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From:

Sarah Durand
Sent: Monday, August 22, 2016 8:28 AM
To: Newtown Creek Steering Committee
Cc: bloodgood@gmail.com; krysia915@hotmail.com
Subject: Re: ICYMI - Article about DEP falsifying data in Newtown Creek


DATA FABRICATION! DATA FALSIFICATION! NEWTOWN CREEK!

Please forgive a second information dump in as many days - but it's critical to have as much
information as possible before we get taken on the boat for a ride on September 7th.

- it pays to follow through on
- all the names
- all the claims

Let's do so
______
HYPOTHESIS
The Newtown Creek Group (NCG, ExxonMobil et al) is trying to pin much of the clean-up cost on the
City as possible. The City is fighting back by hiring its own contractors to identify the extent of
the industrial pollution currently within the Creek and continuously entering the Creek via upland sites
of contamination (e.g., the National Grid property).

But the NCG worked out a legal deal with the EPA (in which the community had no part). the deal is an
approved work-plan that specifies Anchor QEA as the only authorized contractor for the Superfund
effort. Given what I've sent you re Anchor's history as a corporate shill, you'll understand why Anchor
was desired by the NCG to serve as the Superfund contractor.

But the City - using contractors the EPA itself has employed - has data that will "give the lie" to the
corporate-friendly models developed by Anchor for the purpose under-estimating clean-up costs.

The EPA's own team of independent assessors of the Superfund effort - the Contaminated Sediments
Technical Advisory Group (CSTAG), who visited Newtown Creek in June of 2015 - advised that
the local EPA Superfund team use all available data - from the DEP and DEC - in pursuing its Remedial
Investigation (RI) and Feasibility Study (FS).

The EPA team (under Michael Sivak, with Caroline Kwan as Project Director) is not legally
required to accept the CSTAG recommendations - as Sivak reminded me when I queried him during
one of our CAG meetings.

The NCG fears that the CAG will demand that the CSTAG recommendations be followed and - worse -
demand that ALL data (including data acquired by the City's contractors) be considered in the
determination of a final Record of Decision (ROD) that specific how to proceed with the Newtown
Creek clean-up.

Therefore, the NCG has waged a continuous campaign to discredit the NYCDEP in the eyes of the CAG
by exploiting past and current - and legitimate - community grievances against the DEP, with the
goal of the CAG not demanding all data be considered for the ROD.

In June of 2015, the NCG common counsel, W David Bridgers, requested Anchor leak to the
CAG Steerng Committee (during a wine & dine event) his letter to the EPA that complained the DEP
was responsible for delaying water samples from combined sewer outfalls during rain events; in other
words, Bridegers letter attempted to incriminate the DEP for nterfering with and delaying data
collection.

This letter proved to be a hoax (and it was the only letter that Bridgers ever allowed the CAG to review
- although he has written dozens; nor did NCG/AQ ever show the CAG the courtesy of informing us that
the EPA refused to legitimize the accusations - I had to inquire during a conference call...)

To conclude, I believe the "DEP falsifies data" story is the product of the W David Bridgers legal team,
with the goal of discrediting DEP data in the eyes of the CAG.
My hunch is that the Bridgers team identified disgruntled DEP employees who would - for a sum allow their names to be used for a claim they had never considered (as is evident from the legal
documents available for each of the plaintiffs). The DEP employees entered this agreement without
risk because the case would only proceed if the EPA believed there were credible evidence for doing
so. The "evidence" is so laughable that it ensured the EPA would never acknowledge the claim of data
falsification.

Willis has offered the hypothesis that the "DEP falsifies data" story is the product of disgruntled DEP
employees who wanted to make a some money off of the DEP. However - given they could provide
no data to support this claim, I can't see how this hypothesis is supported by available evidence.


From: Sarah Durand
Sent: Monday, August 22, 2016 8:28 AM
To: Newtown Creek Steering Committee
Cc: bloodgood@gmail.com; krysia915@hotmail.com
Subject: Re: ICYMI - Article about DEP falsifying data in Newtown Creek


DATA FABRICATION! DATA FALSIFICATION! NEWTOWN CREEK!

Please forgive a second information dump in as many days - but it's critical to have as much
information as possible before we get taken on the boat for a ride on September 7th.

