Jan 232015
 

halleluja

by Rick Boettger

The organization Dump the Pumps finally got a court hearing in its suit to halt the installation of grinder pumps up the Keys. Judge Wayne Miller heard arguments from Dump the Pumps on one side and the Florida Keys Aqueduct Authority, in charge of installing the pumps, and the Department of Environmental Protection on the other.

Judge Miller explained the long delay Dump the Pumps had in getting a hearing as due in part to three of eight judges being missing from their roster. He was familiar with the written arguments and documents. At one point the FKAA tried to say they had a permit from the DEP, because that's what the document was titled, and Judge Miller referred to paragraph 2, which stated that the permit was not yet valid.

The main point for Dump the Pumps is that the installation of grinder pumps violates various statutory rules governing their use. The clear letter of the law requires gravity systems. They need an injunction to stop the FKAA from installing more of them. Dump the Pumps says the construction permits issued to FKAA by DEP are invalid. Dump the Pumps filed petitions challenging the permits. DEP ignored the petitions. DEP should have sent the petitions to the Department of Administrative Hearings (DOAH) within 15 days and did not. Dump the Pumps filed cease and desist orders which were ignored. Dump the Pumps then filed a Writ of Mandamus to force DEP to forward the Petitions to DOAH. The writ worked, and DEP did.

But when construction did not stop per paragraph 2 of the Intent to Issue Permit, Dump the Pumps filed this emergency injunction to stop construction until they could have their day in court. Gravity was the original design; that is what was sold to the public, and that was the sales pitch for the infrastructure sale tax extension. After the tax was approved, the politicians and FKAA changed the rules. Dump the Pumps wants the gravity system that was sold to the public, not grinder pumps.

The argument by the FKAA was, first, that Dump the Pumps had no standing to file, because no ordinance had been broken. Judge Miller focused on whether a statutory violation had indeed occurred. It seemed to me that the governing statute is violated as soon as the FKAA begins to go ahead with planning the grinder pumps, and does not have to wait any further to require legal action now, but we'll have to wait to see how the Judge rules on this.

FKAA and DEP both argued that state bodies get discretion in interpreting their own rules. This was an issue that came up in my winning lawsuit against the City of Key West, who tried to interpret their own statute that actually granted use of cemetery paths as a “thoroughfare” to mean the exact opposite. I found plenty of precedents saying that “deference” does not allow them to outright violate their own statutes, which worked in my case, and should obtain here as well.

Both FKAA and DEP argued that an Administrative Law Judge was going to rule very soon on the case, according to a phone call to an unnamed administrator in his office. But the ALJ ruling had been put off for months, with no required time limit, and even after the ruling, exceptions would have to be ruled on.

Another KKAA argument was that Dump the Pumps should have to put up a bond, which would be enormous, killing their suit. Judge Miller pointed out, however, that damages from going ahead and digging for the pumps would be at least as expensive should the ruling go against them. So a bond would be inappropriate.

Judge Miller pointed out that the many questions he asks do not indicate which way he is inclined to rule, which I know is true from seeing him before. The way our system works is that you get to be a judge by being the smartest legal mind of your cadre. That means judges in general think faster than the lawyers before them, and they are able to ask the lawyers to focus on the important elements of a case.

But it seems to me that as a taxpayer I do not want the FKAA to go ahead with a project that has so many problems and a high risk of being deemed in violation of state laws. Judge Miller's ruling is due February 2nd.

To learn more about Dump The Pumps, the issues, and how you can join the organization click here.

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Rick Boettger

Rick Boettger

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Blue Paper Editor
Naja Girard
 January 23, 2015  Posted by at 1:20 am Issue #98, Rick Boettger  Add comments

  2 Responses to “Grinder Pumps Opposition Gets Hearing”

  1. The system proposed by FKAA and coddled by DEP is so obviously flawed that some FKAA engineers have expressed deep concern – then they are assigned to other projects and those concerns were ignored. Look at the permit that DEP tried to give Little Palm Island as an example – running sewer lines through old water pipes to the island in shallow waters that boats regularly hit. THOSE pipes were not even prpoperly pemitted or constructed to begin with. A fine example of public vigilance by Dump the Pumps caused DEP to withdraw that idiocy before it could be challenged, but they still maintain that the proposed system is ” the best one we could get for the money”. ( the money left after they raided the infrastructure sales tax kitty for sewers to fritter it away on other less important luxuries .) Then somehow the underground Niles Channel crossing was allowed to be installed without the additional outer casing to protect it and which would show evidence of leakage of the inner piping. So a single pipe was dragged through the marl and rocks and who knows what damage was done to it then and when it will rupture. It will expand and contract under pressure and slowly wear thin- then POW!
    We must appreciate the people who have challenged the E 1 system and those other groups asking for deep well injection to protect our marine environment- unless you want government to run wild and really screw things up for nearly everyone who lives here. . They are so good at that.. Thank you , watch dogs! Let’s get this system right the first time please.

  2. I was unable to attend the hearing, but have a couple of clarifications on background. Dump the Pumps, Inc. (DTPI) began as just fighting the sewage grinder pumps being forced into some people’s yards, and that is still in focus. However, upon closely examining the design, it was discovered that this is not a gravity system supplemented by grinders, but rather, is an atypical grinder system supplemented by gravity to shared grinder pump stations. The selected pump is unconventional to the point of weird and is best suited to an unusual situation such as a long pump uphill. It was sole-sourced in the contract and is only available from one salesman, per the manufacturer’s policy. The entire design had to revolve around this pump’s capabilities and limitations, but it failed to accomplish that without violating nearly every standard of good sewer engineering practice and some national life-safety codes. This system can actually explode, and will certainly spill raw sewage. These concerns were the basis of the Petition against the permits. FDEP did not enforce its own minimum design requirements and the result is the Chernobyl of sewer collection. The hearing was to request that FKAA be ordered to stop construction without a valid permit. FKAA has raced to put the pressure sewers in the ground while largely ignoring the gravity portions, in hopes that the pressure piping will be allowed to remain. The actions of FKAA and FDEP have been beyond irresponsible and into the criminal. One has to question, “Why the irrational attachment to the dangerous E-One brand grinder pump?” FKAA and DEP had a total of 4 lawyers in the courtroom to defend against DTPI’s one! Dump the Pumps, Inc.is all unpaid volunteer except for the lawyer and they can certainly use some help paying the huge legal bills. http://dumpthepumps.com

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