thelivyjr wrote: ↑Wed Apr 20, 2022 1:40 pAs to the silly games the corrupt New York State Department of Environmental Conservation plays to thwart New York State Public Officers Law § 84, which provides in clear and unambiguous statutory language that "a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions," so that, "the more open a government is with its citizenry, the greater the understanding and participation of the public in government," and to further thwart "the people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations" being basic to our society, while denying that "that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article," here is a prime example:
30 March 2022
Dear Paul R.:
Thank you for your Freedom of Information Law (FOIL) request.
Your request has been received and is being processed.
Your request was received in this office on 3/30/2022 and given the reference number FOIL #W098850-033022 for tracking purposes.
You may expect the Department's response to your request no later than 4/28/2022.
Record Requested: Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Algonquin School in the Town of Poestenkill, Rensselaer County; and Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Waste Management Facility in the Town of Poestenkill, Rensselaer County.
April 18, 2022 at 2:56 PM
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Mr. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 5/5/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
April 29, 2022 at 3:15 PM
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 5/27/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
thelivyjr wrote: ↑Wed Jun 29, 2022 1:40 pMay 27, 2022 at 2:10 PM
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 7/29/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 8/29/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 7/2/2022, Reference # W103324-070222
Date: 08/02/2022
Dear Paul R. Plante,
I write in response to your Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) related to a briefing on 21 September 2021 Poestenkill Town residents heard by state Department of Environmental Conservation officials about the PFAS situation in Poestenkill as was stated in an Albany Times Union story on 22 September 2021 titled "Rensselaer County expands PFOA testing in Poestenkill" by Kenneth C. Crowe II.
Please be advised that a diligent search of the files maintained by DEC produced no responsive records.
If you believe you have been unlawfully denied access to responsive records, you have the right to appeal.
Any such appeal must be submitted in writing and within thirty (30) days of the date of this email.
Appeals must be directed to:
FOIL Appeals Officer
Office of General Counsel
New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, NY 12233-1500
Your FOIL request is now closed.
If you need further assistance, please contact the FOIL Unit at (518) 402-9522 and reference FOIL #W103324-070222, or simply reply to this email.
Kristin O’Neill
Assistant Director
New York State Committee on Open Government
One Commerce Plaza, Albany, NY 12231
RE: FOIL is a farce; NYSDEC and NYSDOH make a mockery of FOIL; Intentional abuse of FOIL
Dear Assistant Director O’Neill:
I am writing to you as a citizen of the state of New York who is also licensed as a professional engineer to put in a complaint concerning what I believe to be an intentional abuse of FOIL by both the NYSDEC and the NYSDOH concerning records related to what is alleged to be an investigation of how PFAS came to be in the groundwater of the town of Poestenkill, Rensselaer County, which intentional abuse makes a mockery out of the Freedom of Information Law by both agencies to cover up and whitewash neglect of duty on their parts as well as to protect politically powerful Waste Management of New York, LLC, which corporation is permitted by NYSDEC to operate an industrial scale garbage transfer station at the intersection of NY Routes 66 and 351 in Poestenkill.
According to New York State Public Officers Law § 84, which the NYSDEC and NYSDOH are making a mockery of, it provides in clear and unambiguous statutory language that "The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions," so that, "The more open a government is with its citizenry, the greater the understanding and participation of the public in government."
With respect to this complaint, in New York State Public Officers Law § 84, the legislature further stated that "The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society," so that "Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality."
In New York State Public Officers Law § 84, the legislature concluded by stating that, "The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article."
By way of background, on 2 June 2022, the Advertiser, a local Rensselaer County newspaper serving the area in the Town of Poestenkill, Rensselaer County, proximate to the Algonquin Middle School and the NYSDEC-regulated Poestenkill transfer station at the intersection of Rtes. 66 and 351 affected by PFAS in our groundwater, carried a Letter to the Editor by NYSDEC employee Eric Hausamann, NYSPE 072068, which Letter to the Editor was titled “Poestenkill PFAS Investigation Update,” wherein the residents of Poestenkill were informed as follows, to wit:
The New York State Departments of Environmental Conservation (DEC) and Health (DOH) are working directly with Rensselaer County and the Town of Poestenkill using a coordinated, science-based approach to investigate the source of PFAS contamination in drinking water in the community.
end quote
Now, speaking as a licensed professional engineer further qualified as a public health engineer at the associate level who has a great deal of experience with investigations by the NYSDEC and NYSDOH, if in fact there was an investigation, that investigation would have been in accordance with specific procedures as laid out in regulations, and thus, there should be a paper trail that I as a licensed engineer am entitled to review and audit.
Given that I believe this so-called investigation is in fact a farce, I have been using FOIL as a means of proving so by looking for what is missing from the record, which is where the abuse by NYSDEC and NYSDOH comes in, which takes us to the NYSDEC response to my Public Records Request of 6/1/2022, Reference # W101910-060122 on 06/27/2022, as follows, to wit:
Dear Paul R. Plante,
I write in response to your Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) between 1 January 2021 and the present in connection with NYSDEC Commissioner Basil Seggos deputizing or otherwise making the Town of Poestenkill a "partner" of the NYSDEC in regard to the investigation of PFAS in the groundwater in the town of Poestenkill, Rensselaer County, near the Algonquin Middle School and the intersection of NYS Rtes. 66 and 351.
Please be advised that a diligent search of the files maintained by DEC produced no responsive records.
end quotes
That is with respect to published claims by the NYSDEC that the Town of Poestenkill, which has no jurisdiction in this matter, is somehow a "partner" of the NYSDEC, so that FOIL response proved beyond a shadow of a doubt that that claim by NYSDEC was a falsehood intended to mislead the public in Poestenkill who would not know better, and thus, in that case, FOIL served by purpose quite well, which is to expose these falsehoods to the public being intentionally misled by NYSDEC to cover up their neglect of duty in this matter.
Next we come to the 06/27/2022 NYSDEC response to my Public Records Request of 6/1/2022, Reference # W101909-060122, which response shows the same result with respect to false claims by the NYSDEC that the Rensselaer County Department of Health is a "partner" of the NYSDEC, to wit:
Dear Paul R. Plante,
I write in response to your Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) between 1 January 2021 and the present in connection with NYSDEC Commissioner Basil Seggos deputizing or otherwise making the Rensselaer County Department of Health a "partner" of the NYSDEC in regard to the investigation of PFAS in the groundwater in the town of Poestenkill, Rensselaer County, near the Algonquin Middle School and the intersection of NYS Rtes. 66 and 351.
Please be advised that a diligent search of the files maintained by DEC produced no responsive records.
end quotes
So once again, FOIL served my purpose by exposing the falsity of that statement by NYSDEC again intended to mislead the residents of Poestenkill who do not and would not know better that they are being lied to by the NYSDEC, because Rensselaer County is and has been a health district pursuant to the New York State Public Health Law since 1946, and the Rensselaer County Health Department which has jurisdiction in that health district is not and never has been a "partner," a stupid term, of the NYSDEC.