- it pays to follow through on
- all the names
- all the claims

Let's do so
______

In addition to the DNAinfo story of DEP DATA FALSIFICATION - AGENCY-WIDE CONSPIRACY -

WHISTLE-BLOWER RETRIBUTION - DISMANTLING OF REGULATORY OFFICE - CRIMINAL HISTORY -


RESIGNATION OF COMMISSIONER
the same story also appeared in Queens Chronicle and Progress Queens

http://www.qchron.com/editions/queenswide/dep-workers-say-city-fabricates-creekstats/article_b2aad241-0079-580a-a018-8346a6841bfc.html

http://www.progressqueens.com/news/2016/7/1/notice-of-civil-lawsuit-alleging-clean-water-actviolations-preceeded-resignation-of-dep-commissioner?rq=Department%20of%20Environmental

- and follow-up article:
http://www.progressqueens.com/news/2016/7/8/allegations-of-altered-water-testing-logbooks-andretaliation-against-environmental-auditors-cited-in-amended-notice-against-the-city-of-new-york

All link stories link to the same JurisGroup PLLC anouncement of intent to commence civil proceedings
against the NYCDEP on behalf of THIRTEEN (wow) employees

http://thejurisgroup.com/wp-content/uploads/2016/07/2016.07.04-EPA-Notice-full.pdf

______________

The Chronicle story has the most information and fewest unsupported grandiose pronouncements (but
still many): The article provides names of four plaintiffs in the body of the story. Each has case records
with the DEP that can be researched (there are also NY Post articles on two of the plaintiffs) - the 9
other plaintiffs are "John Doe's"

Here's the only named plaintiff who was employed at the Newtown Creek water treatment plant
Michael Golden (MG): http://archive.citylaw.org/oath/13_Cases/13-1519.pdf

(quotations are from Administrative Law Judge Faye Lewis)
- case filed in 9/2013
- defendant MG is a microbiologist at NC Treatment Plant (James Pynn, Plant Superintendent)
- MG suffered a work- related injury in 1999, hurting his neck, back.. received workers compensation and physical
therapy
- "EEO office does not have any record of respondent or anyone on his behalf requesting a reasonable accommodation since
2005"
- "DEP acknowledged that it had extended informal accommodations to respondent in 2004 in an attempt to
accommodate his disability,
including a flexible schedule, breaks in his schedule, and modifications of work assignments (Pet. Ex. 26 at A01264) "
- DEP "granted leave" to MG: 11-30-2010 to 11-29-2011 and 9-1-2012 to 12-31-2012
- MG's "timesheets show that he often took off a day in the middle of the week from January through June 2012"
- NYCDEP charges MG with following
a) respondent failed to obey a lawful order to report to training classes
b) respondent failed to complete his Demonstration of Capability (DOC), as required by state and federal ..
c) failed to properly complete daily laboratory worksheets
d) respondent neglected his duties by failing to sign the calculated for box for 13 fecal coliform samples on
the daily worksheets
prepared by the laboratory

e) disrespect to co-workers

f) absence without authorization


- "Although respondent did not testify, he asserted that his 'main defense' to all of the charges is that he was 'eligible
for reasonable accommodation,' (Tr. 716), which the agency failed to provide and that he was "discriminated
against" because of his disability.
- Judge Faye upholds charges except (f) and Commisioner Strickland imposes a 30-day penalty without pay

Although MG is the only named NYCDEP plaintiff who was employed at the Newtown Creek Treatment Plant,
perhaps this reflects the "agency-wide" nature of the "conspiracy". But before examining the cases of the other
named DEP employees, let's turn our attention to the evidence re malfeasance at Newtown Creek in the
document provided by all 3 referenced news outlets.

