THE PAUL PLANTE STORY

[thelivyjr]

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

DIVISION OF ENVIRONMENTAL REMEDIATION

TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION

CHAPTER 1 GENERAL INFORMATION

1.5 Certifications

(a) All documents, which are prepared in final form in accordance with this guidance for submission to DER for approval, are to be prepared and certified in accordance with the applicable statute and/or regulations identified in section 1.2.

1. Persons preparing and certifying the various work plans and reports identified in Table 1.5 below include:

i. New York State licensed professional engineers, as defined at 6 NYCRR 375-1.2(aj) and paragraph 1.3(b)47;

ii. qualified environmental professionals as defined at 6 NYCRR 375-1.2(ak) and paragraph 1.3(b)49;

iii. remedial parties, as defined at 6 NYCRR 375-1.2(ao) and paragraph 3(b)60; or

iv. site owners, which are the owners of the property comprising the site at the time of the certification.

2. A person who does not meet the definition of a professional engineer or a qualified environmental professional may assist in the conduct of all appropriate investigation or remediation activities in accordance with this document, if such person is under the supervision or responsible charge of a person meeting the definition provided above.

[thelivyjr]

THE ADVERTISER Letters To The Editor

PFOA Saga No. 3 – The “Bug-Out Boogie”

December 23, 2021

As the most inept and slipshod “public health” investigation in the history of slipshod investigations, described by myself in a December 12, 2021 letter to The Honorable Kathy Hochul, Governor of New York State, as a comical, farcical and insulting clown show, comes to a close in Poestenkill, a town that mockingly calls itself “safe,” which it is if you are a polluter, and the DEC, DOH and RCHD get ready for the “Big Bug-Out,” where they pull their tent stakes and clear camp, getting out of town as quick as they can skedaddle, in the latest dose of gibberish we received from DEC on 10 December 2021, titled “Poestenkill Assessment Area, Protecting Poestenkill’s Drinking Water & Investigating Sources of PFOAs,” where we were falsely informed that the DEC and DOH, working with the Rensselaer County Department of Health (RCDOH), are providing this web site to share progress on the agencies’ efforts to ensure the protection of drinking water in Poestenkill, which is a crock given that they didn’t protect our drinking water and never intended to, in the “Summary of Private Well Test Results – Poestenkill Assessment Area,” we see repeated over and over the words “No Further Action” for properties including mine that have been adversely impacted by PFOA or PFOS through no fault of our own, other than trusting Poestenkill, Rensselaer County and the state of New York to actually do their jobs and protect our drinking water.

So what does that mean when the DEC, DOH and RCHD and Poestenkill tell those of us with contaminated wells “No Further Action?”

And the answer means exactly that – we have been abandoned and are on our own with respect to providing potable water for ourselves, don’t call back, they’re too busy, and the word “potable” means safe to drink, and despite what we have been told by the DEC and DOH and Poestenkill, that PFOA levels in Poestenkill do not pose a significant health risk, water with PFOA in it is not safe to drink, and thus is not potable.

Paul Plante, Poestenkill

[thelivyjr]

24 December 2021

Dear Ms. Dawson:

I am 75 years old and I really do not have an ounce of patience for being fed a meal of horsecrap from you about having to file an FOI to find out what statutes, rules, regulations, technical guidance manuals, standard methods, and/or other protocols someone who is described as a "project manager" in a PFOA investigation is following and the very concept that I would have to file a FOI is absurd to an extreme that is so bizarre that it makes me wonder if you are still possessed of your wits.

My request for information follows this message from the DEC, to wit:

For questions about topics related to this investigation, please contact the below:

Source investigation information, DEC project manager, Brittany O'Brien-Drake, 518-402-9672, or by email.

end quotes

Well, Ms. Dawson, that is exactly what I am looking for from this Brittany O'Brien-Drake, and if it was necessary to file a FOI, then why was that information not included with that message from DEC?

What kind of very stupid childish games are you people playing, jerking around people like this?

And you better believe I do expect an answer to that question from you, or Commissioner Seggos.

Very sincerely,

Paul R. Plante, New York State Licensed Professional Engineer

****************************************************************************

On Friday, December 24, 2021, 09:35:56 AM EST, dec.sm.derweb <derweb@dec.ny.gov> wrote:

Mr. Plante,

To access the records you are requesting, it is recommended that you file your request electronically as a FOIL request here: https://newyorkdec.mycusthelp.com/webapp/_rs/(S(4ohqxsyjoeklknguba5fv2f4))/supporthome.aspx

Thank you,

Jennifer R. Dawson
Webmail Coordinator, Division of Environmental Remediation
derweb@dec.ny.gov

-----Original Message-----

From: paul plante
Sent: Thursday, December 23, 2021 4:49 PM
To: dec.sm.derweb <derweb@dec.ny.gov>

Subject: To Brittany O'Brien-Drake re: Algonquin public water supply

To Brittany O'Brien-Drake re: Algonquin public water supply:

Regards the site investigation of the Algonquin school public water supply that you are listed as project manager for, would you please provide me with a list of ALL statutes, rules, regulations, technical guidance manuals, standard methods and/or other protocols that govern the conduct of your investigation.

Thanking you in advance, I remain

Sincerely,

Paul R. Plante, NYSPE

[thelivyjr]

24 December 2021

The Honorable Basil Seggos
Commissioner, NYS Department of Environmental
Conservation
625 Broadway
Albany, New York 12233

RE: Your slipshod farcical clown show of a PFOA investigation in Poestenkill

Dear Commissioner Seggos:

I am a lifelong resident of Rensselaer County in the state of New York, being on my property in Poestenkill for over seventy (70) years now, where I grew up healthy drinking good clean well water, who is licensed as a New York state professional engineer and who is further qualified by examination and experience at the associate level as a public health engineer who was twice commended in writing by then-NYS Health Commissioner Dr. David Axelrod for my integrity in enforcing the Public Health law and sanitary code in Rensselaer County before becoming disabled due to neck injuries suffered from an assault on my person by a backhoe operator while conducting a field investigation of an illegal subdivision in the town of Sand Lake.

