By LOUIS FLORES
A Manhattan law firm has published on its Web site a copy of an Amended Notice that lays the legal groundwork for the possible filing of a civil lawsuit against the City of New York for violations of the Clean Water Act.
The Manhattan law firm, Juris Group PLLP, detailed more complete allegations in the 4 July Amended Notice served on the City of New York since it first filed its 23 June original Notice.
Whereas the four main allegations outlined in the original Notice previously reported about by Progress Queens remain the same in the Amended Notice, new details emerged about the alleged Clean Water Act violations and the retaliation committed by the municipal water system management agency, the New York City Department of Environmental Protection, or NYC DEP, against auditors and whistleblowers.
Violations of environmental laws are "ongoing"
As previously reported by Progress Queens, NYC DEP was under Court-ordered supervision from 2001 through 2009 due to prior violations of environmental laws. The Amended Notice alleged that the pattern and practice of violations at NYC DEP are ongoing and can be traced as far back as 1988.
The first of two main allegations related to the violation of environmental laws focused on the alleged fabrication of official water-quality reports prior to Government inspection, according to the Amended Notice. Allegations were made that a chief at the Newtown Creek Laboratory is currently engaged in "managerial practices to intentionally corrupt data" of wastewater samples intended for testing. It was also alleged in the Amended Notice that the lab's chief further engages in the corruption of records by "directing supervisors to make false statements in water-quality logbooks just prior to government inspection."
The Amended Notice included an Exhibit of photographs allegedly documenting some of the alterations to the logbooks, and other photographs in another Exhibit raised questions about the sterility of NYC DEP lab conditions.
The second main allegation related to environmental law violations related to the dismantling of a key NYC DEP department tasked with addressing violations of the Clean Water Act. The department, the Office of Environmental Health & Safety, or OEHS, was originally created during the Court-ordered supervision. The Amended Notice described conditions under which a new manager appointed to oversee OEHS acted to dismantle its role within NYC DEP by disempowering auditors, by transferring auditors, by leaving auditor vacancies unfilled.
It is not known how NYC DEP will publicly defend itself against the allegations in the Amended Notice. In the time since Progress Queens began to review the allegations made in the original Notice, City Hall has declined to answer two requests made by Progress Queens to discuss the accusations contained in the notices.
NYC DEP's Court-ordered supervision occurred after a settlement was reached with the U.S. Attorney's Office for New York's southern district, which had been investigating NYC DEP for environmental law violations. During the period of the Court-ordered supervision, a Federal monitor filed periodic reports about the progress NYC DEP was making in respect of reforms and with compliance with environmental and employment laws. It was found that NYC DEP was able to violate environmental laws by fostering a culture that retaliated against whistleblowers.
During that time, the U.S. Environmental Protection Agency, or EPA, followed the progress made by NYC DEP. However, once the term of the Court-ordered supervision ended, the EPA reportedly stopped keeping close tabs on NYC DEP, according to a source.
The EPA declined to say why they did not detect any of the alleged violations of the Clean Water Act or the retaliatory acts committed against whistleblowers by NYC DEP, as detailed in the Amended Notice.
"The EPA gets notices of intent to sue from outside groups quite frequently under citizen provisions of environmental statutes. The EPA doesn’t comment on these notices or their contents. We will review the notice to determine if there are any actions needed on the part of EPA," said Mary Mears, acting director of public affairs of the EPA's New York City office, in a statement provided to Progress Queens.
Advance questions submitted by Progress Queens to the New York State Department of Environmental Conservation, seeking their reaction to the allegations in the Amended Notice, were not answered. Consequently, it is not yet known what actions the State agency will take to step up its oversight efforts of the City agency. The State agency and the EPA have oversight in respect of permits that the City agency must apply for in order to discharged treated wastewater.
The allegations that NYC DEP violated the Clean Water Act may have implications for the State agency and the EPA in as much as NYC DEP may have violated the terms of the permits for having discharged wastewater pollutants in excess of State or Federal regulations.
Retiring Commissioner Lloyd allegedly facilitated a wrongful reprimand of an auditor
New details in the Amended Notice also provided a clearer glimpse of the retaliatory acts allegedly taken against auditors and whistleblowing employees of NYC DEP -- and how far up the hierarchy the alleged culture of retaliation reached.
One of the law firm's 13 clients in the anticipated civil lawsuit, Pierre St. Louis, was reportedly subjected to retaliation for his duties as an auditor, and he faced disciplinary charges that, despite being described as "fabricated" in the Amended Notice, still resulted in a reprimand after Mr. St. Louis initiated a complaint against an NYC DEP director.
In an Exhibit to the Amended Notice, it was revealed that retiring NYC DEP Commissioner Emily Lloyd personally facilitated the reprimand dealt to Mr. St. Louis, who was an auditor in OEHS, the special department created during the prior Court-ordered supervision and tasked with addressing violations of the Clean Water Act. One of the main accusations made in the Amended Notice was that NYC DEP was trying to weaken compliance and enforcement activities of auditors, and that this alleged weakening of OEHS took the form of disempowering auditors and by transferring auditors.
Retiring Commissioner Lloyd rejected the notion that Mr. St. Louis had faced retaliation by the director, according to a letter dated 4 March 2016 and addressed to Mr. St. Louis and signed by retiring Commissioner Lloyd that was attached to the Amended Notice as an Exhibit.
In the letter, Commissioner Lloyd denied that Mr. St. Louis' performance evaluation was rigged in order to set him up for failure, and she invoked the word "coaching," a euphemism for conditioning, to seemingly admit that efforts were made to alter how Mr. St. Louis approached his duties, including audits.
The letter concluded with retiring Commissioner Lloyd effecting a transfer for Mr. St. Louis to a different department, according to the Exhibit to the Amended Notice. The change in Mr. St. Louis' employment status served as a reprimand to Mr. St. Louis, contradicting a prior finding made by an administrative law judge, who had found no reason for reprimand, according to the Amended Notice.
Juris Group PLLC, the law firm that filed the Amended Notice with the City of New York and other regulators, indicated that it intends to release next week a report of its investigation that will provide more information about the allegations. The Amended Notice revealed the existence of video and audio recordings that will reportedly serve as evidence of claims made in the Amended Notice. The Amended Notice also listed other examples of misconduct by NYC DEP, including by First Deputy Commissioner Steven Lawitts in relation to the use of independent contractors, including Veolia North America.
Mr. Lawitts is expected to step down from his post later this month.