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FOIL Appeal Determination for 08-03-2A (Jeffrey B. Gracer, February 16, 2008)

February 16, 2008

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/
BY TELECOPY & OVERNIGHT DELIVERY

February 16, 2008

Jeffrey B. Gracer, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, New York 10022-1906

Re: Freedom of Information Law ("FOIL") Appeal No. 08-03-2A
FOIL Request No. 07-2629

Dear Mr. Gracer:

Pursuant to our conversation on Thursday, February 14, 2008, and my discussions with Department staff on February 14 and 15, this is to advise that the above-referenced FOIL request is being reconsidered by the New York State Department of Environmental Conservation ("Department"). Furthermore, during this period of reconsideration, the statute of limitations period as otherwise referenced in the Department's FOIL Appeal Determination letter dated February 12, 2008, is suspended.

My discussions with Department staff indicated that its interpretation of the exception language in your letter dated November 7, 2007 ("specifically exclud[ing] any documents filed or otherwise submitted by or on behalf of any of the Parties") encompassed correspondence or other transmittals from the Department to the Parties. Based on our conversation, I understand that your intent was not to exclude such correspondence or transmittals from the Department.

Accordingly, I have requested that Department files subject to your FOIL request be re-reviewed for any releaseable records, including but not limited to Department correspondence or transmittals to the Parties. I also understand from our conversation that you are not seeking access to records that may be withheld pursuant to the intra-agency/inter-agency or attorney client privilege/attorney work product exemptions under FOIL as contained in the Public Officers Law.

I contacted your office yesterday to review this matter and to confirm that my understanding of the scope of your request is correct. I expect to be out of the office from February 19 to February 26. In the interim, please feel free to contact Administrative Law Judge ("ALJ") Richard Sherman who will be coordinating this matter in my absence. The ALJ's office telephone number is (518) 402-9003.

As of yesterday, Department staff has advised me of the following sites that have been identified to be subject to your FOIL request:

River Place I, Site No. C231024
River Place II, Site No. C231012
Tarrytown, Site No. C360064
535 W. 19th Street (West Chelsea Development), Site No. C231056
19th Street Development Site, Site No. C231017
Riverside Substation, Site No. C231047

The following correspondence is being faxed to you, together with this letter:

River Place I: letter dated January 7, 2005 from Denise J. D'Ambrosio to M. Wilcken of Con Ed and S. Gordon of Beveridge & Diamond (transmitting Brownfield Site Cleanup Agreement)

River Place II: letter dated January 7, 2005 from Denise J. D'Ambrosio to M. Wilcken of Con Ed and S. Gordon of Beveridge & Diamond (transmitting Brownfield Site Cleanup Agreement)

535 W. 19th Street (West Chelsea Development): letter dated August 2, 2007 from Dale A. Desnoyers to E. Louie of Con Ed and C. Wood c/o Cape Advisors, LLC

19th Street Development Site: letter dated July 19, 2004 from Denise J. D'Ambrosio to M. Chertok of Sive, Paget & Riesel, P.C. (transmitting Brownfield Site Cleanup Agreement)

Riverside Substation: letter dated June 3, 2005 from Denise J. D'Ambrosio to M. Wilcken of Con Ed (transmitting Brownfield Site Cleanup Agreement)

Riverside Substation: letter dated February 23, 2005 from K. Lewandowski to R. Price of Con Ed acknowledging receipt of application and describing notice requirements

The following information is being sent by overnight mail on Tuesday for receipt on Wednesday, together with this letter:

River Place I, Brownfield Site Cleanup Agreement
River Place II, Brownfield Site Cleanup Agreement
Tarrytown, Brownfield Site Cleanup Agreement
19th Street Development Site, Brownfield Site Cleanup Agreement
Riverside Substation, Brownfield Site Cleanup Agreement

We will advise you if any additional sites are determined to be subject to your request and will be notifying you of additional records that are releaseable. As noted, please feel free to contact ALJ Richard Sherman in my absence if you have any questions. Also please contact the ALJ if any further clarification of the scope of your FOIL request, as described in this letter, is necessary. The Department will be seeking to complete this further review as expeditiously as possible.


Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner

cc: Richard A. Sherman, Administrative Law Judge

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