I began my career in public health in 1966 as a technician for the state Health Department doing field studies and investigations of sources of pollution, and in all my years of doing investigations, never did I encounter a situation of where a suspect in an investigation of pollution or contamination was allowed by the responsible state agency to do their own investigation of themselves to exonerate themselves as a source of pollution, until this cock-a-mamie, slipshod farce of an investigation of PFOA in Poestenkill being conducted by your department, where we are being told by your department, supposedly the department doing the investigation, that in the special case of Waste Management at the Poestenkill transfer station, a prime suspect for whom your department buried $312,500 worth of penalties for environmental crimes at the Poestenkill transfer station in 1999, that a sample from the water supply well located at the transfer station was collected and analyzed for PFAS compounds in September BY THE OPERATOR of the transfer station, and based on their investigation of themselves, your department, which has already whitewashed and covered over environmental crimes committed by them at the Poestenkill transfer station, burying evidence in a criminal investigation, which is obstruction of justice as well as denial of honest services, does not now consider them to be a source, which has me asking you just what kind of bizarre horsecrap are you trying to feed us, and why.

In your arrogance, do you think we are stupid?

To close, I want to know from you who are a public servant, exactly what statutes, rules, regulations, technical guidance manuals for conducting investigations, standard methods and/or other protocols give you as DEC Commissioner the authority, jurisdiction or discretion to deputize or authorize Waste Management to conduct its own investigation of itself as a source of the PFOA or PFOS that is in my well, as well as the water supply of the Algonquin school public water supply, a public water supply regulated by the DOH and RCHD, this as the DEC is alleged to be looking for the source of the PFOA, which at this point might well be in Outer Mongolia or Outer Space or maybe the Twilight Zone, which is where your department seems to be located these days, out there somewhere in Cloud Cuckoo Land.

And I would like that answer from you in a very timely fashion.

Respectfully,

Paul R. Plante, P.E.

[thelivyjr]

Wood Realty Tr. v. N. Storonske Cooperage

Appellate Division of the Supreme Court of New York, Third Department

Jul 25, 1996

229 A.D.2d 821 (N.Y. App. Div. 1996)

Appeal from the Supreme Court, Rensselaer County (Ceresia, Jr., J.).

Casey, J.

Plaintiff, the owner of three apartment houses located near defendants' commercial property, commenced this action in 1994 to recover damages arising out of the contamination of the three wells that serve plaintiff's apartment houses.

It is undisputed that defendants' business operation resulted in the contamination of the groundwater under defendants' property and that testing of neighboring wells, including those which serve plaintiff's apartment houses, revealed varying levels of similar contamination.

The groundwater contamination was confirmed in 1985.

In October 1986 plaintiff was informed by the Rensselaer County Department of Health that low levels of contamination had been discovered in plaintiff's wells and that although the contamination did not then pose a significant health risk, the wells would be monitored on a continuous basis.

The contamination of plaintiff's wells continued at low levels, and in May 1988 defendants offered to provide bottled water to plaintiff's tenants.

Plaintiff initially refused the offer, but after the tenants indicated that they wanted bottled water, plaintiff accepted defendants' offer.

The bottled water was thereafter provided at no cost to plaintiff or its tenants.

Although monitoring of plaintiff's wells continued to reveal low levels of contamination, defendants stopped paying for the bottled water in early 1994.

Plaintiff arranged to continue bottled water for its tenants and thereafter commenced this action against defendants to recover damages arising out of the contamination of its property.

Plaintiff's complaint is based upon allegations of negligence, nuisance and trespass.

Defendants' answer includes an affirmative defense based on the three-year Statute of Limitations contained in CPLR 214-c.

After issue was joined, defendants moved for summary judgment dismissing the complaint as untimely or, in the alternative, for failure to state a cause of action due to the absence of any damages.

Plaintiff cross-moved for leave to amend its complaint to add a breach of contract cause of action.

Supreme Court denied the cross motion, granted defendants' motion and dismissed the complaint as untimely.

Plaintiff appeals.

Although leave to amend pleadings should be freely given, it will be denied when the claim to be added by the amendment is legally insufficient (see, e.g., Dodge v. Victory Mkts., 199 A.D.2d 917, 919-920).

Consideration is, of course, an essential element of a contract, but so long as "something of `real value in the eye of the law' was exchanged" the adequacy of the consideration is not a proper subject of judicial inquiry (Apfel v Prudential-Bache Sec., 81 N.Y.2d 470, 476).

Discontinuance of a pending action, execution of a release or a promise to forego future litigation can constitute valid consideration (see, Williamsville Cent. School Dist. v. New York State Urban Dev. Corp., 142 A.D.2d 981, 982).

There are, however, no allegations in this case of any discontinuance, release or promise to forego future litigation given by plaintiff in return for defendant's promise to supply bottled water.

That plaintiff did in fact forebear from bringing suit for a period of time is insufficient, in and of itself, to constitute valid consideration (see, Strong v. Sheffield, 144 N.Y. 392).

We conclude, therefore, that the allegations of plaintiff's proposed amended complaint are legally insufficient to establish the breach of an express contract based upon defendant's failure to continue providing bottled water.

Nevertheless, we are of the view that Supreme Court erred in denying plaintiff's cross motion.

As the Court of Appeals explained in Bradkin v. Leverton (26 N.Y.2d 192, 196-197): "Quasi contracts are not contracts at all, although they give rise to obligations more akin to those stemming from contract than from tort."

"The contract is a mere fiction, a form imposed in order to adapt the case to a given remedy."