And the same was the case with my Public Records Request of 6/1/2022, Reference # W101908-060122 with respect to false claims by the NYSDEC that the New York State Department of Health is its "partner," to wit:
Dear Paul R. Plante,
I write in response to your Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) between 1 January 2021 and the present in connection with NYSDEC Commissioner Basil Seggos deputizing or otherwise making the NYSDOH a "partner" of the NYSDEC in regard to the investigation of PFAS in the groundwater in the town of Poestenkill, Rensselaer County, near the Algonquin Middle School and the intersection of NYS Rtes. 66 and 351.
Please be advised that a diligent search of the files maintained by DEC produced no responsive records.
Sincerely,
Records Access
end quotes
And once again, we see FOIL serving my purpose of exposing the fraudulent nature of this so-called "investigation" which in fact is a whitewash and cover-up.
So there, thanks to FOIL, we have concrete evidence from the NYSDEC’s own files and records that when NYSDEC employee Eric Hausamann, NYSPE 072068, published a letter in the 2 June 2022 Advertiser titled “Poestenkill PFAS Investigation Update” claiming therein that the “New York State Departments of Environmental Conservation (DEC) and Health (DOH) are working directly with Rensselaer County and the Town of Poestenkill using a coordinated, science-based approach to investigate the source of PFAS contamination in drinking water in the community,” he was intentionally putting forward a falsehood on behalf of NYSDEC to mislead the unsuspecting public in the Town of Poestenkill who would not know they were being given false information by NYSDEC employee Eric Hausamann, NYSPE 072068, who signed that letter as a P.E., thus using his license to practice as a professional engineer in New York State in a vain effort to legitimize an intentional falsehood, which is fraud and dishonesty, and that brings us to the basis of this complaint which can be seen in this series of responses from the NYSDEC to my 3/30/2022 Public Records Request given the reference number FOIL #W098850-033022 for tracking purposes, to wit:
30 March 2022
Dear Paul R.:
Thank you for your Freedom of Information Law (FOIL) request.
Your request has been received and is being processed.
Your request was received in this office on 3/30/2022 and given the reference number FOIL #W098850-033022 for tracking purposes.
You may expect the Department's response to your request no later than 4/28/2022.
Record Requested: Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Algonquin School in the Town of Poestenkill, Rensselaer County; and Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Waste Management Facility in the Town of Poestenkill, Rensselaer County.
Office of General Counsel
end quotes
Now, here it has to kept in mind that the residents of Poestenkill were first appraised of this so-called "investigation" by NYSDEC Executive Deputy Commissioner Sean Mahar in a public meeting in the Town of Poestenkill that I personally attended as a resident of the town on 27 September 2021, which meeting was memorialized in a WAMC Northeast Public Radio article by Dave Lucas published September 28, 2021, and titled "Residents Of Poestenkill Discuss PFOA-Contaminated Drinking Water" wherein was stated as follows, to wit:
DEC Chief of Staff Sean Mahar: "We appreciated the opportunity to join Poestenkill residents last night to provide an update on our ongoing actions to address PFAS compounds found in the Algonquin Middle School's water supply."
"Since those low level detections were found in January, state experts from DEC and DOH have worked with the Rensselaer County Health Department to develop a science based plan of action and implement that on the ground."
"That work very much is underway right now and we look forward to keeping the community updated as our efforts advance."
end quote
That community meeting was further memorialized in a WNYT-TV article titled "Poestenkill residents decry 'slow progress' in PFOA probe" by WNYT Staff on September 28, 2021, to wit:
POESTENKILL - With chemicals in their drinking water, the angst came bubbling to the surface during a standing room only meeting Monday night in Poestenkill.
"I hope many residents learned tonight the actual scientific process that we have underway here tonight," said Sean Mahar, chief of staff at the Department of Environmental Conservation.
"That was part of what we wanted to accomplish tonight, to give them an idea of how our experts are approaching this situation."
end quotes
And in an article titled "This Rensselaer County community wants answers on PFOA contamination" by Kenneth C. Crowe II of the Times Union on September 28, 2021, we had this, to wit:
POESTENKILL – Rensselaer County and state agencies are methodically expanding their study of PFOA contamination near the Algonquin Middle School, but residents want a more intense study that will test more wells and find the source of the chemical that studies show could cause cancer.
Sean Mahar, DEC chief of staff, reiterated that the testing is following where the science leads it.
end quotes
With respect to this complaint, I would draw your attention to the phrase "Rensselaer County and state agencies are methodically expanding their study of PFOA contamination near the Algonquin Middle School," which would mean that as of 27 September 2021, there already was an on-going investigation, and hence, there should have been records in the files of the NYSDEC concerning that so-called "investigation," especially in light of the statement by Sean Mahar of the NYSDEC that "the testing is following where the science leads it."
With respect to this complaint, if in fact that had been any kind of “coordinated, science-based approach to investigate the source of PFAS contamination in drinking water in the community” in Poestenkill, those records should have been right at hand in the files of the NYSDEC, and it was those records that should have been in existence on 27 September 2021, that I have been seeking through FOIL, which takes us to the following from NYSDEC on April 18, 2022 at 2:56 PM relative to that same request for "Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Algonquin School in the Town of Poestenkill, Rensselaer County; and Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Waste Management Facility in the Town of Poestenkill, Rensselaer County," as follows:
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Mr. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 5/5/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
Thank you.
Sincerely,
Records Access
end quotes
So with respect to records which should have been in existence and ready at hand as of 27 September 2021,184 days before my 3/30/2022 FOIL request, and which I was first promised would be available no later than 4/28/2022, which is now 213 days later, that was followed up by another response from NYSDEC on April 29, 2022 at 3:15 PM relative to that same request for records, as follows:
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 5/27/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
Thank you.
Sincerely,
Records Access
end quotes
That is now 242 days later for records which should have been ready to hand as of 27 September 2021.
And that was followed up by yet another NYSDEC response on May 27, 2022 at 2:10 PM, again relative to that same request for information, to wit:
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 7/29/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
Thank you.
Sincerely,
Records Access
end quotes
So now we are out to 305 days, which brings us to this response from the Office of General Counsel that I received on July 27, 2022 with respect to that same FOIL request, to wit:
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 8/29/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access.
end quotes
So now we are out to 336 days for records which should have been ready to hand on 27 September 2021, which is patently ridiculous, and can only be construed as stalling, and hence this complaint to your office, since it is a waste of time discussing the matter with NYSDEC.
As to NYSDOH, on June 2, 2022, I received this response, to wit:
Thank you for submitting your FOIL request through Open FOIL NY.
