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FOIL Appeal Determination for 07-27-2A (Walter Hang)

September 18, 2007

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

September 18, 2007

Mr. Walter Hang
215 N. Cayuga Street
Ithaca, New York 14850

Re: Freedom of Information Law ("FOIL") Appeal No. 07-27-2A
Appeal Determination

Dear Mr. Hang:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL", codified at sections 84-90 of the Public Officers Law ["POL"]), from the denial of access to records by the Department's Central Office. These records, which were referenced in your original FOIL request to the Department's Region 2 office, pertain to certain former manufactured gas plant sites located in New York City.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from the Central Office, Division of Environmental Remediation. On this appeal, we have conducted a de novo review of the records withheld. A brief review of your FOIL request, and Department staff's response thereto, follows.

Background

On March 28, 2007, you requested records from the Department's Region 2 office related to four former Consolidated Edison manufactured gas plants identified as follows:

CE - E.21st St. Works, Facility ID#V00536
(East 20th - East 22nd Streets, New York, NY);
CE - E.14th St. Works, Facility ID#V00535
(East 14th - East 16th Streets, New York, NY);

CE - E. 17th St. Station, Facility ID#V00541
(East 17th - East 18th Streets, New York, NY); and

CE - E. 19th St. Station, Facility ID#V00542
(524 East 19th Street, New York, NY).

Specifically, you requested to be furnished with copies of the most recent:

"1) Quarterly groundwater monitoring and remediation report;" and
"2) Legal stipulation or consent order signed by the responsible party."

By letter dated April 30, 2007, the Department's Region 2 Records Access Officer advised you that your FOIL request was being referred to the Department's Central Office because no records related to your FOIL request were maintained in the Region 2 office.

Thereafter, in a May 1, 2007 electronic mail message to you from Gardiner Cross, Engineering Geologist 3 in the Department's Division of Environmental Remediation, Central Office, you were furnished with a copy of the Voluntary Cleanup Agreement ("VCA") covering the sites subject to your FOIL request. In that same message, Mr. Cross also advised you that other site-specific information in your FOIL request, i.e., remediation investigation reports, was "still under review" by Department staff.

In a June 19, 2007 electronic mail message to you from Elizabeth Lukowski, Engineering Geologist 1 in the Department's Division of Environmental Remediation, Central Office, you were advised that: the remedial investigation reports for the sites referenced in your FOIL request were not yet finalized; there were "no 'quarterly groundwater monitoring reports' for" the sites; and a copy of the VCA for the sites was again being provided to you.

By letter dated July 12, 2007 (and received on July 16, 2007), you filed this appeal from the denial of access to records with the Department's Office of Hearings and Mediation Services.

Records Reviewed

At the outset it should be noted that Department staff complied with a portion of your FOIL request by providing you with copies of the VCA for the subject sites as noted above. The VCA for the manufactured gas plants was in response to your request for a "legal stipulation or consent order" related to the sites.

In response to your request for quarterly groundwater monitoring reports related to the sites, Department staff advised you that it had no quarterly groundwater reports for those sites. On this appeal, Department staff has confirmed that no quarterly groundwater monitoring reports for the sites subject to your FOIL request exist.

With respect to your request for remediation reports related to the sites referenced in your FOIL request, Department staff advised you that such reports were in draft form only as of the time of its consideration of your request. However, this is to advise that within the past two days, the Department has received in hard copy, and also in CD format (three disks), finalized interim reports for the requested sites, that is:

E.21st St. Works, Facility ID#V00536. In addition, an E. 21st Street Works Water Valve Replacement Report has been submitted on a separate computer disk as an addendum to the E. 21st Street Interim Remedial Investigation Report;

E.14th St. Station (Stuyvesant Town), Facility ID#V00535;

E. 17th St. Station (Stuyvesant Town), Facility ID#V00541; and

E. 19th St. Station (Stuyvesant Town), Facility ID#V00542.

In addition, fact sheets and public notices have been prepared, also in hard copy and CD format.

Based on our review, we have determined that these finalized interim reports, the addendum, and fact sheets and public notices should be released in their entirety. If you wish to be provided with copies of the five disks that contain this information, please submit a check to Kimberly Sarbo in our office in the amount of five dollars ($5.00), made payable to the "New York State Department of Environmental Conservation," within thirty days of this letter. Alternatively, if you would like to review the hard copy of these records at our office in Albany, please contact Kimberly Sarbo at (518) 402-8537 within thirty (30) days of this letter. If we do not hear from you within thirty (30) days of this letter, the records will be returned to the appropriate agency files and the appeal file shall be closed.

This letter is the final determination of the Department of Environmental Conservation with respect to your appeal. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 07-27-2A.

Sincerely yours,

/s/
Louis A. Alexander
Assistant Commissioner

By: /s/
Mark D. Sanza
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer

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