At least the Chronicle was honest re "the document" of evidence provided by the JurisGroup PLLC:
"While the document is short on specifics, it says actions taken during a 2013 staff meeting still constantly
occur." (btw, re "specifics"...what staff meeting? where? with whom? what "actions"- ANY reference? - let's
check "the document" ... we will never find this staff meeting... )

AMENDED NOTICE OF CLEAN WATER ACT VIOLATIONS AND INTENT TO COMMENCE CIVIL PROCEEDINGS
EXHIBIT B and EXHIBIT C are specifically relevant to the Newtown Creek Treatment Plant

EXHIBIT B: Photographs of logbooks: (a code key would have been helpful to allow the reader to assess what (s)he's
reading)
The following text directs us to exhibit B:

William Kelly, Chief at the NYC DEP Newtown Creek Laboratory presently engages in managerial practices to intentionally
corrupt data at each of these stages (i.e. store, analyze, calculate, record), and finally by directing supervisors to make false
statements in water quality logbooks just prior to governmental inspection. For example, during a staff meeting in February
2013 and 2 wkkesprior to NYS inspection, Kelly requested
that Esmeraldo (Alan) Castro flag all apparent violations present in water-quality testing logbooks with a subsequent
directive that Naudet Joasil and Patrick Hoyes amend the entries in a manner to misrepresent lawful compliance [Exhibit B]. The
three pages annexed as Exhibit B depicts some of the unlawful entries before and after amendment along with the flags.


STUDY THE ENTRIES - There are some ominous "flag"s - those yellow sticky tags could be the locations where
clean water violations are to be expunged and replaced with FALSE DATA !

Photo#1 - no apparent alterations - this photo is missing the yellow flag tags - interesting coincidence: it dates
from the period of plaintiff MG's absence from the treatment plant
Photo#2 - ditto re the entries - but there are those ominous yellow flag tags - the journal dates from the period
when MG was being requested to complete entries and sign off ...oh....uh....perhaps at those yellow flag
tags???
SO - now we have two competing hypotheses:
The yellow flag tags denote MG's missing entries and signature omissions
The yellow flag tags denote part of the dark agency-wide conspiracy (focused on Newtown Creek) to FALSIFY
DATA
Photo#3 - There's writing on the only yellow tag! Let's zoom in: "Please Sign"

EXHIBIT C: Photographs of a laboratory:
The following text directs us to exhibit C:

Even before inspection, interests like sterility, which should be among his top priorities, are passively violated by Kelly
[William Kelly, Chief of the Newtown Creek Laboratory] and his manner of supervision as evidenced by the NYC DEP
laboratory conditions depicted in [Exhibit C]. Audio recordings are available where Kelly is heard reprimanding a
subordinate for asking NYS inspectors a question about testing and not him directly.

Photo#1 - A composite:
WOW: These photo's look like images from tutorial videos for research students re unsafe laboratory practices!

WOW: For any of us who have been on Jim Pynn's tours of the new state-of-the art treatment plant, these
photo's come as a shock. Those white laboratory cabinets rusted away SO FAST !! And Jim sure had us fooled -
we thought he cared. As a community, we must DEMAND access to this this laboratory IMMEDIATELY.
Please note the building number, room number and date the photographs were taken. We'll take this
information to the proposed City Council hearing and demand an immediate inspection.

...oh...uh... well, maybe if we ask Attorney Michael Goldstein of the JurisGroup PLLC for identifying
information ...

Photo#2 - A composite:
ditto

Exhibits B and C are the only evidence offered for II ELEMENTS OF THE CONSPIRACY, section
A) Fabricating official water-quality reports prior to governmental inspection

Lets continue with B) in this section
____________

ELEMENTS OF THE CONSPIRACY -


B) Dismantle and weaken the OEHS

EXHIBIT D is offered here.

EXHIBIT D: A Personnel Table dating from 2010 and showing the restructure plan for employees of the OEHSC
(Office of Environmental Health and Safety Compliance):
The following text directs us to exhibit D:

Following its sentence (where is the referenced "sentence"? this is the first statement of subsection B), Nucciarones appointee for
Chief of OEHS, Gerould J. McCoy, was immediately demoted and replaced by Persis Luke, a NYC DEP manager with no EHS
experience or exposure, but instead with an agenda to decentralize OEHS and revert EHS reporting and enforcement authority
back to NYC DEPs individual bureaus.
Luke systematically and patiently began EHSs deconstruction by first depowering its auditors, those responsible for detecting
and remedying violations (the only evidence of these powerful claims is Exhibit D). In April 2010, Luke terminated and transferred
6 OEHS auditors who had performed satisfactorily under McCoy and Nucciarone, but never filled the vacancies and while
allowing less effective auditors to remain [Exhibit D]

The OEHSC was formed by the DEP in partial fulfillment of the sentencing demands for its probation period for
violating the Clean Water Act, a period that concluded in December of 2009. Apparently, the EHS was
reorganized and downsized, with some employees being transferred to site-specific offices and some
terminated. The latter activity is presented as part of a conspiracy to avoid regulatory compliance - alternatively,
there is a reason offered by the author of Exhibit A - Nucciarone - see bold type under Exhibit A, 4 below.