Here is your Open FOIL NY confirmation information for future reference:
PLANTE_DOH_20220602054908524
INFORMATION SUBMITTED:
Records Requested From Department of Health:
Short title: Records related to deputizing NYSDEC, RCHD and Poestenkill as partners in Poestenkill PFAS investigation
Description:
I. Any and all records as that term is defined in New York State Public Officers Law § 86(4) between 1 January 2021 and the present in connection with the NYSDOH Commissioner deputizing or otherwise making the NYSDEC a "partner" of the NYSDOH in regard to the investigation of PFAS in the groundwater in the town of Poestenkill, Rensselaer County, near the Algonquin Middle School and the intersection of NYS Rtes. 66 and 351.
II. Any and all records as that term is defined in New York State Public Officers Law § 86(4) between 1 January 2021 and the present in connection with the NYSDOH Commissioner deputizing or otherwise making the Rensselaer County Department of Health a "partner" of the NYSDOH in regard to the investigation of PFAS in the groundwater in the town of Poestenkill, Rensselaer County, near the Algonquin Middle School and the intersection of NYS Rtes. 66 and 351.
III. Any and all records as that term is defined in New York State Public Officers Law § 86(4) between 1 January 2021 and the present in connection with the NYSDOH Commissioner deputizing or otherwise making the Town of Poestenkill a "partner" of the NYSDOH in regard to the investigation of PFAS in the groundwater in the town of Poestenkill, Rensselaer County, near the Algonquin Middle School and the intersection of NYS Rtes. 66 and 351.
Your FOIL request has been forwarded to the organization(s) you selected, and the respective Records Access Officer will contact you directly for further processing of your request.
Please allow up to five business days for such communication(s).
For your convenience, here is additional contact information:
Department of Health
Corning Tower
Room 2364
Albany, NY 12237-0044
end quotes
As of this date, there has been no response from the NYSDOH, which indicates to me they are simply ignoring that request, which they can do with impunity, given that in this state FOIL is nothing more than a joke.
Hence this complaint to your office.
Thanking you in advance for your attention to this matter, I remain
NYS Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231
RE: Intentional abuse of FOIL by NYSDEC and NYSDOH
Mr. Plante,
The Committee on Open Government (Committee) is authorized to provide advice and guidance regarding the Freedom of Information Law (FOIL) and Open Meetings Law (OML).
The Committee is not authorized to investigate complaints, compel an agency or public body to take certain actions, or to determine whether a violation of law has occurred.
Only the courts, through the initiation of a Civil Practice Law and Rules Article 78 proceeding, have enforcement authority in this regard.
Please see the attached document, which explains the timeline in which an agency must respond to a FOIL request.
If an agency does not meet the temporal obligations set by FOIL, you may consider your request constructively denied and submit an appeal.
Jake Forken
Excelsior Fellow
NYS Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231
RE: Intentional abuse of FOIL by NYSDEC and NYSDOH
Dear Jake,
In all sincerity, thank you for your timely response, and for clarifying the fact that NYSDEC can abuse FOIL with impunity, which as I stated in my letter, makes FOIL a mockery.
As was stated in my letter, I have been using FOIL to prove a whitewash and cover-up by NYSDEC, something they have a long history of doing as a corrupt state agency that is and has been a clear and present danger to our health and well-being in Poestenkill and Rensselaer County.
In the event of an Article 78, the Attorney General will step in to defend DEC and will steer the matter to a judge who will be sympathetic to DEC, regardless of the law, which makes this all a very stupid game in a corrupt state where the term RULE OF LAW means nothing at all.
I write in response to your Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) related to a briefing on 21 September 2021 Poestenkill Town residents heard by state Department of Environmental Conservation officials about the PFAS situation in Poestenkill as was stated in an Albany Times Union story on 22 September 2021 titled "Rensselaer County expands PFOA testing in Poestenkill" by Kenneth C. Crowe II.
Please be advised that a diligent search of the files maintained by DEC produced no responsive records.
If you believe you have been unlawfully denied access to responsive records, you have the right to appeal.
Any such appeal must be submitted in writing and within thirty (30) days of the date of this email.
Appeals must be directed to:
FOIL Appeals Officer
Office of General Counsel
New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, NY 12233-1500
Your FOIL request is now closed.
If you need further assistance, please contact the FOIL Unit at (518) 402-9522 and reference FOIL #W103324-070222, or simply reply to this email.
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 6/26/2022, Reference # W103020-062622
Date: 08/04/2022
Dear Mr. Plante,
This is in response to your 6/26/2022 Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) for the period between 1 January 2021 and 27 September 2021 related to a response from DEC to an invitation extended to DEC by the Town of Poestenkill, which invitation was the subject of an article in THE ADVERTISER LOCAL GOVERNMENT titled Poestenkill PFOA Community Meeting dated September 23, 2021, wherein was stated "A Community Meeting is scheduled in Poestenkill, Rensselaer County to discuss PFOA found in drinking water at local school and nearby homes," and "Representatives from the NYS Department of Environmental Conservation, NYS Department of Health, and Rensselaer County Health Department have been invited to participate."
The Department of Environmental Conservation (DEC) has identified records responsive to your request and has uploaded those records into DEC's online FOIL request system.
Please visit the customer portal for DEC's online system by clicking here to log into your DEC FOIL account, where you can view and download the records.
Be advised that DEC has withheld certain responsive documents or portions thereof from disclosure in accordance with one or more of the following provisions of the Public Officers Law (POL):
87(2)(a)
87(2)(g)
If you believe you have been unlawfully denied access to records, you have the right to appeal.
Any such appeal must be submitted in writing and within thirty (30) days of the date of this email.
Appeals must be directed to:
FOIL Appeals Officer
Office of General Counsel
New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, NY 12233-1500
Your FOIL request is now closed.
Please reference FOIL #W103020-062622 in all future correspondence with DEC concerning this request.
Kristin O’Neill
Assistant Director
New York State Committee on Open Government
One Commerce Plaza, Albany, NY 12231
RE: NYSDEC uses FOIL PORTAL to make a malicious, vicious and cowardly CYBER-ATTACK on my computer
Dear Assistant Director O’Neill:
On 4 August 2022, one (1) day after your agency responded to a complaint of mine on 2 August 2022 as a citizen of the state of New York who is also licensed as a professional engineer concerning what I know to be an intentional abuse of FOIL by both the NYSDEC and the NYSDOH concerning records related to what is alleged to be an investigation of how PFAS came to be in the groundwater of the town of Poestenkill, Rensselaer County, which intentional abuse makes a mockery out of the Freedom of Information Law by both agencies to cover up and whitewash neglect of duty on their parts as well as to protect politically powerful Waste Management of New York, LLC, which corporation is permitted by NYSDEC to operate an industrial scale garbage transfer station at the intersection of NY Routes 66 and 351 in Poestenkill, in which response, your agency on 3 August 2022 assured me that your Committee is not authorized to investigate complaints, compel an agency or public body to take certain actions, or to determine whether a violation of law has occurred, which essentially renders your Committee quite useless to law-abiding New York state citizens, I received this following response to a FOIL request of mine received by the DEC thirty-nine (39) days before on 6/26/2022 and given the reference number FOIL #W103020-062622 for tracking purposes, with the Department's response to my request supposedly coming no later than 7/26/2022, to wit:
Office of General Counsel
P: (518) 402-9522 | F: www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 6/26/2022, Reference # W103020-062622
Date: 08/04/2022
Dear Mr. Plante,
This is in response to your 6/26/2022 Freedom of Information Law (FOIL) request seeking:
Any and all records as that term is defined in New York State Public Officers Law § 86(4) for the period between 1 January 2021 and 27 September 2021 related to a response from DEC to an invitation extended to DEC by the Town of Poestenkill, which invitation was the subject of an article in THE ADVERTISER LOCAL GOVERNMENT titled Poestenkill PFOA Community Meeting dated September 23, 2021, wherein was stated "A Community Meeting is scheduled in Poestenkill, Rensselaer County to discuss PFOA found in drinking water at local school and nearby homes," and "Representatives from the NYS Department of Environmental Conservation, NYS Department of Health, and Rensselaer County Health Department have been invited to participate."