* * *

"Briefly stated, a quasi-contractual obligation is one imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. "

"The law creates it, regardless of the intention of the parties, to assure a just and equitable result."

* * *

"`The obligation implied under such circumstances * * * is such as justice would dictate, and must conform to what the court may assume would have been the agreement of the parties, if the situation had been anticipated and provided for'" (quoting Dermott v. State of New York, 99 N.Y. 101, 109 [citations omitted]).

The allegations of the proposed amended complaint establish that defendants did not promise to provide bottled water for any particular term and plaintiff did not promise to forebear bringing an action.

Nevertheless, defendants did provide bottled water for nearly six years as a remedy for the low level of contamination revealed by the monitoring of plaintiff's wells.

The allegations are sufficient to give rise to an inference that plaintiff was satisfied with its tenants' receipt of bottled water as an appropriate remedy for the contamination of its wells and, therefore, elected not to pursue an action for damages against defendants.

During the period that defendants provided the bottled water as a remedy for the contamination of plaintiff's wells caused by defendants' pollution of the groundwater, the Statute of Limitations ran on plaintiff's action for damages caused by the contamination.

As a result of the parties' conduct, plaintiff sustained a detriment in the loss of its remedy at law and defendants gained a benefit in their avoidance of potential liability for damages caused by the contamination of plaintiff's wells.

There is at least a question of fact as to whether the value of this detriment/benefit far outweighed the value of the bottled water provided by defendants so as to establish unjust enrichment, which is generally recognized as essential to an action based upon quasi contract (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388).

We conclude that in the circumstances of this case plaintiff's proposed amended complaint states a viable cause of action based upon quasi contract (see, Nelson Agency v Gravdahl, 183 A.D.2d 1037) and, therefore, plaintiff's cross motion for leave to amend the complaint should have been granted.

With regard to the dismissal of plaintiff's causes of action based upon negligence, nuisance and trespass, it is undisputed that the claims were not timely interposed (see, CPLR 214-c), and plaintiff's waiver argument is meritless (see, General Obligations Law § 17-103).

We note that defendants' conduct appears to give rise to an issue of whether defendant should be barred from asserting the Statute of Limitations on equitable estoppel grounds (see generally, Simcuski v. Saeli, 44 N.Y.2d 442, 448-449).

Neither party, however, has addressed the issue.

In any event, we have taken into account the relevant equitable considerations in finding a viable cause of action based on quasi contract.

As a final matter, we note that we have not attempted to differentiate among the various defendants with regard to potential liability because the parties have not done so at this stage of the proceeding.

White, J.P., Yesawich Jr., Peters and Spain, JJ., concur.

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiff's cross motion; cross motion granted; and, as so modified, affirmed.

[thelivyjr]

SAMPLING, ANALYSIS, AND ASSESSMENT OF PER- AND POLYFLUOROALKYL SUBSTANCES (PFAS)

Under NYSDEC’s Part 375 Remedial Programs

June 2021

Objective

New York State Department of Environmental Conservation’s Division of Environmental Remediation (DER) performs or oversees sampling of environmental media and subsequent analysis of PFAS as part of remedial programs implemented under 6 NYCRR Part 375.

To ensure consistency in sampling, analysis, reporting, and assessment of PFAS, DER has developed this document which summarizes currently accepted procedures and updates previous DER technical guidance pertaining to PFAS.

Applicability

All work plans submitted to DEC pursuant to one of the remedial programs under Part 375 shall include PFAS sampling and analysis procedures that conform to the guidelines provided herein.

As part of a site investigation or remedial action compliance program, whenever samples of potentially affected media are collected and analyzed for the standard Target Analyte List/Target Compound List (TAL/TCL), PFAS analysis should also be performed.

Potentially affected media can include soil, groundwater, surface water, and sediment.

Based upon the potential for biota to be affected, biota sampling and analysis for PFAS may also be warranted as determined pursuant to a Fish and Wildlife Impact Analysis.

Soil vapor sampling for PFAS is not required.

Field Sampling Procedures

DER-10 specifies technical guidance applicable to DER’s remedial programs.

Given the prevalence and use of PFAS, DER has developed “best management practices” specific to sampling for PFAS.

As specified in DER-10 Chapter 2, quality assurance procedures are to be submitted with investigation work plans.

Typically, these procedures are incorporated into a work plan, or submitted as a stand-alone document (e.g., a Quality Assurance Project Plan).

Quality assurance guidelines for PFAS are listed in Appendix A - Quality Assurance Project Plan (QAPP) Guidelines for PFAS.

Field sampling for PFAS performed under DER remedial programs should follow the appropriate procedures outlined for soils, sediments or other solids (Appendix B), non-potable groundwater (Appendix C), surface water (Appendix D), public or private water supply wells (Appendix E), and fish tissue (Appendix F).

Appendix E - Sampling Protocols for PFAS in Private Water Supply Wells

General

The objective of this protocol is to give general guidelines for the collection of water samples from private water supply wells (with a functioning pump) for PFAS analysis.

The sampling procedure used should be consistent with Sampling Guidelines and Protocols – Technological Background and Quality Control/Quality Assurance for NYS DEC Spill Response Program – March 1991 (http://www.dec.ny.gov/docs/remediation_ ... psect5.pdf),
with the following limitations.

Laboratory Analysis and Container

Drinking water samples collected using this protocol are intended to be analyzed for PFAS by EPA Method 537, 537.1, 533, or ISO Method 25101.

The preferred material for containers is high density polyethylene (HDPE).

Pre-cleaned sample containers, coolers, sample labels, and a chain of custody form will be provided by the laboratory.

Equipment

Acceptable materials for sampling include stainless steel, HDPE, PVC, silicone, acetate, and polypropylene.

Additional materials may be acceptable if pre-approved by New York State Department of Environmental Conservation’s Division of Environmental Remediation.

