Notice of proposed lawsuit alleging Clean Water Act violations preceeded resignation of DEP commissioner Emily Lloyd

By LOUIS FLORES

One week before New York City Hall announced the retirement of New York City Department of Environmental Protection Commissioner Emily Lloyd, the City was notified by a Manhattan law firm of an intent to sue the City over violations of the Clean Water Act and for retaliation against whistleblowers, Progress Queens has learned.

The law firm, Juris Group, PLLC, represents thirteen clients, who were or who remain employees of the Department of Environmental Protection, or DEP, and the clients were the targets of alleged discrimination and retaliation after the employees expressed concerns about the integrity of the handling of water samples intended for testing and the integrity of log books that tracked testing-related procedures, according to attorney Matthew Goldsmith.*

In a notice faxed to DEP Acting Commissioner Steven Lawitts on 23 June, the law firm informed Federal, State, and City environmental and legal regulators of their clients' intent to sue the City, DEP Commissioner Lloyd, 103 DEP managers, and Mayor Bill de Blasio (D-New York City), alleging existing violations of the Clean Water Act, for "participation in an ongoing agency-wide conspiracy to falsify compliance" with the Clean Water Act, for "violating effluent standards/limitations," and for violating the State Pollutant Discharge Elimination System.

The notice detailed four specific allegations : the fabrication of official water-quality reports prior to Government inspection ; the perpetuation of a policy and practice of retaliation against whistleblower-employees ; the dismantling of an internal DEP office that was tasked with addressing Clean Water Act violations ; and the promotion of employees, who allegedly engaged in retaliation, and other unqualified personnel against protocol.

Advance questions submitted by Progress Queens to the City Hall press office for this report were not answered. A request to arrange an interview with DEP's acting commissioner was similarly not answered.

In an update report, Progress Queens published new information contained in an Amended Notice filed by the Manhattan law firm, Juris Group PLLC. The Amended Notice contained Exhibits of photographs, including one photograph of a water-testing logbook that was allegedly flagged for the fraudulent revision of test results to falsely report compliance with environmental laws. Source : Juris Group PLLC

In an update report, Progress Queens published new information contained in an Amended Notice filed by the Manhattan law firm, Juris Group PLLC. The Amended Notice contained Exhibits of photographs, including one photograph of a water-testing logbook that was allegedly flagged for the fraudulent revision of test results to falsely report compliance with environmental laws. Source : Juris Group PLLC

Mr. Goldsmith generally described some of the alleged violations to include not placing water samples meant for testing into ice after the samples had been taken and not honoring a 24-hour turnaround for transporting the water samples to testing facilities. Other alleged violations were generally described to be more serious, such as a supervisor's instructions to lower the amount of pollutants being reported, amongst still yet other alleged violations that included manipulating logbooks and sterilization records, Mr. Goldsmith told Progress Queens.

In respect of the discrimination and retaliation against the employee-whistleblowers, who raised concerns about these violations, Mr. Goldsmith said that the employees were referred to mental health treatment, were deprived of overtime, were isolated by their co-workers, and were humiliated, with some eventually facing termination based on false accusations. According to the notice provided to the City and reviewed by Progress Queens, one existing employee was threatened with employment termination as recently as 22 June.

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.

Prior to the announcement of Commissioner Lloyd's resignation, she was reportedly out of the office on medical leave. During that time, it was unclear who was running DEP. Mr. Goldsmith described frustrated attempts to determine who was in charge, recounting circular and unproductive attempts to use the 3-1-1 system to contact DEP to determine who was acting in Commissioner Lloyd's stead during her absence. (It has been the experience of Progress Queens that 3-1-1 operators will not forward calls of a legal or political nature to public officials, particularly at municipal agencies where the only method of telephone communication is the 3-1-1 service.) Eventually, Mr. Goldsmith was informed that Mr. Lawitts was serving as acting commissioner.

Mr. Lawitts had previously served as acting commissioner after Commissioner Lloyd had stepped down from her first stint as DEP's leader during the Bloomberg administration.

During Mr. Goldsmith's interview with Progress Queens, Mr. Goldsmith said that the allegations his firm's clients were making were described to be similar as those that had been previously made against DEP in 2001. At that time then, DEP was fined and later pleaded guilty to violating the Clean Water Act and the Toxic Substances Control Act, according to a report filed by the journalist Celeste Katz for The New York Daily News. As part of that settlement, then U.S. District Court Judge Charles Brieant appointed in 2001 A. Patrick Nucciarone, a former Assistant U.S. Attorney with the District of New Jersey, to serve as a Federal monitor over DEP. During Mr. Nucciarone's term as a Federal monitor, which continued until 2009 under the administration of former Mayor Michael Bloomberg (R-New York City), Mr. Nucciarone uncovered a pattern of retaliation against DEP employees, whose only concern was compliance with environmental regulations, according to a 2004 report published by The New York Times.

"Most of DEP is run by people, who were punished," Mr. Goldsmith said, referring to information he had gathered, adding that the mechanisms that were reportedly put in place as a result of the 2001 settlement "started to disappear," opening the door to a "reverting back of the culture."

When Commissioner Lloyd had first come into City Government, she was part of an inspiring class of the "best and brightest" that joined the administration of then Mayor David Dinkins (D-New York City), according to a post on the Ethics Aint Pretty blog, which referred to Commissioner Lloyd by the post she held during the Dinkins administration. Later, Commissioner Lloyd would serve in the administration of then Mayor Rudolph Giuliani (R-New York City) before reappearing during the Bloomberg and de Blasio administrations, losing some of her early polish after she became a fixture of the "permanent government" class of officials, who cycle through agency leadership posts across various mayoral administrations, according to the sentiment of the post on Ethics Aint Pretty.

If Juris Group, the law firm, does file the proposed lawsuit, then the Federal prosecutors at the U.S. Attorney's Office for New York's southern district would be expected to review the allegations contained in the complaint. In the past, the U.S. Attorney's Office has joined complex civil lawsuits that impacted important aspects of Government in order to ensure compliance with regulation by, amongst other measures, seeking the appointment of a Federal monitor. If the allegations made in the anticipated complaint turn out to be similar to the DEP violations from 2001, then the chances improve that there may be Federal intervention in the latest legal action against DEP.

A spokesperson for the U.S. Attorney's Office declined to comment for this report.

*This article was amended to correct the name of the attorney representing the former and current employees of DEP. The attorney's name is Matthew Goldsmith.

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