The Department of Environmental Conservation (DEC) has identified records responsive to your request and has uploaded those records into DEC's online FOIL request system.
Please visit the customer portal for DEC's online system by clicking here to log into your DEC FOIL account, where you can view and download the records.
Please reference FOIL #W103020-062622 in all future correspondence with DEC concerning this request.
Thank you.
Sincerely,
Records Access Office
end quotes
For the record, when I went to the customer portal for DEC's online system to log into my DEC FOIL account, what I found waiting for me was a long list of garbage that had nothing whatsoever to do with my FOIL request, and when I clicked randomly on two different entries, both times I got warnings from my security system that it would not open the files because they contained MALWARE or bugs or viruses that would damage my computer, which CYBER ATTACK I believe was intentional on the part of the NYSDEC using the FOIL portal as an offensive weapon with which to cause me harm, knowing from your 3 August response to my complaint about DEC's intentional abuse of FOIL that they are literally above the law and consequently, are untouchable, and cannot be held to account for this COWARDLY CYBER ATTACK on my computer on 4 August 2022.
Kristin O’Neill
Assistant Director
New York State Committee on Open Government
One Commerce Plaza, Albany, NY 12231
RE: A challenge of a false statement in yours of 3 August 2022
Dear Assistant Director O’Neill:
My purpose in this writing is to take issue with this following statement from yours to me of 3 August 2022, where I was informed that your Committee is not authorized to investigate complaints, compel an agency or public body to take certain actions, or to determine whether a violation of law has occurred, to wit:
Only the courts, through the initiation of a Civil Practice Law and Rules Article 78 proceeding, have enforcement authority in this regard.
end quotes
That statement is patently false and intentionally misleading because the courts, through the initiation of a Civil Practice Law and Rules Article 78 proceeding with regard to intentional FOIL abuses by NYSDEC, have absolutely no enforcement authority whatsoever in that regard, and your Committee should not be misleading the citizens of this state by telling them otherwise.
I personally am well aware of the Article 78 process, having prevailed against the NYSDEC in two separate Article 78's, including at the Appellate Level, and there was absolutely no enforcement from the court forthcoming, because Article 78 of the CPLR gives the Court no such enforcement authority, such as mandamus, in a case where as your Committee has confirmed, the NYSDEC is under no obligation whatsoever to obey the law.
So a Supreme Court justice cannot order the NYSDEC to do something that the FOIL LAW does not require them to do.
If NYSDEC intentionally abuses FOIL, there is no penalty in the law imposed on them, and thus, FOIL creates no rights for a citizen which are enforceable in a court of law.
Yes, we can file a petition, and win a judgment against NYSDEC, but so what?
All we have gained is a worthless piece of paper that says on it that a Supreme Court justice agrees with us that NYSDEC didn't do something right, and that's it.
And that worthless piece of paper costs a minimum of several hundred dollars assuming the petitioner is acting pro se without a lawyer.
I know that because I have a stack of worthless Article 78 decisions in my possession, which the NYSDEC laughs at and ignores because the NYSDEC, like myself, knows they are worthless and because of another adverse Article 78 decision against them, nothing is going to change, no heads are going to roll, and this is a good chance for promotion, to boot.
So please stop lying to people and misleading them about Article 78's.
Thanking you in advance for your prompt attention to this matter, I remain
Kristin O’Neill
Assistant Director
New York State Committee on Open Government
One Commerce Plaza, Albany, NY 12231
RE: What really happens when a citizen attempts to use Article 78 against the NYSDEC
Dear Assistant Director O’Neill:
And to bring this to a conclusion with respect to the false and misleading statement in yours to me of 3 August 2022, where after being informed that your Committee is not authorized to investigate complaints, compel an agency or public body to take certain actions, or to determine whether a violation of law has occurred, I was told "Only the courts, through the initiation of a Civil Practice Law and Rules Article 78 proceeding, have enforcement authority in this regard," the following is a real-world example of exactly what does happen when a citizen, in this case, myself, attempts to have a judgment against NYSDEC enforced by a Supreme Court justice, to wit:
3 October 2015
Hon. Michael Melkonian
Acting Justice of the Supreme Court
Supreme Court, Rensselaer County
80 Second Street
Troy, NY 12180
RE: Plante v. Poestenkill et al., Rensselaer County Index No. 204938; Conference of 28 September 2015; Due Process of Law; Notice and Opportunity to Be Heard
Your Honor:
I would like to take this opportunity to clear up what seems to have been some lingering confusion at the close of the conference on 28 September 2015 on the part of your law clerk, the Attorney General's office and Mr. Andrew Gilchrist as to what is transpiring in this above matter.
At the start of the conference on 28 September 2015, your law clerk started the conference by telling me that I was confused, based on her reading of my letter to Your Honor dated 2 September 2015, which correspondence was entitled RE: Plante v. Poestenkill et al., Rensselaer County Index No. 204938; Defective Service by New York State Attorney General Eric T. Schneiderman; Tactical Chicanery; Denial of Constitutional Rights; Intentional Infliction of Emotional Distress; Request for Declaration of Rights.
By way of review, in that 2 September 2015 correspondence under discussion at the 28 September 2015 conference, I informed Your Honor that on 1 September 2015, I had received by mail a thick packet of what appeared to be legal papers from the Office of New York State Attorney General Eric T. Schneiderman in connection with this above-captioned matter, and that in that packet of papers, there was an affirmation of Assistant New York State Attorney General Marie Chery-Sekhobo dated August 28, 2015 stating therein under oath that she is familiar with all the stated facts which are to follow in this matter in this letter.