No sampling equipment components or sample containers should come in contact with aluminum foil, low density polyethylene, glass, or polytetrafluoroethylene (PTFE, Teflon™) materials (e.g. plumbers tape), including sample bottle cap liners with a PTFE layer.

Equipment Decontamination

Standard two step decontamination using detergent (Alconox is acceptable) and clean, PFAS-free water will be performed for sampling equipment.

All sources of water used for equipment decontamination should be verified in advance to be PFAS-free through laboratory analysis or certification.

Sampling Techniques

Locate and assess the pressure tank and determine if any filter units are present within the building.

Establish the sample location as close to the well pump as possible, which is typically the spigot at the pressure tank.

Ensure sampling equipment is kept clean during sampling as access to the pressure tank spigot, which is likely located close to the ground, may be obstructed and may hinder sample collection.

Prior to sampling, a faucet downstream of the pressure tank (e.g., washroom sink) should be run until the well pump comes on and a decrease in water temperature is noted which indicates that the water is coming from the well.

If the homeowner is amenable, staff should run the water longer to purge the well (15+ minutes) to provide a sample representative of the water in the formation rather than standing water in the well and piping system including the pressure tank.

At this point a new pair of nitrile gloves should be donned and the sample can be collected from the sample point at the pressure tank.

Sample Identification and Logging

A label shall be attached to each sample container with a unique identification.

Each sample shall be included on the chain of custody (COC).

Quality Assurance/Quality Control

• Immediately place samples in a cooler maintained at 4 ± 2º Celsius using ice

• Collect one field duplicate for every sample batch, minimum 1 duplicate per 20 samples.

The duplicate shall consist of an additional sample at a given location

• Collect one matrix spike/matrix spike duplicate (MS/MSD) for every sample batch, minimum 1 MS/MSD per 20 samples.

The MS/MSD shall consist of an additional two samples at a given location and identified on the COC

• If equipment was used, collect one equipment blank per day per site and a minimum 1 equipment blank per 20 samples.

The equipment blank shall test the new and decontaminated sampling equipment utilized to obtain a sample for residual PFAS contamination.

This sample is obtained by using laboratory provided PFAS-free water and passing the water over or through the sampling device and into laboratory provided sample containers.

• A field reagent blank (FRB) should be collected at a rate of one per 20 samples.

The lab will provide a FRB bottle containing PFAS free water and one empty FRB bottle.

In the field, pour the water from the one bottle into the empty FRB bottle and label appropriately.

• Request appropriate data deliverable (Category B) and an electronic data deliverable

• For sampling events where multiple private wells (homes or sites) are to be sampled per day, it is acceptable to collect QC samples at a rate of one per 20 across multiple sites or days.

Documentation

A sample log shall document the location of the private well, sample point location, owner contact information, sampling equipment, purge duration, duplicate sample, visual description of the material, and any other observations or notes determined to be appropriate and available (e.g. well construction, pump type and location, yield, installation date).

Additionally, care should be performed to limit contact with PFAS containing materials (e.g. waterproof field books, food packaging) during the sampling process.

Personal Protection Equipment (PPE)

For most sampling Level D PPE is anticipated to be appropriate.

The sampler should wear nitrile gloves while conducting field work and handling sample containers.

Field staff shall consider the clothing to be worn during sampling activities.

Clothing that contains PTFE material (including GORE-TEX®) or that have been waterproofed with PFAS materials should be avoided.

All clothing worn by sampling personnel should have been laundered multiple times.

[thelivyjr]

For Release: Tuesday, October 5, 2021

DEC Releases New Guidance to Regulate PFOA, PFOS, and 1,4-Dioxane in State Waters - Guidance Builds on State's Nation-Leading Actions to Protect Public Health and the Environment and Regulate Emerging Contaminants

Draft Technical and Operational Guidance Series Available for Public Review and Comment through Nov. 5, 2021

New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos today released new water quality guidance values that will advance the State's regulation of the emerging contaminants Perfluorooctanoic acid (PFOA), Perfluorooctanesulfonic acid (PFOS), and 1,4-Dioxane. DEC established the new guidance values in three draft Technical and Operational Guidance Series (TOGS) documents, which are now available for a 30-day public review and comment period.

DEC is accepting comments until Nov. 5, 2021.

The new guidance values support the State's ongoing efforts to safeguard public health, prevent exposure to emerging contaminants, and ensure New Yorkers have access to clean drinking water.

Commissioner Seggos said, "New York has been at the forefront of taking actions to reduce human and environmental exposure to emerging contaminants like PFOA, PFOS, and 1,4-Dioxane."

"Today, DEC is bolstering the strict levels adopted by the Department of Health to protect our drinking water by issuing guidance values for PFOA, PFOS, and 1,4-Dioxane for ground and surface waters."

"These guidance values will protect the health of our communities and the environment by helping to prevent these emerging contaminants from entering our drinking water supplies."

The proposed guidance values released today are:

Proposed Guidance Values

Chemical DOH - Finished Drinking Water DEC - Raw Water Source
Adopted MCLs Human Health
PFOA 10 ppt 6.7 ppt
PFOS 10 ppt 2.7 ppt
1,4-Dioxane 1 ppb 0.35 ppb

Set lower than the State's maximum contaminant levels (MCLs) for PFOA, PFOS, and 1,4-Dioxane, these ambient guidance values protect source waters and provide an extra margin of safety to complement the drinking water MCLs by ensuring they are not exceeded, which could result in costly treatment for the regulated community.

State Department of Health (DOH) Commissioner Dr. Howard Zucker said, "New York State has adopted among the most protective drinking water quality standards and requirements for testing, notification and remediation for emerging contaminants found nationwide."

"Our research and efforts to safeguard drinking water will be further enhanced by the Department of Environmental Conservation's move to regulate these compounds at their source, providing even more confidence in the water quality that reaches your tap."

