP).

In February of this year, I filed an amended petition (DOAH Case No. 08-0213); OGC Case No. 06-2179) with exhibits and sworn affidavit challenging a consent agreement between the City of St. Augustine and the DEP. As a writer, I have intervened in state cases and have covered federal cases without a problem — because of the fundamental, constitutional importance of the Florida Public Records Act and the U.S. First Amendment guaranteeing freedom of the press. Noted in my petition were not only those claims but additional claims of inadequate and unacceptable methods used by city contractor labs in sampling, determination and reporting of levels of toxic substances, and the lack of confidence intervals so the measurements could be compared with later samples. In effect, the data are of unknown reliability, unknown validity, and have no generalizability. The techniques used make the results inadmissible in any Florida or Federal court as evidence. In addition, although the illegal dumping by the city killed all the fish in the reservoir, DEP did not require the city to inventory the plant and animal life to determine the extent of the damage to life, or to have information for a restoration program. At this time, there are no plans to restore the old city reservoir to any [measurable biological level of quality].

What concerns me most about these issues is that my petition, with sworn affidavit and supporting exhibits was reviewed by a DEP employee who determined that I did not have standing. Let’s put aside the awkward situation of how I have standing in homicide cases in counties where I’m not a resident, but can not have standing where I live and breathe the air and make multiple public records requests. Let’s just focus on how a DEP employee can be allowed to make determinations when DEP is alleged to be part of the problem. It would appear that taxpayers are paying for DEP to escape accountability.

Finally, today I received a new consent agreement, as yet unratified by the city commission, that has been proposed between the city and DEP that does not correct the errors identified by me or errors identified by others. It was interesting that the consent agreement on page states that in a community meeting (January 10, 2007) that “No evidence was presented during the public meeting or in any of the pleadings filed in the Administrative Challenge to support a claim that the Department abused its enforcement discretion in agreeing to the Initial Consent Order.” (Page 7, electronic version [Page 8, printed version]) This statement is false and misleading and is a strong basis for excluding DEP attorneys from determining that a petition in this limited case will or will not go to the Administrative Law Judge. The filings of the people who complained are on the computer at DOAH and we have a complete videotape of the meeting. Please let me know if you would like a copy of the videotape on a DVD.

To now file a petition again challenging the consent agreement, a petition that will be reviewed by an employee of the DEP, does not make sense. The conflicts of interest here are large and robust. Is there some way that you could appoint an outside, independent attorney to evaluate the petitions in this particular situation? If not, is there some way that in this particular situation, the petition could go directly to the administrative Judge?

I look forward to your response because this appears to be a relatively simple conflict to correct so that any citizen can file a petition, if they desire to do so, and will be certain that the mission of Administrative Legal Judicial Services “emphasizing fairness and impartiality” will not be blocked because of conflicts of interest before the Judge is allowed to evaluate the petition.

Dwight Hines

copy
Inspector General, DEP

Honorable Robert S. Cohen, Director and Chief Judge, Division of Administrative Hearings

Citizen Media Law Project, Berkman Center for Internet and Society, Harvard Law School