Why is City of New Rochelle Stonewalling on Army Corps of Engineers Report?

It is becoming increasingly apparent that the residents of New Rochelle have been lied to by their local government regarding a serious matter involving significant risk to human life not to mention negative consequences for property owners in and around Echo Bay (Sutton Manor, Premium Point, Davenport Neck and the Mill Pond area of Larchmont) and taxpayers who were quite nearly put on the hook for millions (if not tens of millions) in environmental clean up costs.

Likely implicated in what amounts of a conspiracy is senior officials from the New Rochelle Development Department, the City Manager and the Mayor of New Rochelle, and possibly more.

Below is my most recent email exchange with the City of New Rochelle regarding their six month-long failure to comply with the New York State Freedom of Information Law and the withholding of records related to the Army Corps of Engineers Report on a proposed (and rejected) aquatic restoration effort at Echo Bay. This study was requested by Rep. Nita Lowey and undertaken in 2005. The final report was issued in March 2006. The corps found large amounts of Mercury, Lead and Barium in the soil in and around Echo Bay along with other toxic metals and oil. To the best of our knowledge, this report was never made public, discussed at a City Council meeting, made available to ALL members of City Council, not included in the Forest City DEIS or FEIS and withheld from the current City Council members prior to voting on the proposed Land Disposition Agreement. Fortunately that agreement was rejected by City Council last month.

There can be no other conclusion but that City officials buried this report and are now engaged in a coverup.

Long Hidden 2006 Army Corps of Engineers Report Found High Levels of Hazardous, Toxic Metals in Channels Flanking Proposed Echo Bay Development

How Come No One in New Rochelle Knows Nuthin’ About Army Corps of Engineers Study of Echo Bay?

To: Chuck Strome, New Rochelle City Manager
From: Robert Cox, Talk of the Sound
CC: Kathy Gilwit , Albert Tarantino , Ivar Hyden , Shari Rackman , Louis Trangucci , Jim Maisano , Sheila Marcotte , Ron Tocci , latimer@nysenate.gov, OtisS@assembly.state.ny.us, mark.prentice@mail.house.gov, Joseph.O’Brien@mail.house.gov, George Oros , ce@westchestergov.com, kirsten_gillibrand@gillibrand.senate.gov, senator@schumer.senate.gov, cselin@aol.com, kwj6@westchestergov.com, Robert Freeman , villageclerk@villageoflarchmont.org

Dear Chuck,

My hope was that I would have a follow up to your email below by tonight’s City Council meeting. As I do not have one I am left no choice but to conclude that the City continues to be engaged in a deliberate effort to stonewall on providing information about the aquatic restoration project considered by the Army Corps of Engineers for Echo Bay in 2005-2006. If there is some good reason for this, now would be the time to explain.

Given the risk to human life, the tax impact and the potential damage to property values of property owners in that area, including Sutton Manor, Premium Point, Davenport Neck and parts of Larchmont near the Mill Pond it is simply not acceptable for the City to have withheld this information from the public for the past 7+ years and to thwart my efforts to provide this information the public.

I have copied on this email relevant area representatives including current and former City Council members who have told me they were never told about the Army Corps of Engineers reports as well as other area officials who likewise assert they had no knowledge of these reports until I published them. Also copied on this email is Congressman Lowey’s office as she initially requested the Echo Bay study and County officials who are responsible for the Waste Water Treatment Plant which sits directly next to the contaminated channels indicated by the Corps.

If there is an exception under FOIL that you are claiming as to why I have gotten zero documents back to my request dating back to July I would like to know that. The only exception that might even be plausibly asserted here would relate to the City selling or buying real estate. I would dispute that in any case but since the City Council has voted down the LDA, the City is no longer selling any real estate to Forest City so that exception is now moot. In any case, that has never been asserted and such an assertion was required with 22 days of my initial request, a date which has long since passed.

To date, the City has not provided a SINGLE document under my FOIL request, initiated in July. Further, the City Clerk has repeatedly put forward demonstrably false claims in an attempt to convey the idea that the City has no knowledge of any studies or reports related to the Army Corps of Engineers study from 2005-2006. You have put forward a statement intended (in my view) to convey that a reason the City has no record of or no knowledge of the reports is that there was a flood in City Hall even though, according to the Corps, the report was delivered on a CD.

Subsequent to these many false and misleading claims, I was able to get the Corps on record stating that their report was delivered to the Development Department on or around March 2006 on a compact disc.

You have recently admitted to knowledge of all of this, that there was discussions among the City, Forest City and the Corps about the findings in the report which suggests that the City shared the report with Forest City and, further, that there were likely email and other communications to set up meetings and discuss the results.

You wrote on 11/22:

the selected developer in coordination with the City was in contact with the Army Core (sic) regarding the environmental investigation and restoration of the shoreline at the site.