In July 2020, New York formally adopted among the nation's lowest maximum contaminant levels (MCLs) for drinking water for PFOA and PFOS at 10 parts per trillion, and the first national standard for 1,4-Dioxane at 1 part per billion.

The MCLs were promulgated by the State's Drinking Water Quality Council, a body of water quality experts and scientists charged with setting limits in absence of federal standards for these emerging chemicals that have been pervasive in drinking water systems nationwide.

While the MCLs adopted by the DOH provide protection for finished drinking water, DEC's proposed guidance values will provide complementary protection of ambient waters used as drinking water sources.

These proposed guidance values also provide protection for aquatic life.

In 2016, New York State established the Water Quality Rapid Response Team, led by DEC and DOH, to quickly investigate water contamination reports across New York and take corrective action to address these contamination issues.

This Water Quality Rapid Response Team has taken unprecedented action to investigate and clean up PFAS contamination and to ensure New Yorkers have access to clean water.

To support this effort, DEC works with DOH and numerous entities, including local health departments, drinking water providers and authorities, and federal, state, county, and municipal governments to protect and clean up groundwater.

[thelivyjr]

December 25, 2021

The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224

RE: PFOA in Poestenkill

Dear Governor Hochul:

I am writing to you on behalf of children at the Algonquin Middle School in Poestenkill who have no voice of their own, as well as myself and other residents of Poestenkill affected by PFOA or PFOS in their drinking water pursuant to §9.1 of Article I, the Bill of Rights of the New York State Constitution, "No law shall be passed abridging the rights of the people peaceably to assemble and to petition the government," as a respected elder in my community of Poestenkill, Rensselaer County, where I have resided for over seventy (70) years, and who am a New York State licensed professional engineer further qualified by examination as a public health engineer, a person who applies engineering principles for the detection, evaluation, control and management of those factors in the environment which influence the public's health, at the associate level who was twice commended in writing by then-state Health Commissioner Dr. David Axelrod for my integrity in enforcing the New York State Public Health Law and Sanitary Code in the Rensselaer County Health District, which health district includes not only the town of Poestenkill, but Public Water Supply NY4117257, a Non-transient non-community water system serving 1000 persons at the Algonquin Middle School in Poestenkill, founded 1967, which is a Public Water Supply pursuant to Part 5 of the State Sanitary Code regulated by the state Department of Health and the Rensselaer County Department of Health, in your capacity as Governor of the State of New York pursuant to §3 of Article IV of the New York State Constitution, "the governor shall take care that the laws are faithfully executed," to inquire of you, and to have you explain to us why an investigation into how the wellfield of regulated Public Water Supply NY4117257, a Non-transient non-community water system serving 1000 persons at the Algonquin Middle School in Poestenkill, became contaminated by PFOA, despite the provisions of the State Sanitary Code, is being directed not by any public health personnel qualified to conduct such Sanitary Code investigations, but by a lobbyist and outside political agitator named Judith Enck, who does not reside in the affected zone, is not herself impacted by PFOA or PFOS, who holds no public health credentials, who is not an elected public official in Poestenkill with accountability to the public, nor is she anything in the Rensselaer County Health District with accountability to the public, nor is she anything in the state Department of Health with accountability to the public.

We specifically want to know from you who it was that gave her authorization to give permission to Waste Management, operators of the DEC-regulated Poestenkill transfer station, a prime suspect in that contamination as it was sited by the DEC in the watershed of Public Water Supply NY4117257, a Non-transient non-community water system serving 1000 persons at the Algonquin Middle School in Poestenkill with no thought whatsoever to how the wastewater discharge from the transfer station would affect groundwater resources in that area that in turn made for the water supply of Public Water Supply NY4117257, a Non-transient non-community water system serving 1000 persons at the Algonquin Middle School in Poestenkill, to first conduct its own investigation into whether its operations might have caused that contamination, and then based on its own finding, exonerate itself as a source.

Section 5-1.12 of the State Sanitary Code, entitled "Water quality for existing sources of water supply" provides in (a) that whenever the supplier of water determines or is advised by the State that one or more of the MCLs set forth in this Subpart are or may be exceeded, or that a change in the character of the watershed has been observed which may affect water quality, the supplier of water shall notify the State and do the following:

(1)undertake a study to determine the cause or causes of such conditions, independent of known or anticipated treatment technology;

(3) initiate water sampling as needed to delineate the extent and nature of the cause of concern;

(4) investigate all or part of the watershed to verify any existing or potential changes in the character of the sources of water supply; and

(5) submit a written report to the State within 30 days of the onset of the foregoing conditions summarizing the findings outlined in paragraphs (1) through (4) of this subdivision.

end quotes

When the regulatory language of that section of the state Sanitary Code is quite clear and unambiguous as to how this matter should have been handled and by whom, how is it that instead control of the investigation has been turned over to Judith Enck, who has in turn allowed Waste Management to clear itself by conducting its own investigation of itself and then exonerating itself as a source?

That is not a rhetorical question, Madam Governor, it is a question to which we expect a serious answer.

Section 5-1.12 of the State Sanitary Code, entitled "Water quality for existing sources of water supply" provides in (b) that the State, meaning the state health commissioner, may require the supplier of water to conduct sanitary surveys and to conduct water sampling related to watersheds and ground water aquifers which are sources of water supply to identify and evaluate the significance of existing and potential sources of pollution and to report the results to the State, and also, sanitary surveys shall be used to evaluate the adequacy of the public water system, the source or sources of water supply and the water treatment plant to produce a potable water, which is water safe to drink.

Again, given that clear and unambiguous regulatory language, why are we seeing this investigation being intentionally steered off into the weeds by this Judith Enck who has no authority in this matter and thus no accountability to any of those students without a voice in the matter for whom I am advocating as a responsible elder in the community, as well as myself and the other impacted residents of Poestenkill who have now been deprived of access to potable water through no fault of their own?