Notice the grouping together of EHS staff who have been terminated with those transferred - you get a bigger number.
Also, note that all three of the terminations listed in the personnel table are of "PROVISIONAL" staff, meaning they were
under temporary emplyment.

Here end the available evidence for the conspiracy.
As with Exhibits B and C, Exhibit D provides no information re Newtown Creek falsification of data - although it does support
the contention of budget insufficiency, as noted by Nucciarone.
______________

Progress Queens reported additional information from JurisGroup PLLC was imminent, thereby suggesting that
forthcoming information could substantiate the story of an agency wide conspiracy of data falsification

http://www.progressqueens.com/news/2016/7/1/notice-of-civil-lawsuit-alleging-clean-water-act-violationspreceeded-resignation-of-dep-commissioner?rq=Department%20of%20Environmental
"The notice to the City informed the City that Juris Group, the law firm, would produce a report about their own investigation
of the allegations, and that report would be publicly posted on the law firm's Web site on or before 13 July."

Let's look: http://jurisdigest.com/notices/cwa/

...oh....uh... perhaps by September 7th..



_____________

We skipped Section I, CRIMINAL HISTORY, of the single evidential document that is indeed available.
Lots of new information here in Section 1: The NYC DEP has violated the Clean Water Act - more than once.

EXHIBIT A: Scanned images of the "TWENTY FOURTH REPORT OF A COURT-APPOINTED MONITOR :


The following text directs us to exhibit A:

The agency was sentenced to a 5-year term of probation with extensive special conditions, fines in excess of $300,000/year, and
daily oversight by court-appointed monitor A. Patrick Nucciarone who later attributed the NYC DEPs criminal conduct and
managerial inaction to a cultural history of retaliatory actions taken by certain supervisors against employees who raised
legitimate Environmental Health & Safety (EHS) concerns [Exhibit A].

Please help me find Nucciarone's attribution of a cultural history of criminal conduct

Page#1 - Entitled as above and dated as filed on 12/23/09 (apparently the last report of a multi-year monitoring program)
Page#2 - Table of Contents and list of abbreviations
Page#3
- Executive Summary - some excerpts (hopefully some of you will have time to read the full text)
Audits of all NYCDEP facilities continue at satisfactory pace ( "all" !? - but isn't Newtown Creek the focus of the case? Where
are specific references to Newtown Creek?)
"I close this report with four final observations and recommendations that are directed to observed weaknesses
in..regulatory compliance program" (how have these weaknesses been addressed in the seven years since these
recommendations were received?)
- Introduction - some excerpts (hopefully some of you will have time to read the full text)
"The NYCDEP initially plead guilty on August 29, 2001 to criminal charges alleging violations of federal environmental
laws for having released mercury-contaminated water into Roundout Reservoir...On February 7, 2006, after pleading guilty to
having violated...raw sewage into the East River ...
(Newtown Creek must be coming up on the next page)
Page#4
- Summary, page 27 of 30 (Summary! But where are the examples of criminal activity on Newtown Creek in this 7 year old
document? Where is reference to data falsification? Why are we jumping to the Summary before these incidents have been
revealed?)
"..appears to have in place the components of an effective EH&S regulatory compliance program...must continue to
improve adherence to program objectives..."
Page#5 - There are 4 recommendations:
1. Three employees are cited as having lied to outside investigators retained to investigate allegations of retaliation and
unsafe working conditions, with the recommendation that punishment for such actions be much stronger. Finally a
reference to retaliation (how and for what can't be determined from the text provided)
2. "Certain" laboratories (unidentified - a reference is made to the here missing pages 20-22) are operating in a manner
inconsistent with certification standards and good management - it's recommended that these certain BWS (Bureau of
Water Supply) and BWT (Bureau of Water Treatment) laboratories follow practices and procedures at BWS Watershed
Water Quality Operations laboratories.
3. Contracts should be awarded more quickly and managed more effectively - recommend retention of a management
consultant.
4. Acknowledgement of budget shortfall for adequate staffing and infrastructure repair - several paragraphs are devoted to
describing the consequences of this inadequacy. Quoted text:
A consulting engineering firm engaged to evaluate the condition of New York City's water and sewer system each year
observed in a March 2009 report that while the system is managed in a professional and prudent manner and while available
budgets satisfy immediate needs and legally mandated projects, the infrastructure is aging, projects deemed necessary to