This admission was made after months of my being repeatedly misled by City Clerk Bennie Giles. Every communication with the Clerk included Corporation Counsel Kathleen Gill. Given the sensitive nature of my request I find it hard to imagine that your lawyer did not make you aware of my request.

What I do know (and you know I know) is that there was an email exchange between former Council Member Chris Selin and the Development Department in January 2006. I have provided that to the City and published it but the City has not provided even this KNOWN document. In that email exchange the City informs Ms. Selin, who was writing on behalf of the Sutton Manor Association, that the Corps is conducting a study on a possible aquatic restoration project in Echo Bay.

I know the Army Corps of Engineers reports exist and were delivered to the Development Department sometime around March 2006. I obtained the reports from the Corps under FOIA and have published a series of documents related to the study of a possible aquatic restoration project.

You have recently stated that there was communication between the City of New Rochelle, Forest City and the Army Corps of Engineers but have provided no records related to this.

Under NYS law, there are certain obligations of the City of New Rochelle which have not been fulfilled. The City has not provided the records. The City has not provided a reason for any delay in providing the records or provided a specific date when I might expect to receive the records. The City has not asserted that records are covered under any specific exception provided for under the law. More to the point, the City has actively engaged in providing false and/or misleading information under the guise of a lawful reply to my FOIL request.

Is there some other conclusion that reasonable people could reach other than the City of New Rochelle is engaged in a deliberate effort to deceive the public?

To take inventory of what I have at this point — Corps reports, the LDA and your admission of discussions between the City, Forest City and the Corps — it appears that the City of New Rochelle was prepared to enter into an agreement with a developer which would have created a massive legal liability for the City were Forest City to proceed with their plans to build a “park” with a new shoreline and the construction of a bridge, kayak launch and promenade along County property, and planting of fauna on the tidal flats in Echo Bay. This work would have entailed excavation of the “park” property and shoreline, driving pilings into the soil and other steps which would be directly against the guidance provided by the Corps in their reports; they have concluded that such work would distribute toxic metals and oil across Echo Bay and out into Long Island Sound.

It is hard to imagine that the Corps would give approval for Forest City to engage in such a project. In fact, the Corps was asked by me under FOIA for ALL records and provided none indicating such approval was sought or given. Therefore, a more likely scenario is that the City was on the verge of entering into an agreement with the knowledge that when Forest City did apply to the Corps for approval it would be denied — unless rather significant remediation work was done which they indicated would cost many millions of dollars.

Given this, the language of the LDA takes on new meaning — that although Forest City would be building the “park”, the City would own the “park” property and be liable both for any contamination of the “park” property and any “offsite” locations contaminated by that property — meaning the area where the Corps found the highest concentrations of mercury, barium and lead. So, that cost of many millions would be borne by New Rochelle taxpayers.

I expect to have a story up by about 2 PM today.

Robert Cox

Managing Editor
New Rochelle’s Talk of the Sound
http://www.newrochelletalk.com

Preceding emails:

On Nov 25, 2013, at 12:37 PM, Strome, Chuck wrote:

I have asked Kathy Gilwit to work with the City Clerk to provide all we are required to provide under the law.

—–Original Message—–
From: Robert Cox
Sent: Monday, November 25, 2013 12:00 PM
To: Strome, Chuck
Subject: Re: official statement on Army Corps of Engineers

OK.

And emails?

Bob

On Nov 25, 2013, at 9:25 AM, Strome, Chuck wrote:

Perhaps they looked for hard copies – I have asked them to look again.

—–Original Message—–
From: Robert Cox
Sent: Friday, November 22, 2013 2:48 PM
To: Strome, Chuck
Subject: Fwd: official statement on Army Corps of Engineers

FYI. This is a reply I received earlier today from the Corps…

1. How does a CD get destroyed in a flood?

2. Wouldn’t the files on the CD be stored and backed up on a server?

Bob

Robert Cox

Managing Editor
New Rochelle’s Talk of the Sound
http://www.newrochelletalk.com

====================

As for the report, it appears that it was mailed to the city’s Development Office once it was completed. Since it was produced several years ago it looks like it was physically mailed to the City’s Development Office on a CD.

We could not speak for what happened to the physical CD or the files on it (which were the ones provided to you through your FOIA request) once it reached the Development Office or who it may have been shared with locally once it was received.

Hopefully this helps answer your questions. Thanks and have a great day!

Chris Gardner
Public Affairs Specialist
New York District
U.S. Army Corps of Engineers

Begin forwarded message:

From: Robert Cox
Subject: Re: official statement on Army Corps of Engineers
Date: November 22, 2013 at 10:42:35 AM EST
To: Chuck Strome

Chuck,

This email is certainly a turnabout.