That is another serious question we require an answer to.

Thanking you in advance for your prompt attention to this serious matter, I remain

Respectfully,

Paul R. Plante, NYSPE

[thelivyjr]

"Hochul hallmarks must be ethics, transparency, respect"

Judith Enck, Albany, New York Times Union

Aug. 24, 2021

In 2009, I was appointed by President Barack Obama to serve as EPA regional administrator.

Soon after I started, I was invited to the White House to attend an orientation for new Obama appointees.

One of the first speakers was a lawyer from the White House counsel’s office who made it clear to us that from the start the Obama administration created a work culture based on ethical governing.

Ethical transgressions would not be tolerated.

As political appointees, we would feel political pressure on issues that reached our desks.

If we ever felt pressured on anything related to ethics, we were urged to call him to get his guidance.

He shared his office number, home number and five other ways to reach him.

I sat there thinking that, in 11 years in state government, I never heard that particular speech.

Gov. Kathy Hochul can change the culture in Albany.

She has said she will “work like hell” for the people of the state.

I believe she will, but she also needs to transform the gubernatorial staff and state agencies to create the most ethical and transparent administration we have ever seen.

Early attention will be on the agency commissioners.

It is important to also focus one rung down, and engage the assistant commissioners and press staff.

They have endured years of hell, interacting with Gov. Andrew M. Cuomo and his often unpleasant staff.

They need to now know that ethics, transparency and respectful treatment of colleagues, state legislators and the public, especially those with whom you disagree, will be the hallmarks of the Hochul administration.

I never bought into the story line that the toxic work environment in the Cuomo administration was inevitable because everyone was working hard and on call 24/7.

I served in senior positions in state and federal government and will match my work ethic with anyone in the Cuomo administration.

During my government service, we worked hard and long hours, while treating others with respect.

We had many disagreements, but you listened to people with the intent to hear.

Not the intent to destroy.

Here are a few tips for our new governor.

Many tough issues await you.

COVID, racial equality, criminal justice, refugee resettlement, education.

All of them need your energy but you first need to get smart, capable and ethical public servants who will work to solve these problems.

Don’t fire everyone who acted like a jerk in the past 10 years.

If they are smart, ethical and hardworking, keep them so you have more institutional memory and continuity.

Require all state employees to take anti-harassment training and ethics training.

Have your lawyer give them the ethics speech that the Obama lawyer gave to me.

We need an ethics cop on the beat.

The Joint Commission on Public Ethics needs an extreme makeover.

Advise press officers to stop yelling at reporters.

And return their calls in a timely fashion.

Fix the freedom of information backlog and allow the agency FOIL officers to do their jobs.

Act like the public has a right to know.

The governor’s office should not have to sign off on every little FOIL request.

Don’t hire mean people.

We are tired of them.

And for the love of God, get serious about climate change.

Extreme heat, sea level rise, flooding and wildfires are causing unprecedented and expensive problems.

New York’s indigenous energy resources are wind, water, solar and geothermal.

Let’s get off fossil fuels while building a clean energy future.

Public service is an honor.

There are many dedicated people working in state government.

Win them over.

Inspire young people to enter public service.

Create your own new tone.

Out with toxic work cultures and in with competent, ethical and inspired leadership.

https://twitter.com/enckj/status/143014 ... 39?lang=ca

[thelivyjr]

"Lobbyists helped Hochul raise $10M. What are they getting back?" - Governor's fundraising marathon leaned on powerful firms with deep-pocketed clients"

Chris Bragg, Albany, New York Times Union

Updated: Dec. 24, 2021 1:58 p.m.

ALBANY — At a press conference last month, Gov. Kathy Hochul was asked about a sensitive subject: her heavy reliance on Albany’s top lobbyists to raise campaign funds, even as those firms and individuals seek action from her administration.

“My message to anyone who wants to support me is very clear: 'Thank you for investing in good government,’" Hochul responded.

"That's it.”

After assuming the governorship in late August, Hochul raised funds at among the fastest clips in state history — $10 million in three months.

And at least one interest group heard a different message.

On Dec. 8, Hochul attended a fundraiser arranged by the Manhattan law firm Feuerstein Kulick, a major player in the expanding field of cannabis law.

The firm advises companies on winning licenses from state governments across the country.

New York has yet to select the companies that will win potentially lucrative licenses to sell recreational marijuana.

An email obtained by the Times Union indicates that one week before the fundraiser, Feuerstein Kulick attorney Nancy Baynard encouraged cannabis clients to donate heavily, stating that the firm was in touch with the “director of finance for Hochul’s administration/campaign.”

“From our conversations with lobbyists in our network, participating in an event like this could provide many of our clients with access to the governor’s staff throughout the (licensing) application process," Baynard wrote.

"This is obviously quite valuable to application clients such as yourselves."

"In addition to providing access to the governor’s staff, this fundraiser provides us invaluable opportunity to educate Kathy Hochul.”

“We need to raise $100,000 for the event, and we believe keeping the event small will maximize our clients’ time with the governor, so we’re hoping that clients would be willing to donate $10,000,” the attorney continued.

“We need to get back to Gov. Hochul’s staff as soon as possible with an indication as to our ability to deliver the requested funds.”

From the email, it’s not clear which lobbying firms were advising Feuerstein Kulick that campaign donations could generate access to Hochul’s government staff.

The Dec. 8 fundraiser was held at the Vandy Club, a third-floor lounge overlooking Grand Central Station in midtown Manhattan that's available exclusively to tenants of the recently built 93-story skyscraper there.

The Vandy Club is also where the major lobbying and law firm Greenberg Traurig, which rents office space in the building, had its own fundraiser for Hochul.

Greenberg lobbyist Lynelle Bosworth, who hosted a panel discussion this summer on the state's cannabis application process featuring two Feuerstein Kulick attorneys, declined to say whether her firm had a role in the Dec. 8 fundraiser.

