The document was written in response to a request by the Florida and Tropical Audubon societies that Judge Stanley Marcus have the ombudsman review the EPA's work at the site. The government's attorney erroneously asserted to Marcus that the ombudsman does not conduct such reviews.
In the Seventies the City of North Miami allowed a company called Munisport to operate a landfill on property fronting Biscayne Bay near the north campus of Florida International University. Contrary to the city's expectations, Munisport accepted and buried medical waste and hazardous chemicals along with household garbage. In 1982 the EPA placed the dump on the Superfund list, making its cleanup a national priority and requiring agency officials to oversee the removal of hazardous materials.
This past September EPA officials declared to Judge Marcus that the cleanup was proceeding satisfactorily and that federal supervision would no longer be necessary. A judge must eventually approve the EPA's withdrawal from the project, but because Marcus has been appointed to the federal appellate bench, the case is now in limbo until Judge Edward Davis can familiarize himself with its complex legal and technical issues. The Audubon Society told Marcus the EPA ombudsman could help the court by performing an independent review and making recommendations.
But Justice Department attorney Anne C. Hurley told Marcus that he had been "misinformed" about the ombudsman's role. Robert Martin's job is to "facilitate communication between citizens and the agency," Hurley wrote in a November 10 pleading.
In fact, the ombudsman enjoys a much broader mandate, according to Martin, who requested an investigation after the Munisport Dump Coalition, a North Miami watchdog group, asked him to review Hurley's court documents. "The preponderance of our work is to develop reports, which include findings-of-fact and recommendations that are based on an independent and thorough review of technical, policy, and procedural issues involved in ombudsman cases," Martin wrote in a December 3 memo to Nikki Tinsley, acting EPA inspector general.
Hurley denies Martin's allegation that she misled the judge, but she will not comment further. Willfully providing false information to a court can result in criminal charges or disciplinary action against an attorney. Jack Winder, an EPA attorney who assists Hurley in preparing legal pleadings, concedes that she did incorrectly describe Martin's role, but he downplays its significance. "I don't think it's that big a distinction," Winder says. "Certainly not a distinction that rises to the level of criminal activity."
To Joe Fleming, Audubon's Miami attorney, the dispute over the ombudsman's role is only the most recent in a sixteen-year history of missteps by the EPA, the most egregious being the agency's September decision to pull out of the Munisport cleanup before water near the site has been thoroughly cleaned and before hazardous chemicals have been adequately investigated.
Years ago Fleming and the Audubon Society compiled a list of chemicals Munisport employees admitted had been buried in the dump. But EPA officials have never detected dangerous levels of those in the landfill and have instead concentrated their efforts on the mangrove preserve south of the site. There the chief concern has been the seepage of ammonia, created naturally as organic debris decomposes. Fleming and scientists hired by the Munisport Dump Coalition distrust the EPA's testing methods. They believe the government may have missed chemicals that are difficult to locate because they are buried in drums or have welled up in the uneven limestone below the landfill. "There's contamination at that site and it hasn't been eliminated," Fleming insists.
But to the City of North Miami, which owns the 170-acre site, a review by ombudsman Martin will only further delay a project that has gone on too long and cost too much. City Manager Lee Feldman says the city has already spent six million dollars to decontaminate water flowing from the site. If the judge appoints Martin, Feldman vows he'll order engineers hired by the city to stop work because the ombudsman could recommend that the city redesign its decontamination system. "The ombudsman can investigate for six weeks, six months, or two years," Feldman observes. "I don't want to spend millions of dollars working at the site when there's a possibility the whole project could be re-engineered."
The EPA has endorsed a two-part system for clearing the site of contamination, and the city has already completed part one: the construction of channels through the mangroves so water can dilute and flush out the ammonia. Part two of the procedure -- pumping water to a treatment plant either on or off the property -- is not yet operating, though the piping system has been laid.
EPA water tests performed in 1996 show that ammonia levels in some places are on the decline. And though in many areas the concentrations still exceed proposed federal standards, the agency's experts believe that regulators from the state and from Miami-Dade County can complete the work.
Officials from the state Bureau of Natural and Cultural Resources, which oversees the mangrove preserve as well as Oleta River State Recreational Area northeast of the Munisport landfill, believe that before departing, the EPA should determine whether the water around the mangroves is clean enough to support marine life. But those officials reluctantly have agreed to the EPA's withdrawal because they want to reduce the number of government agencies involved in the cleanup. "The toxicity has decreased significantly, but that in and of itself does not prove that we are not still being subjected to contamination," worries Mickey Bryant, a bureau scientist. "We want to be on the record indicating that we're not convinced this site is cleaned up."
Such contradictory conclusions prompted members of the Audubon Society and the Munisport Dump Coalition to request the ombudsman's independent oversight. And the EPA's misleading statements to Judge Marcus have only amplified their growing distrust of both the agency and the city.
Even North Miami officials acknowledge that past city actions have done little to inspire citizen confidence. The site was not originally intended as a landfill at all; the city had promised to build a recreational center there. Munisport, a company owned by a demolition firm, was supposed to bring in clean fill for golf course landscaping. Instead it began collecting and dumping garbage, perhaps as early as 1972.
The city in 1982 invited the EPA to supervise the landfill in the mistaken belief that the federal government would help pay for its cleanup. When it became clear that the EPA would instead police the city's own work, local officials petitioned repeatedly for the agency to pull out.
It wasn't until 1990, however, that the EPA decided the city's efforts were progressing well enough that it could begin packing its bags to leave. EPA and city officials came to an agreement regarding specific clean-up objectives, which Judge Marcus approved in 1991.
Though Audubon and the Munisport Dump Coalition have no official standing in the case, Marcus allowed them to submit comments to him. Those organizations were instrumental in compelling the EPA to re-examine its own conclusions and continue its oversight through this past fall, when the agency again announced its intention to leave.
Nathan Teske, a University of Miami political science professor who is writing a book about Munisport, says the EPA's decision, while practical, does not address promises the agency made in 1991. "The EPA made certain commitments of what they would do -- [decontaminate the water flowing into the mangroves] and in how much time they would do it. They talked about a fifteen-year time period in which the cleanup would go on. Now all of a sudden, seven years later, they're out.