I would not say I am “frustrated” but rather “bemused” that folks at City Hall have yet to appreciate that I do not ask questions unless I know the answer. I have always had absolute confidence these reports existed because I had an email exchange indicating the Corps was doing a study. I also knew that if the City were to continue to stonewall me I had the option to make a FOIA request to the Corps.

If I appear frustrated to you it is because I have not been getting straight answers on this subject for 5 months and only now get any sort of meaningful response having obtained independently and published the reports that formed the basis for my records request.

It would appear that had I not phrased my previous email the way I did, you would have let stand the impression that the City was claiming to be unaware of the Corps report on Echo Bay. It is precisely this sort of thing that breeds distrust on both sides – I do not believe the first (or second or third or…) answer I get is fulsome and you become annoyed because I always assume I am being misled. You can’t have it both ways. If the City is not going to be forthright in dealing with me all of the time then do not expect to be given the benefit of the doubt.

In this case, I have been asking about these reports (and related records) since July. I have been told that Bennie made inquiries to the Development department. He copied the legal department on every email. You told me this week that the you personally checked with both the Law Department and the Development Department. Only today do you imply that you HAD the reports at one time but perhaps they were lost. What changed since July? If you “lost” the records in a flood that has been the case since I first made my request but I am only offered that explanation today?

And how is that you today know that the City coordinated with Forest City but you did not know that over the past 5 months?

Up until today, what I had been told was Bennie said he checked with Development and cc’d Legal. You said you checked both Development and Legal. At no point did either of you even suggest that the reports did exist but were lost. And certainly nothing about the City and FCR coordinating with the Corps.

Today, you have added the caveat “readily available files were thoroughly researched in order to respond to your FOIL request.”

New York State law does not contemplate government agencies producing “readily available” records. The Freedom of Information Law requires turning over ALL records covered under the public records request unless the agency claims one of the exemptions in the law. If the agency requires more time to produce records there are provisions under the law for extensions.

In this case, after five months of repeated requests for the Corps reports – and related records such as emails, letters, etc. – and five months of being told that the City did not have these records and that no one in City Hall had any knowledge of these reports you today tell me, after I obtained the reports from another agency and published them, that the City suddenly DOES recall these reports, and that the City and Forest City both were in contact with the Corps about these reports.

How else should I interpret this other than you locking the barn door after the cow has gotten out?

If it were proven to be the case that the Corp reports were destroyed in a flood – and I would note that you are not actually saying that the reports were destroyed in a flood and only that “numerous files were destroyed when we had the flood here at City Hall” and leaving it to me to infer meaning from that statement. Based on my experience with these records to do date, unless you say something specific such as “the Echo Bay reports by the Corps were among the records destroyed in a flood” or something like that I cannot credit the failure to produce the Corps reports to a flood and only that the records were not produced and that there was a flood. I am not going to make the inferential leap you seem to want so please speak plainly.

Now, with all that said…

Whether the reports exist in City Hall or not, there are still some email records that reference the work done by the Corps in October 2005.

I know they exist as does the City because I obtained a photocopy of one exchange from Chris Selin’s side of the exchange and sent it to Bennie and Kathleen back in August. Why have you not sent me THAT particular exchange from Suzanne D’Amato/Reider’s side?

What about records of communication between Rep. Lowey’s office and the City? Is there no record of anyone from the City requesting that Rep. Lowey or her staff seeking funding for a study or requesting the Corps conduct a study. That would seem to be clearly indicated from Suzanne’s 2006 email to Chris.

And once the report was completed, isn’t there some record from the Corp delivering the report?

How about communications between the City and the Corps? Or the City and Forest City regarding the Corps report?

Are you telling me there are no emails at all? Did the flood destroy emails too?

These emails I am sending are long.

They are long because a short request such as “can I have all records related to a study of Echo Bay done by the Army Corps of Engineers sometime around Jan. 1, 2006 (my original request) results in five months of obfuscation and then an implied “dog ate my homework” assertion.

Robert Cox

Managing Editor
New Rochelle’s Talk of the Sound
http://www.newrochelletalk.com

On Nov 22, 2013, at 8:35 AM, Strome, Chuck wrote:

Bob
Thank you for your note. I understand your frustration but readily available files were thoroughly researched in order to respond to your FOIL request. As you know, numerous files were destroyed when we had the flood here at City Hall.
Having said that, the selected developer in coordination with the City was in contact with the Army Core regarding the environmental investigation and restoration of the shoreline at the site.
Regards,
Chuck

—–Original Message—–
From: Robert Cox [mailto:mediablogger.org@gmail.com] On Behalf Of
Robert Cox
Sent: Wednesday, November 20, 2013 10:46 AM
To: Strome, Chuck
Cc: Gilwit, Kathy
Subject: Re: official statement on Army Corps of Engineers

Chuck,

You say you don’t have a copy of the report. I hear you. I do not accept that but I hear you.