A spokeswoman for the law firm later said Greenberg played no role in that event.

Feuerstein Kulick co-founder Mitch Kulick, who heads his firm's cannabis practice and is a former attorney in Greenberg's Manhattan office, declined to answer questions; Hochul's campaign would not say how it gained access to the event space.

Hochul's campaign said that, contrary to what's suggested in the the email, members of her government staff did not help set up the Dec. 8 fundraiser.

"In keeping with Gov. Hochul's commitment to maintain high ethical standards, fundraising events are organized and attended solely by campaign staff members, regardless of what outside parties may incorrectly indicate," said campaign spokesman Jerrel Harvey.

"Consistent with all fundraising activities, members of the campaign's staff arranged an event at the Vandy Club on Dec. 8."

When major lobbying firms have sought to have intimate fundraisers, Hochul's campaign has requested they commit to raising even more — $250,000 — for events where Hochul appears in person, according to people with knowledge of the events.

The lobbying firms raise the money from their clients, who then attend the events.

They are often exclusive to the lobbying firm and those clients, who gain a few minutes interacting with the governor.

On her first day in office, Hochul said she wanted to make New Yorkers "believe in their government again" and change “the culture of Albany" through ethics reforms and more.

She also faced the prospect of a difficult 2022 Democratic primary challenge from Attorney General Letitia James.

Hochul chose to build a massive campaign war chest that could scare off competition, aiming to raise $10 million by year's end.

In doing so, Hochul accelerated the long-existing practice of campaigns outsourcing fundraising to lobbyists: At least eight firms with major Albany presence held high-dollar events between August and October.

The fundraising helped establish Hochul as the clear favorite in the primary; James abruptly dropped out of the gubernatorial race on Dec. 9.

As she has aggressively raised those funds, Hochul is also overseeing state government.

Those dual priorities can create awkward overlaps in timing, such as a day in October when Hochul announced $25 million in grants to nonprofits.

That same day, she held an event with potential campaign donors organized by the nonprofit that had lobbied for those funds.

Now, Hochul must decide whether to sign or veto many bills of interest to the lobbying firms that aided her.

Four months into her tenure, two vetoes she has already issued give a flavor of how those firms seek to exert influence.

The vetoes came soon after those firms had held Hochul fundraisers.

Based on a comparison of the firms' memos opposing the bills and Hochul's subsequent veto messages, the lobbyists' messages were heard.

Though many of Hochul's early donors won’t be known until a filing deadline in January, some political action committees have recently disclosed their giving, and the limited sample shows $101,000 donated by interests favoring the two vetoes that Hochul issued.

Hochul's campaign declined to identify the campaign donors at specific lobbying firm events, and whether those donors ever spoke to the governor about the two bills that she rejected.

"Gov. Hochul has acted on 286 bills since being sworn into office four months ago, with 260 signed into law and 26 vetoed to date," her government press secretary Hazel Crampton-Hays said Monday.

(Hochul subsequently signed several more bills last week.)

"We welcome the views of different advocacy groups on pieces of legislation, but every decision is made by the governor and her team based on the facts and what is best for New Yorkers."

"No donation has any influence on any government decisions, and we strongly reject any implication otherwise."

Hochul has at times made decisions contrary to the interests of donors and lobbyists that held fundraisers.

Privately, some lobbyists say the fundraising is geared not towards a specific legislative outcome, but rather a means of building goodwill as they press for access and careful consideration of their efforts.

Occasionally — as in the Feuerstein Kulick email — such typically quiet wishes can be heard out loud.

A 'duplicative' office

New Yorkers pay some of the highest utility bills in the country.

Earlier this year, the Legislature passed a bill that would have created the Office of the Utility Consumer Advocate, intended to give ratepayers a greater voice in legal and regulatory proceedings such as those considering proposed rate hikes.

Lobbyist William Crowell issued an opposition memorandum on behalf of his client, Energy Coalition New York, that argued the creation of the additional state-funded office was "duplicative and unnecessary."

On Nov. 8, Hochul vetoed the bill, and called the proposed new office "duplicative."

In her veto message, the governor wrote the new office “would establish a superfluous construct that is duplicative of existing state programs and services."

She also said the new office would be “redundant.”

Hochul's veto message bore similarities to one written by former Gov. Andrew M. Cuomo in 2019, when the bill first passed both legislative houses.

The first three sentences of both documents are nearly identical, and some other passages are paraphrased.

Cuomo had written in 2019 that “the provisions of this bill would be redundant to services for residential customers that are already provided by the state.”

Records show that Crowell lobbied the respective staffs of Cuomo and Hochul concerning the bill two years apart, ahead of both vetoes.

He is of counsel at the major lobbying firm Dickinson & Avella, which held a Hochul fundraiser on Oct. 26, less than two weeks before the second veto.

He doubles as founder and executive director of Energy Coalition New York, which consists of seven New York gas and electric utilities that collectively pay Dickinson & Avella about $14,600 monthly.

Crowell had used the word “duplicative” in memos dating back to 2014, a year after the bill was first introduced.

In his memo this year, he also quoted the “redundant” line from Cuomo’s 2019 veto.

Crowell has lobbied for business interests for over two decades, once serving as an Albany lobbyist for Enron — the notorious Texas-based energy company that declared bankruptcy 20 years ago this month — while working at a different lobbying firm.

He declined to say whether Energy Coalition members attended the Oct. 26 fundraiser or spoke to Hochul about the bill.

Another firm that held a Hochul fundraiser this fall, Hinman Straub, also lobbied Hochul’s office against the Utility Consumer Advocate bill on behalf of Consolidated Edison, another Energy Coalition member.

Before the veto, Hochul’s campaign received $2,500 from National Fuel Gas New York, a member of the Energy Coalition.