In that packet of papers, there was also an affidavit of New York State Department of Environmental Conservation Region IV Deputy Regional Permit Administrator Nancy M. Baker dated August 28, 2015 wherein Ms. Baker asserted under oath on behalf of the New York State Department of Environmental Conservation and its Commissioner Marc Gerstman that I have no rights as a citizen of the state of New York pursuant to the Environmental Conservation Law and New York Constitution Article 14, which sworn statements form the basis of this petitioner's constitutional tort claims in the proceeding.
For there, it is respectfully submitted, in plain language in that August 28, 2015 sworn affidavit of DEC Region IV Deputy Permit Administrator Nancy Baker is the heart of what this action is all about - a policy of intentional and willful denial of my rights under the law by the New York State Department of Environmental Conservation, which means this is no longer an Article 78 proceeding with a four-month statute of limitations, nor was it when it was before Judge Canfield in 2002, as can be readily discerned from Judge Canfield's judicial language in that decision as follows:
"Petitioner Pro Se, Paul R. Plante (Plante) commenced this Article 78 proceeding challenging and seeking to annul the respondent Planning Board of the Town of Poestenkill's (Poestenkill) April 3, 2002 resolution approving respondent Shower's Enterprises, Inc.'s (Showers) application to subdivide property that is subject to a series of prior judicial determinations and determining that subdivision would have no environmental impact."
"Plante further seeks to enjoin the respondent Department of Environmental Conservation (DEC)."
End quote
Clearly that action before Judge Canfield in 2002 which I wish to re-commence was about more than just the issuance of a Mined Land Reclamation Permit and so was a hybrid suit.
It was clearly about endemic lawlessness and regulatory insufficiency at the New York State Department of Environmental Conservation and in the Town of Poestenkill, as is evidenced by Judge Canfield's words "a series of prior judicial determinations" which are totally worthless, because the New York State Department of Environmental Conservation and the Town of Postenkill are scofflaws who hold judicial decisions against them by Supreme Court Judges in Article 78 proceedings in contempt.
If this is to be merely another Article 78, then in all truth, it is not worth wasting this Court's time, because all I will end up with should I prevail is just another worthless piece of paper called a judicial decision that I can add to the stack Judge Canfield referenced in his 2002 decision in Matter of Plante v. Planning Board of the Town of Poestenkill et al., Rensselaer County Index No. 204938, decided October 3, 2002.
The New York State Department of Environmental Conservation is clearly denying that I have rights under the law in the State of New York, which makes this a proceeding with a three-year statute of limitations, not four months.
Returning to my letter to Your Honor dated 2 September 2015 which was the subject of the 28 September 2015 conference in Your Honor's Chambers, I stated that neither document I had received from the Office of the New York State Attorney General stated who the assigned judge was, nor did the motion papers dated August 28, 2015 submitted by Assistant New York State Attorney General Marie Chery-Sekhobo in connection with this above captioned matter contain a Notice of Motion To Dismiss with a return date, so that accordingly, I did not know who these papers had been filed with, or even if they have been filed, nor did I know when responsive papers must be filed.
My letter of 2 September 2015 further stated that in the motion papers dated August 28, 2015 submitted by Assistant New York State Attorney General Marie Chery-Sekhobo in connection with this above captioned matter, in paragraph 10 at p. 4, there was this cryptic comment, to wit:
"Later, when I spoke to Judge Melkonian's law secretary, she confirmed that no notice of motion was filed along with the memorandum."
End quote
I then stated in my 2 September letter to Your Honor that the "memorandum" Assistant New York State Attorney General Marie Chery-Sekhobo appeared to be referencing in her August 28, 2015 affirmation was a document with Exhibits A-L annexed thereto which was clearly addressed by myself to Hon. Patrick McGrath, JSC, Chambers, Rensselaer County Courthouse, 80 Second Street, Troy, NY 12180 and it was entitled MEMORANDUM IN SUPPORT OF RECOMMENCING THE ABOVE MATTER and it was submitted by myself to Judge McGrath's chambers on April 24, 2015 in the form of an ex parte application to commence the above matter by Order to Show Cause.
I then presented Your Honor with the rhetorical question of why Assistant New York State Attorney General Marie Chery-Sekhobo was confused by any of that and would therefore need to seek guidance from your law secretary as opposed to Judge McGrath.
This apparently was the "confusion" your law clerk was referencing at the start of the conference on 28 September 2015, and all she said was that Judge McGrath is no longer involved in the matter, with no explanation beyond that, which did not serve to clear up the confusion as to how that happened, how come I was never notified of anything by the Clerk of the Court, and how come Assistant Attorney General Marie Chery-Sekhobo was aware of this, while I was not.
Be that as it now may be, it was my understanding at the conclusion of the conference that I have until 20 October 2015 to submit responsive papers, which I intend to do, despite the threat of a SLAPP suit by attorney Andrew Gilchrist if I charge the New York State Department of Environmental Conservation and the Town of Poestenkill with collusion intended to deny me my rights under the law while conferring a benefit on Mr. Gilchrist's client, Polaro Sand & Gravel, Inc., which brings us to yet another point of confusion at the 28 September 2015 conference, where your law clerk said she did not know what a SLAPP suit is, to which I responded that a SLAPP suit is a "strategic lawsuit against public persons" intended to intimidate and deter them from seeking constitutional redress of grievance, as I am doing in this matter presently before this Court.
A SLAPP suit such as was threatened against myself by Mr. Gilchrist is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
By threatening me with this SLAPP suit, Mr. Gilchrist's goals would be accomplished if he can get me to succumb to fear, intimidation, mounting legal costs or simple exhaustion so that I would abandon my criticism of the New York State Department of Environmental Conservation and the Town of Poestenkill.
And that brings us to the question of the appearance of Mr. Gilchrist at the conference on 28 September 2015, where he quite disingenuously informed your law clerk that "it appeared" as if I was challenging a permit issued to his client, Polaro Sand & Gravel, Inc.
Now, first of all, I am not merely challenging the permit.
What I am challenging is the lawless process which produced the Polaro permit, and in the course, of doing so, intentionally denied me rights under the law.
And for the record, Mr. Gilchrist clearly knew what I was challenging at the 28 September 2015 conference he attended despite being without invitation, the proof of which is annexed to a 21 September 2015 letter to Your Honor from myself as Exhibit B, that being a copy of a November 12, 2014 letter to the New York State Department of Environmental Conservation from attorney Andrew Gilchrist, Esq, of Tuczinski, Cavalier & Gilchrist, P.C., 54 State St., Suite 803, Albany, New York 12207, wherein was stated on page 1 in relevant part as follows:
"Dear Ms. Baker:"
"The undersigned has been retained by Polaro Sand & Gravel, Inc. regarding the above referenced application to modify the MLRL permit held by Polaro Sand & Gravel, Inc. for its mining operation on State Route 351, Town of Poestenkill, Rensselaer County, New York."