I would note, however, that saying the reports are not on file with the legal department or development department is not the same thing as that they were never received or that there are no other records that indicate the work was requested by the City or that any outside person, entity or agency communicated with the City about the work done or the reports that resulted.

Realize that my FOIL request submitted to the City Clerk covers more than just the reports. Are there any other types of records regarding this report – emails, letters, agendas, minutes, etc.? That would include the email exchange between Suzaane D’Amato and Chris Selin in 2006 and since that has not been provided I can say definitively that I have not received any and all records related to the Army Corps of Engineers per my amended FOIL request from September. In fact, it, clearly suggest that no effort was made to search email records.

I don’t know if you read my article or the attached PDF documents but I would point out a few things that give me pause before accepting the idea that the City has absolutely no knowledge of a project by the Army Corps of Engineers which appears to be your position.

1. The Corps was working in New Rochelle under a grant secured by Rep. Nita Lowey 2. That occurred at a time then-Council Member Noam Bramson was working for Rep. Lowey.
2. The City selected 5 developers to receive the Echo Bay RFP in June 2005 3. The work done in New Rochelle by the Corps was done in October 2005 4. Noam Bramson became Mayor in January 2006 5. The report was issued in March 2006.

Overlayed on top of that period time was the RFP process which resulted in Forest City being selected as the developer of Echo Bay. There is also Noam’s long-standing interest in the environment, his active involvement in the proposed developed of Echo Bay and his long-time connections to Nita Lowey.

Then there is the report itself which clearly states that the work done for the report was done “in cooperation” with the City of New Rochelle, the email exchange with Chris Selin and Suzanne D’Amato/Reider which show the Development Department was fully aware of the work being done by the Corps.

Finally there is the nature of the work done by the Corps – an evaluation of an aquatic environmental restoration project. The corps web site says that they are authorized to spend up to $5 million to undertake such restoration projects. In short, the work done by the Corps was intended to be the first step in a multi-million dollar federally-funded envionmental restoration of the tidal flats (i.e., the “mud flats”) at Echo Bay in New Rochelle.

Are the people of New Rochelle seriously being asked to believe, given these facts, that no one bothered to follow up with the Corps on the results of their work to study the soil, sediment and animal life in Echo Bay?

I just find this hard to believe.

Thanks

Robert Cox

Managing Editor
New Rochelle’s Talk of the Sound
http://www.newrochelletalk.com

On Nov 19, 2013, at 4:46 PM, Strome, Chuck wrote:

I have no statement as we have checked our records and we do not have a copy of the reports you are referenced. I checked in both the Law Department and the Development Department.

—–Original Message—–
From: Robert Cox
Sent: Tuesday, November 19, 2013 11:19 AM
To: Strome, Chuck; Gilwit, Kathy
Subject: official statement on Army Corps of Engineers

Chuck,

I published last night night reports from the Army Corps of Engineers which appear to argue against aquatic environmental restoration of the area of Echo Bay around the proposed FCR development.

From going around the horn yesterday, I could not find anyone who would speak to me who recalled hearing about these ACE reports prior to my publishing them last night. This includes Al, Lou, Jim Maisano, Ron, Anthony Galletta, Mickey and several other people including some residents of Sutton Manor.

This coupled with Bennie’s shenanigans in how he has responded to my July FOIL request, suggests to me that this report was buried.

Of course, I suppose it is always possible that I am just being paranoid and that the City of New Rochelle does not have these reports. If this is the case then I would go back to the ACE and to Congressman Lowey’s office to understand why that would be the case.

I do not see any reference to these reports in the FEIS but perhaps I missed it.

Can you comment on whether or when the City of New Rochelle received the reports. Are they date stamped as “received”? Also, why the Development office could not produce them for Bennie?

Also, did the City Council receive copies of the reports going back to the publication of the reports in 2006. Have those who joined Council since then received copies?

Also, any comment on whether my take on these reports are reasonable – that the ACE is basically saying aquatic environmental restoration of Echo Bay is not a good idea and if it is done it will be expensive to meet the legal requirements for doing the work, transporting material and disposing of it?

Also, is there any concern, given the proximity of the City Yard to the North Channel, that the City itself would be liable for the costs under “polluter pays” rules?

Finally, my FOIL request still stands – all records that reference work by the Army Corps of Engineers including emails, letters, council agenda/minutes, and related documents not just the ACE reports which I now have. I will still want them.

Thanks

Robert Cox

Managing Editor
New Rochelle’s Talk of the Sound
http://www.newrochelletalk.com