On Oct. 22, another member, National Grid, donated $5,000.

She received $3,000 from AT&T, whose lobbying firm also pressed Hochul’s office to reject the bill.

AARP, the 38-million member organization that represents Americans over age 50, has long lobbied in favor of the bill.

Its Albany lobbyist, William Ferris, said a million New Yorkers are at least 60 days behind on their utility bills, with past-due payments adding up to around $1 billion.

“We have a billion-dollar problem,” Ferris said.

“When that (collection) process unfolds, what voice will be there for consumers?”

AARP does not have a political action committee that gives campaign donations in New York, Ferris said.

Bronx Assemblyman Jeffrey Dinowitz, the Democrat who sponsored the bill, said the proposed office was not duplicative of other government entities.

He noted that while consumers are ostensibly represented by the Public Service Commission and an office within the Department of State, neither entity is able to act solely on behalf of consumer interests.

“The reasoning behind the veto is just nonsense,” Dinowitz said.

“ ... The Utility Consumer Advocate office would do something no other (New York) office does, and almost every other state has one.”

Dinowitz believes Hochul's veto was the result of a busy governor being ill-advised by staff — probably a holdover from Cuomo’s administration, he said, judging from the similarities in the veto messages.

In 2019, Crowell had reported lobbying Rebecca Wood, a deputy special counsel in Cuomo's office who holds the same title in Hochul's administration.

The lobbyist declined to say whom he lobbied on the bill in 2021.

Softening the blow for consumer advocates, on the same day Hochul issued the veto she signed two less sweeping bills meant to protect residential utility customers.

Unlike the bill she vetoed, there was relatively little lobbying on the two she signed.

Dinowitz wants Hochul’s campaign well-funded to take on a Republican opponent next November.

He said large contributors are likely looking for a seat at the table, not a quid pro quo.

“I assume they think they at least get easier access,” Dinowitz said.

“There are a lot of businesses and other groups that donate money, and I don’t think they think they’re getting anything concrete in return — but (they) want to be part of the whole conversation.”

Child health bill

When Greenberg Traurig held its Hochul fundraiser on Oct. 28, the firm spent $13,700 on food and drinks and $400 on a photographer, according to campaign finance records.

A week later, Hochul vetoed a bill of concern to a Greenberg client, the New York Health Plan Association, which represents health insurance companies that provide managed care — insurance plans in which patients agree to visit only certain doctors and hospitals and the cost is monitored by a managing company.

Around the time of the Greenberg fundraiser, a number of the firm's clients donated to Hochul, as did members of the Health Plan Association, including $7,500 from MVP Health Care on Oct. 27.

In September, another member, Empire BlueCross BlueShield, donated $35,000.

The Legislature had passed a bill prohibiting insurance companies administering the Child Health Plus program — a state-sponsored health insurance plan for low-income children — from requiring that participating doctors also sign up for the commercial health care network operated by the insurer.

The bill’s sponsors argued that if the legislation passed, families of uninsured children would have a greater choice of pediatricians, and that insurance providers were using the taxpayer-funded program as “bait” for their profit-making activities, forcing doctors that want to care for uninsured children to participate in the insurer's health care network.

A Health Plan Association opposition memo, however, argued that the measure was a “provider protection bill that will result in less choice for health plan members.”

And Hinman Straub issued a memo on behalf of Empire BlueCross that argued the bill allowed doctors "to pick and choose which programs they wish to participate in based on a product’s reimbursement rates."

On Nov. 3, after both Hinman Straub and Greenberg Traurig held their fundraisers, Hochul vetoed the bill — making arguments similar to those pushed by the Health Plan Association and Hinman Straub, as well as others they hadn't made.

Hochul wrote that allowing doctors to "favor participation only in plans with higher reimbursement" rates would leave children with "fewer health care options."

Himnan Straub lobbied against the bill on behalf of four clients, including Empire BlueCross; a firm representing MVP Health Care also reported lobbying Hochul’s office.

Greenberg Traurig reported lobbying Hochul’s office on several bills for the Health Plan Association this fall, but did not lobby Hochul on the child health bill, the firm says.

UnitedHealth Group, another Health Plan Association member, has given Hochul $27,500.

The Health Plan Association itself donated $5,000 to Hochul after the veto, and had previously given $1,000.

Notably, Hochul signed a bill on Oct. 8 opposed by the Health Plan Association.

The measure mandates coverage for ostomy supplies, needed after a life-saving procedure allowing bodily waste to pass through into a bag on the outside of the body, for the Child Health Plus program.

Greenberg Traurig lobbied Hochul's office on behalf of the Health Plan Association, and Hinman Straub and MVP also lobbied her office.

Since 2019, Democrats have held majorities in the Assembly and Senate, and the Legislature has become more favorable to bills meant to aid consumers — measures that are often opposed by large corporations.

Those companies — which argue such bills represent unnecessary and costly additions to an already vast bureaucracy — have been left to lobby the more moderate, business-friendly Democrats holding the governor's office.

As of Monday, Hochul had vetoed about 9 percent of the bills she has taken action on.

That was more than the 6 percent Cuomo vetoed in 2020, but less than the 19 percent Cuomo vetoed in 2019.

And on Tuesday, Hochul signed 40 more bills and issued no vetoes, bringing the veto percentage down to about eight.

The signings included a bill Hinman opposed on behalf of BlueCross requiring health plan notifications to specify between partial denials of medical claims and full denials.

By the end of the month, Hochul must decide whether to veto or sign hundreds of remaining bills passed by the Legislature this year, including a number with significant opposition from lobbying firms that raised six-figure sums for her campaign.

Written By Chris Bragg

Chris Bragg is a political and investigative reporter for the Capitol bureau and contributor to Capitol Confidential. You can reach him at cbragg@timesunion.com or 518-454-5303.

https://www.timesunion.com/state/articl ... 09a3f12c1f