maintain it in a state of good repair have been deferred and a significant increase in staff will be required to operate
new equipment and sustain regulatory compliance...New York City and the NYCDEP both suffer from the impacts of
the current economic downturn. I opened an inquiry on this topic due to allegations that inadequate resources
threatened the achievement and sustainability of regulatory compliance. I offer no recommendation ...

Exhibit A is the only evidence provided for the section CRIMINAL HISTORY.

Still looking for evidence of an agency-wide conspiracy to falsify data
_______________
There is one last exhibit. Perhaps, finally, the "smoking gun." .
EXHIBIT E

I recognize this! - it came up researching the court records: a summary judgement on Pierre Saint Louis - one of
the named plaintiff's for which I found a story in the NY Post:
http://nypost.com/2014/03/31/city-staffer-racks-up-3m-bill-on-company-cell-phone/

- and here's the court record from which Exhibit E derives - and the only other record wherein the words
Newtown Creek appear
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-195.pdf
St. Louis is an auditor systematically reprimanded for preparing reports (any at Newtown Creek? .... no) of
insufficient thoroughness and lacking adequate analysis.The City sought his dismissal, but the Court ruled
against the City because of failure "to provide objective proof supported by reliable documentary evidence that
respondent is unable to meet the minimally acceptable threshold requirements of the duties of this title"
Defendent claimed City's action retaliatory because (he was a whistle blower? ...no) he had submitted an EEO
complaint against Supervisors for disrespectful behavior towards him, presumably on the basis of ethnicity.

And Newtown Creek? The City alleges the defendant made "inappropriate statements" to the lead auditor here
and ultimately did not participate in writing the report (hmmm...but this could be it....perhaps those
"inappropriate statements" were accusations of DATA FALSIFICATION AT NEWTOWN CREEK - we'll just need to
wait for the promised upcoming report by JurisGroup, now 1+ month overdue, mentioned in Progress Queens
"The Amended Notice revealed the existence of video and audio recordings that will reportedly serve as evidence of claims
made in the Amended Notice"

Audio and video recordings! Let's hope we get to examine these before September 7th.
____________

There are the two remaining named plaintiffs.



Stacey Moriates
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/11_Cases/14-1633.pdf
- and attached

Viktor Berylavsky
http://www.leagle.com/decision/In%20FDCO%2020151002S21/BERLYAVSKY%20v.%20NEW%20YORK%20CITY%
20DEPARTMENT%20OF%20ENVIRONMENTAL%20PROTECTION
- and attached

Viktor was also feature in an NY Post article
http://nypost.com/2014/01/28/city-employee-viktor-berlyavsky-in-trouble-for-working-too-hard/Please
examine the respective court records with the DEP. Neither set of records bears upon data

Please study the above cases carefully - perhaps you will find some key references this observer has missed that
just might lead us to

DATA FALSIFICATION, NEWTOWN CREEK and AGENCY-WIDE CONSPIRACY TO UNDERMINE THE CLEAN WATER
ACT

_____________

BUT WHAT ABOUT THE ANONYMOUS NINE !!! THERE ARE THIRTEEN PLAINTIFFS!!!
Four of 13 - that's only about a third of this group who didn't provide us with what we need to move forward on
a City Council Hearing. Surely the anonymous nine will come forward once civil proceedings commence

But look -
In small print - footnote #3 at the bottom of page #1 of the JurisGroup PLLC document - emphasis on "only"
"Identities of John Does #1-9 will be made available to the EPA by request only"

According to the Chronicle:


Matthew Goldsmith, the attorney for the 13 plaintiffs, said in a Tuesday interview the EPA now has 60 days to
look into the matter and determine whether it warrants opening a criminal investigation into the DEP
...looks like the identities of the anonymous 9 will be forever protected


http://thejurisgroup.com/CWAReport