"Enclosed in the Department's October 23, 2014 correspondence were the following public comments received by the Department during the public comment period on this action:"
End quotes
The first document referenced by Mr. Gilchrist in that November 12, 2014 letter to Ms. Baker of the NYSDEC Region IV Office was a letter from Town of Poestenkill Supervisor Dominic Jacangelo to Nancy Baker dated September 10, 2014 wherein was falsely stated there were no complaints with this mine, or mining in Poestenkill, to which Mr. Gilchrist responded to Ms. Baker:
"The letter submitted by the Town of Poestenkill generally supports the present application to amend the Polaro Sand & Gravel MLRL permit."
"We concur with the points raised in the letter of the Town of Poestenkill, and Polaro Sand & Gravel, Inc, appreciates the support of the Town of Poestenkill in this matter."
End quotes
Clearly, from November 12, 2014 letter of Mr. Gilchrist to Nancy Baker of the NYSDEC, it is readily apparent not only that the willful false statements of Poestenkill Town Supervisor Dominic Jacangelo in his September 10, 2014 letter to Ms. Baker of the NYSDEC Region IV Office benefitted Mr. Gilchrist's client Polaro Sand & Gravel, Inc., but that on November 12, 2014, nearly a year before the September 28, 2015 conference in Your Honor's chambers where Mr. Gilchrist disingenuously tried to appear confused as to what my complaint in the above matter is about, which is duplicity and collusion on the part of the NYSDEC and Town of Poestenkill which had benefitted Mr. Gilchrist's client Polaro Sand & Gravel, Inc., Mr. Gilchrist was well aware of the benefit to his client from that duplicitous conduct by Poestenkill Town Supervisor Jacangelo, and aware of the further fact that Mr. Gilchrist's client Polaro Sand & Gravel, Inc. was thankful and grateful for that duplicity on the part of Supervisor Jacangelo which intentionally denied me rights in this above matter.
The third letter referenced by Mr. Gilchrist in his November 12, 2014 letter to Ms. Baker was a letter from myself to Poestenkill Town Supervisor Dominic Jacangelo dated 8 October 2014 wherein was stated:
"In the official files and records of the New York State Department of Environmental Conservation in connection with this above application on Rt. 351 in the Town of Poestenkill, Rensselaer County, which I understand from Nancy M. Baker of the NYSDEC Region IV Office you have been asked to comment on as Poestenkill Town Supervisor, there is a two-volume document of 877 pages in length entitled Record on Appeal in Matter of Lascari et al. v. DEC et al. which was filed with the State of New York Supreme Court Appellate Division, Third Department on December 15, 1995 by NYSDEC's counsel of record in that matter, New York State Attorney General Dennis C. Vacco, Esq."
"In paragraph 5 at page one of that 877-page document, NYSDEC's attorney, New York State Attorney General Dennis C. Vacco, Esq., stated to the Appellate Court as follows:
In this proceeding pursuant to CPLR Article 78, respondent-appellant (NYSDEC) seeks reversal of the order and judgment of Special Term which annulled a permit (MLRP) issued by respondent-appellant (NYSDEC), and a declaration that such permit was validly issued."
end quote
That October 8, 2014 letter to Supervisor Jacangelo referenced by Mr. Gilchrist went on to say as follows:
"That permit which was annulled was for this same project on this same site which you have been asked to comment on as Poestenkill Town Supervisor."
"In the official records and files of the NYSDEC concerning this matter, there is also an Appellate Court decision making it incandescently clear that the New York State Department of Environmental Conservation failed to prevail in that matter."
End quote
The October 8, 2014 letter to Supervisor Jacangelo from myself continued as follows:
"The Town of Poestenkill was also a party to this series of actions, so that the 877 pages of documents are also in your own official files and records in the Town of Poestenkill."
"With respect to this above application, at page 265 of Volume I of that Record on Appeal, there is a copy of the decision of Special Term in that matter dated November 18, 1993, which was unsuccessfully appealed from by the New York State Department of Environmental Conservation, wherein is stated in relevant part as follows:
Premised upon Judge Williams' previous determination that the site at issue may not be mined without the preparation of an Environmental Impact Statement, the issuance of Permit Number 2, for a segmented parcel of the original site may not be permitted, absent completion of an EIS which encompasses the entire parcel of land available to the project sponsor."
end quote
The October 8, 2014 letter from myself to Supervisor Jacangelo, which was clearly in the possession of Mr. Gilchrist on November 12, 2014, almost a year before the 28 September 2015 conference in Your Honor's Chambers, went on to say:
"Of direct relevance to this above project and your comments as Poestenkill Town Supervisor, given that the Town of Poestenkill was a party to that same decision, the relevant language in that November 18, 1993 Decision is 'site at issue,' which is this same site."
"In other words, no matter who the applicant is, this decision applies to the site, not the applicant, and binds the NYSDEC to a certain course of action should it have a Mined Land Reclamation Permit for this site."
"Of further relevance to this application and your response to the NYSDEC Region IV is this following language of Special Term concerning the same lawless and duplicitous conduct of the New York State Department of Environmental Conservation that is being employed yet again in connection with this above application, to wit:
On May 18, 1993, The Honorable Robert C. Williams issued an exhaustive and thorough opinion which annulled a permit issued to R.J. Valente, Inc. to mine a total of 27.5 acres off Route 351 in Poestenkill, Rensselaer County, without preparation of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA).
The above-captioned Article 78 proceedings both challenge yet another determination by the Department of Environmental Conservation which found that no EIS would be required prior to the issuance of a mining permit to Valente to mine a total of 8.4 acres of land at the identical site, again, without preparation of an EIS.
To the extent that the present litigation is identical to the Article 78 proceeding before Judge Williams, his findings must be deemed conclusive and binding in these proceedings.
It is readily apparent that the application to mine a smaller portion of the land is a rather transparent attempt to remove the project from consideration as a "Type I" activity.
As Judge Williams recognized, any activity which involves the physical alteration of ten or more acres is labeled a Type I activity and presumed to significantly affect the environment with resultant requirement to complete an EIS.
It is also without doubt that the 8.4 acre parcel and the 27 acres covered by the previous permit are part of a still larger parcel, all of which is susceptible to incremental applications designed to avoid the requirement that the cumulative impact of mining at this site be considered prior to the issuance of any permit.
The total acreage owned or controlled by the project sponsor is approximately 115 acres.
The application for the Mined Land Reclamation Permit indicates that the future uses of the site include pasture, residential, wildlife habitat and "other applicable uses dependent upon future conditions and local laws."
At minimum, this artful language leaves little doubt that the project sponsor has reserved the option to continue to utilize the site as a gravel mine on an ever-increasing scale.
