The group that filed a federal lawsuit against the city of Marco Island for alleged violations of the Clean Air Act will force the city back into court.
Sam Gold, the attorney representing Citizens Advocating Responsible Environmental Solutions (CARES), told the Marco Eagle on Friday that he will file a motion this week asking U.S. District Court Judge John Steele to enforce an agreement signed on Oct. 4 by the city and CARES that canceled the lawsuit.
The agreement states that the city will "make demand on" Quality Enterprises USA, Inc., the contractor for the Collier Boulevard Reconstruction Project, and try to recover city expenses related to the remediation of asbestos contamination on the Veteran Memorial Park site. The city will hold Quality Enterprises to fulfill its contract obligations of indemnification and insurance for the project.
"It's been five weeks since this agreement was signed and adopted by the city council," Gold said. "The city and Quality Enterprises have provided no documentation on the cleanup efforts."
In 2005, the city allowed Quality Enterprises to use the three parcel, 11-acre vacant property at Elkcam Circle and Joy Circle to store equipment, material and old asbestos concrete pipe removed from underneath Collier Boulevard during the reconstruction project.
Pieces of the pipe were discovered outside the park in February by volunteers of CARES, a political action committee. The city began working on a plan to clean up the site. A March 1, 2006 memo from Marco Island Public Works Director Rony Joel to City Manager Bill Moss said that "major challenges" to the original cleanup of the site included "crushing and grinding of concrete material for recycling during reconstruction."
CARES filed the federal lawsuit in March against the city, Quality Enterprises and Moss and Joel as individuals. The suit alleged that the contractor, under the city's watch, mishandled the pipe at the park site, causing asbestos particles to be released into the air, therefore violating the Clean Air Act. The suit also claimed that the city tampered with an environmental witness for CARES in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).
"It's regrettable that the city would intentionally delay the cleanup and risk the taxpayers having to pay for it," Gold said Friday. "If that is the city's position, we have no choice but to file the motion to enforce the settlement agreement within the week and to seek sanctions against all defendants."
He added that neither he nor CARES has received evidence that the city has made a demand on Quality Enterprises for asbestos cleanup costs.
"The city's inaction is against the interest of the taxpayers," Gold said. "The corporate polluter should pay, not citizens. That's what the settlement agreement was all about."
Lisa Douglass, spokeswoman for the city, said Friday that the actions of former CARES chairman Ed Foster and member "Butch" Neylon violated the settlement agreement and the laws and court orders pertaining to the mediation.
"The city's issues with CARES relate to enforcing the settlement agreement but also include additional questions of violations of law," she said. "Further, the city has concerns over the continued handling and retention of asbestos pipe fragments by CARES and its representatives."
The city has decided to attempt to work with CARES in good faith to resolve all of the claims of not living up to the agreement, according to Douglass, instead of using legal action against CARES "for all of these violations and concerns."
She said that the negotiations are ongoing.
"Either the city and CARES will work out all of the issues or the parties will be back in court," she said.
"Negotiations ended when the agreement was adopted," Gold countered. "We'll seek our attorneys fees and costs for being forced to go back to court directly from the city and QE as well as Bill Moss and Rony Joel individually."
The city and its environmental consultant, American Management Resource Corporation (AMRC), tried twice this year to successfully rid the park of asbestos-containing material. In the past two months, the city submitted new plans to the Florida Department of Environmental Protection (DEP) to cleanup Sites C and A of the property. The DEP passed the plans onto the U.S. Environmental Protection Agency (EPA) for review.
Laura Niles, spokeswoman for the EPA, said Nov. 9 that the agency's asbestos group was reviewing the proposals.
A large pile of debris containing segments of asbestos cement pipe still remains on Site A. The city said that the pipe was from the reconstruction project and previously used to distribute potable water.
The city and its consultant drafted a four-page asbestos-remediation plan for the removal of the approximately 8,000- to 10,000-cubic yard aggregate pile that is known to contain pieces of the asbestos cement pipe.
The city said that Quality Enterprises received notice from the DEP with guidance from the EPA, that they had no objections to the plan. The project to clean up the pile and restore the site was to begin on Sept. 4. The EPA halted the cleanup on Sept. 23 so that it could review the plans before the work began.
On Oct. 19, Marco Island resident Ray Beaufort said he saw a Quality Enterprises USA truck dump debris onto Site C. Pieces of asbestos cement pipe were found on the site.