Such a segmented approach has been specifically rejected (Matter of Save The Pine Bush v. City of Albany, 70 NY2d 193, 205-206)."
end quote
With respect to Mr. Gilchrist's threatened SLAPP suit, my 8 October 2014 letter to Supervisor Jacangelo continued by stating:
"Notwithstanding, once again, the Department of Environmental Conservation has knowingly and willfully chosen to turn its back on the New York State Constitution and the New York State Environmental Conservation Law and to resort once again to duplicity, collusion, unlawful segmentation and artful language to evade the requirements of the New York State Environmental Quality Review Act, in the course of doing so, stripping myself and the other Lascari petitioners of our rights to equal protection of law and due process of law as citizens of this state, this after we had gone to court several times, including the Appellate Division, to establish our rights in the first place in connection with this site."
"Thus, by putting this application out for review without an EIS, the NYSDEC Region IV Office has clearly failed to perform a duty enjoined upon it by law."
"Further, by putting this application out for review without an EIS, the NYSDEC Region IV Office has proceeded and is proceeding without and in excess of its jurisdiction."
"Beyond that, the determination by the NYSDEC Region IV office to put this application out for review without an EIS was made in violation of lawful procedure, was affected by an error of law or is arbitrary and capricious and an abuse of discretion."
"So what you are being asked to approve as Poestenkill Town Supervisor in connection with this above application is further lawless conduct on the part of the NYSDEC Region IV Office, which now has a long and well-documented history of lawlessness and regulatory insufficiency."
"Therefore, as a resident of this Town, I am requesting that you as Poestenkill Town Supervisor defend the position of the Town of Poestenkill as established by the Appellate Division, Third Department in Matter of Lascari et al. v. DEC et al., that there must be an EIS prepared for this site before there will be any consideration given to the issuance of a Mined Land Reclamation Permit for this site."
End quote
Thus it can readily be seen that on 28 September 2015, Mr. Gilchrist was being exceedingly disingenuous when he told your law clerk that he had no idea what my complaints were, as he had them in black and white almost a year earlier, courtesy of Ms. Nancy Baker at the DEC.
Beyond that, in his November 12, 2014 letter to Ms. Baker, Mr. Gilchrist also acknowledged being in possession of a letter from myself to Nancy Baker dated October 4, 2014 wherein was stated in relevant part as follows:
"In your official files and records in connection with this above application on Rt. 351 in the Town of Poestenkill, Rensselaer County, you have a two-volume document of 877 pages in length entitled Record on Appeal in Matter of Lascari et al. v. DEC et al. which was filed with the State of New York Supreme Court Appellate Division, Third Department on December 15, 1995 by your counsel of record in that matter, New York State Attorney General Dennis C. Vacco, Esq."
"With respect to this present application for this same parcel of land that is out for public review, at page 20 of Volume I of the 877-page Record on Appeal which is a part of your official files and records concerning this matter, there is a fifteen (15) page affidavit from myself as a New York State licensed professional engineer which details the background of this matter in the Town of Poestenkill, Rensselaer County, beginning in 1986, when, as a New York State licensed professional engineer, I was detailed by then-New York State Health Commissioner Dr. David Axelrod to, among other things, conduct an investigation of improper permitting practices in the Town of Poestenkill that were threatening human life, health and property."
"In paragraph 2 of that March 17, 1994 affidavit, which was never challenged or refuted by the New York State Department of Environmental Conservation, I stated as follows:"
"In the course of that investigation, I came across several cases where improper permits had been issued in the Town of Poestenkill, Rensselaer County, by the Region IV Office of the New York State Department of Environmental Conservation, and in accordance with my instructions from the New York State Health Department, I began to thoroughly document the circumstance in those cases where improper permits had been issued by DEC in Rensselaer County, generally, and in the Town of Poestenkill, specifically."
"Beginning in paragraph 3 of that March 17, 1994 affidavit, I documented for the Court the specific history of this same project."
"Again, none of that history was ever challenged or refuted by either the Town of Poestenkill, or the New York State Department of Environmental Conservation, and thus, that March 17, 1994 affidavit and all of its exhibits are a part of the Record of Review that you must consider today in your review of this permit application, and I am formally requesting that it, and the remainder of this 877-page Record on Review be made a part of the record for this project review."
"With respect to that 877-page Record on Review that is a part of your official files and records in connection with this instant matter, at page 58 of Volume I, there is an eighteen (18) page affidavit from myself to the Court dated March 24, 1994, where I expose for the Court duplicity on the part of NYSDEC Region IV staff in connection with this same application, which again, was never refuted by the New York State Department of Environmental Conservation."
"I am formally requesting that that March 24, 1994 affidavit and all of its exhibits be made a part of the record you are reviewing in connection with this application."
"At page 140 of Volume I, there is a copy of the amended petition dated July 13, 1992 submitted to Special Term by myself and the other petitioners in the matter."
"For the record, I would note that the respondents included not only the New York State Department of Environmental Conservation, but also Commissioner Thomas C. Jorling, Region IV Permit Administrator William Clarke, Region IV Deputy Permit Administrator John H. Feltman, and Region IV Senior Environmental Analyst Louise King, all of whom are losing parties at the Appellate level in this matter, and thus, are bound by the decision of the Appellate Court, as is the New York State Department of Environmental Conservation, as well as yourself, as an employee or officer or agent of the Department."
"That amended petition and its exhibits makes it patently clear that this application under review today is the same application rejected by Special Term in 1994, and I am formally requesting that that amended petition dated July 13, 1992 be made a part of the record you are reviewing in connection with this above application."
"At page 175 of Volume I of that Record on Review, there is a copy of a forty-six (46) page affidavit from myself to Special Term dated April 2, 1993 wherein my concerns with regard to this same application were stated in plain language, as was the procedural history of the matter."
"I am formally requesting that this forty-six (46) page affidavit from myself to Special Term dated April 2, 1993 be made a part of the record that you are reviewing in connection with this present application, since my concerns not only remain the same, but were upheld as valid not only by Special Term, but by the Appellate Court, as well."
"At page 223 of Volume I of that Record on Appeal, there is a nine (9) page affidavit from myself to Special Term dated April 5, 1994 wherein I detail duplicitous and lawless conduct on the part of NYSDEC Region IV staff for the Court."
"Once again, that affidavit was never refuted by the New York State Department of Environmental Conservation, nor could it have been."
"Accordingly, I am formally requesting that that 9 page affidavit from myself to Special Term dated April 5, 1994 and all of its exhibits be made a part of the record that you are reviewing in connection with this above application."
"With respect to those exhibits, at page 265 of Volume I of that Record on Appeal, there is a copy of the decision of Special Term in that matter dated November 18, 1993, which was unsuccessfully appealed from by the New York State Department of Environmental Conservation, herein is stated in relevant part as follows:"
"Premised upon Judge Williams' previous determination that the site at issue may not be mined without the preparation of an Environmental Impact Statement, the issuance of Permit Number 2, for a segmented parcel of the original site may not be permitted, absent completion of an EIS which encompasses the entire parcel of land available to the project sponsor."
"Of direct relevance to this above project, the relevant language in that November 18, 1993 Decision is site at issue," which is this same site."