After AMRC conducted a cleanup of the surface of the site on Oct. 26, it was determined that asbestos concrete debris still remained in the ground.
The latest plan for Site C calls for excavating down to at least 24 inches a strip of ground 175 to 200 feet long and 25 feet wide adjacent to Elkcam Circle. The top 6 to 12 inches of soil of another section of the parcel within the Elkcam Circle right-of-way between the pavement and the sidewalk will be removed.
The Oct. 4 agreement that canceled the federal suit also states that CARES will release the city and Quality Enterprises from all claims that were raised and any and all potential future causes of action relating to the Collier Boulevard project.
Under the agreement, CARES must issue a letter of clarification that at no time was any RICO claim alleged against Moss and Joel. CARES and Gold must also issue a letter of support of the city's work plan to cleanup Site A.
CARES drafted a letter of support to the EPA and DEP. Doug Enman, chairman of CARES, forwarded the draft to the Marco Island City Council, Moss and Joel on Oct. 9.
Gold e-mailed a copy of the draft to the Eagle. It states, "The plan is a positive development and appears to be a step in the right direction. However, neither CARES nor its attorney has the expertise necessary to render an opinion on the above mentioned plan."
The draft also states that CARES and Gold are relying on the EPA and DEP for expertise about asbestos remediation.
"Therefore, CARES and its attorney can endorse a remediation plan that has the full approval of the (EPA) and the (DEP), one that determines the amount of (asbestos cement) material in the 'aggregate pile' and surrounding area and ensures its safe removal under adequate supervision."
The letter continues, saying that Gold and CARES will cooperate fully with the EPA and DEP and will not interfere with the remediation of the asbestos-containing material.
Gold said that the city is rejecting the letter, even though it was e-mailed to city councilors before they approved the agreement.
"The council voted for the agreement, but now the city, apparently under pressure from the city manager and Quality Enterprises, is reneging on its commitment," he said.
Gold added that the city wanted to "muzzle" CARES supporters by attempting to force himself and Enman to sign a release prohibiting all citizens who support CARES from speaking up on the cleanup process.
"This was ludicrous and Doug and I stood firm," Gold said. "The city's action raised the specter of ordinary citizens in their homes being gagged by the city in talking about the asbestos contamination. Nothing like this was in the agreement."
Gold sent an e-mail to Enman on Nov. 13, stating that the city requested more demands to the settlement.
The requests included a statement from CARES that Foster and Neylon are no longer with the organization and that they do not speak for the group, a statement that CARES is not affiliated with the www.marcocares.com Web site, a follow- up letter of clarification to the support letter and a letter that CARES is not keeping asbestos in the garages and homes of board members.
"This is a smoke screen designed to get the city and Quality Enterprises off the hook for making sure the taxpayers don't have to pay for the asbestos mess," Gold said.
He added that Enman informed Douglass weeks ago that CARES does not control the site anymore.
Gold forwarded an e-mail to the Eagle that was sent by Enman Oct. 16 to Douglass and Moss. The e-mail states, "The Web site marcocares.com was established and has always been operated as personal property of Ed Foster. While he was chairman, it served as an outlet for CARES, Inc. However, this Web site is no longer an outlet for CARES, Inc. nor does it have any direct affiliation with CARES, Inc."
Since resigning as chairman of CARES, Foster has said that he continues to operate the site as a private citizen.
Enman sent Gold an e-mail on Nov. 14 stating that CARES has met all of the requirements in the agreement and will not agree to the new requests because they are "outside the scope of the mediation agreement. Therefore, the mediation is final and complete or the mediation has failed. There are no other options."
Douglass said the settlement agreement is a matter of public record.
"The city has stated its position that CARES has not fulfilled its obligations under the settlement agreement," she said. "The city and our attorneys have not modified the conditions of the agreement. We only seek to have the settlement followed in the spirit in which it was negotiated."
Marco Island City Council Chairwoman Terri DiSciullo said Friday that the asbestos agreement was discussed on Nov. 13 with the city's attorneys and Gold.
"Certain issues came up between the attorneys which needed to be conveyed to CARES," DiSciullo said. "The attorneys agreed to talk about the issues again on Monday the 20th, so I would rather not speculate on the issues until the attorneys talk on the 20th."