"Of further relevance to this application is this following language of Special Term concerning the same lawless and duplicitous conduct of the New York State Department of Environmental Conservation that is being employed yet again in connection with this above application, to wit:"
"On May 18, 1993, The Honorable Robert C. Williams issued an exhaustive and thorough opinion which anulled a permit issued to R.J. Valente, Inc. to mine a total of 27.5 acres off Route 351 in Poestenkill, Rensselaer County, without preparation of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA)."
"The above-captioned Article 78 proceedings both challenge yet another determination by the Department of Environmental Conservation which found that no EIS would be required prior to the issuance of a mining permit to Valente to mine a total of 8.4 acres of land at the identical site, again, without preparation of an EIS."
"To the extent that the present litigation is identical to the Article 78 proceeding before Judge Williams, his findings must be deemed conclusive and binding in these proceedings."
"It is readily apparent that the application to mine a smaller portion of the land is a rather transparent attempt to remove the project from consideration as a 'Type I' activity."
"As Judge Williams recognized, any activity which involves the physical alteration of ten or more acres is labeled a Type I activity and presumed to significantly affect the environment with resultant requirement to complete an EIS."
"It is also without doubt that the 8.4 acre parcel and the 27 acres covered by the previous permit are part of a still larger parcel, all of which is susceptible to incremental applications designed to avoid the requirement that the cumulative impact of mining at this site be considered prior to the issuance of any permit."
"The total acreage owned or controlled by the project sponsor is approximately 115 acres."
"The application for the Mined Land Reclamation Permit indicates that the future uses of the site include pasture, residential, wildlife habitat and 'other applicable uses dependent upon future conditions and local laws.'"
"At minimum, this artful language leaves little doubt that the project sponsor has reserved the option to continue to utilize the site as a gravel mine on an ever-increasing scale."
"Such a segmented approach has been specifically rejected (Matter of Save The Pine Bush v. City of Albany, 70 NY2d 193, 205-206).
"Notwithstanding, once again, the Department of Environmental Conservation has knowingly and willfully chosen to turn its back on the New York State Constitution and the New York State Environmental Conservation Law and to resort once again to duplicity, collusion, unlawful segmentaion and artful language to evade the requirements of the New York State Environmental Quality Review Act, in the course of doing so, stripping me of my rights to equal protection of law and due process of law as a citizen of this state, this after I had gone to court several times, including the Appellate Division, to establlsh my rights in the first place in connection with this site."
"With respect to the exhaustive and thorough opinion issued on May 18, 1993 by The Honorable Robert C. Williams which annulled a permit issued to R.J. Valente, Inc. to mine a total of 27.5 acres off Route 351 in Poestenkill, Rensselaer County, without preparation of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA), that decision is to be found at page 313 of Volume I of the Record on Appeal which is a part of your official records and files in connection with this above application."
"I am formally requesting that it be made a part of the record that you are reviewing in connection with this above matter, as it outlines my concerns with this project."
"At page 338 of Volume I of the Record on Appeal which is part of your official records and files in connection with this site, and this present application, is to be found a copy of the Petition submitted to Judge Williams by myself and the other petitioners, wherein all of our concerns with the application were clearly stated."
"I am formally requesting that that Petition and all of its exhibits be made a part of the record that you are reviewing in connection with this segmented application, as my concerns have not changed."
"With respect to my concerns with this site and with this segmented project, at page 581 of Volume II of the Record on Appeal, they are listed in a September 16, 1992 writing that was stamped received by the NYS Department of Law on September 17, 1992."
"I am formally requesting that that writing be made a part of the record that you are reviewing in connection with this above application."
"At page 643 of Volume II of that Record on Appeal submitted to Appellate Division, Third Department by the New York State Department of Environmental Conservation on December 15, 1995, there is a December 28, 1992 writing from myself to DEC Region IV concerning this same site, wherein are listed my concerns with the duplicitous process employed by the Region IV Office of the NYSDEC with respect to this site."
"I am formally requesting that that December 28, 1992 writing from myself to the DEC Region IV Office in connection with this site be made a part of the record in this above matter."
"At page 648 of Volume II of that Record on Appeal, there is a January 26, 1993 writing from myself to the NYSDEC SEQRA Counsel concerning the duplicitous conduct of the NYSDEC Region IV Office concerning the review of Mined Land Reclamation Permits for this same site in the Town of Poestenkill, Rensselaer County, said duplicitous conduct by NYSDEC Region IV staff intended to strip me of equal protection of law and procedural due process of law as a citizen of the State of New York."
"I am formally requesting that that January 26, 1993 writing be made a part of the record you are reviewing in connection with this above matter."
"At page 665 of Volume II of the Record on Appeal which is a part of your official records and files in connection with this above matter, there is a February 8, 1993 writing from myself to Senior Environmental Analyst Louise Inglis King of DEC Region IV concerning this same site."
"I am formally requesting that that February 8, 1993 writing be made a part of the record you are reviewing in connection with this above matter."
"At page 713 of Volume II of the Record on Appeal, there is a February 24, 1993 writing from myself to Associate Environmental Analyst John Feltman of NYSDEC Region IV concerning this site."
"I am formally requesting that a copy of that February 24, 1993 writing be made a part of the record that you are reviewing in connection with this matter."
"At page 860 of Volume II of the Record on Appeal which is part of your official files and records in connection with this above application, there is an eleven (11) page affidavit from myself to Special Term dated October 18, 1993 concerning this same site."
"I am formally requesting that that October 18, 1993 affidavit be made a part of the record you are reviewing in connection with this above application."
"This writing constitutes my public comments in connection with this above Mined Land Reclamation Permit application."
End quotes
All of that was simply blown off by Nancy Baker as follows:
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION RESPONSE TO COMMENTS
DEC #4-3838-00066/00003
FACILITY: Polaro Sand and Gravel
Town of Poestenkill, Rensselaer County
1. Letter from Town of Poestenkill
The Town of Poestenkill submitted a September 10, 2014 letter indicating they had not received any complaints about current operations at the mine site, and they suppoorted issuance of a permit for the applied expansion.
Response:
The letter supports the issuance of the permit and no further comment is required.
End quote
Thus this present request to re-commence, Your Honor, and might I say that this is more than exceedingly tedious in light of the long record of prior judicial action in this matter, which has been simply blown off as inconsequential not only by the New York State Department of Environmental Conservation, but by Assistant Attorney General Marie Chery-Sekhobo on behalf of New York State Attorney General Eric T. Schneiderman and Mr. Andrew Gilchrist.
Respectfully,
Paul R. Plante
CC: New York State Attorney General Eric T. Schneiderman
The Capitol
Albany, N.Y. 12224-0341
Marie Chery-Sekhobo, Of Counsel
Andrew W. Gilchrist,
Tuczinski, Cavalier and Gilchrist, P.C.
54 State Street, Suite 803
Albany, New York 12207