SamPratt.com

Czajka camp withdraws motion in hopes of speedy hearing

This site has learned that a conference was held last Friday by Judge Dowd to discuss District Attorney Paul Czajka’s motion to dismiss Town Justice David Dellehunt’s demand for sanctions against him.

At the conference, Dowd reportedly indicated that the Appellate Division’s decision compelled him to hold a hearing on the allegations, making it difficult to rule summarily on Czajka’s motion, which was first reported here last week.

As a result, sources indicate that Czajka’s attorney agreed to withdraw the motion in hopes of securing a speedy hearing—likely in late this Spring—rather than waiting until the early Summer to resolve the dispute. Presumably the D.A.’s office employees who provided sworn affidavits as part of Czajka’s filing will instead testify at that time.

D.A. fires back at Kinderhook justice and Albany court

Staff affidavits finger former Assistant D.A. as alleged culprit in alterations

Columbia County District Attorney Paul Czajka has issued a stiff response to demands for sanctions against him brought by Kinderhook Town Justice David Dellehunt. While taking responsibility for his office’s actions, Czajka motions for a summary dismissal as he strongly denies “involvement in the alteration of a Court order… or somehow knowingly fail[ing] to inform the Court of that alteration.”

Czajka’s rebuttal, which includes several affidavits from past and present members of his staff, can be downloaded here as a PDF [1.5 MB]. Two of the affidavits point to then-Assistant District Attorney Dominic J. Cornelius as allegedly making the key alternations in question. Cornelius is now listed as a County Attorney.

Dellehunt and Czajka (now in his second stint as D.A., after an interlude as a County judge) have been engaged in a long tussle over their competing legal authorities, a dispute centering on whether a judge can insist on a trial if the D.A. decides not to bring charges against a defendant.

The dispute’s ante got upped after Czajka filed requests for transcripts of proceedings in Dellehunt’s court. The pot was then re-raised substantially as Dellehunt alleged that Czajka altered a court document without a judge’s approval.

Last month, Dellehunt’s call for sanctions was sent back to a State Supreme Court by the Appellate Division in Albany for consideration. The Columbia County Democratic Committee, which often remains silent on far less obscure matters of public interest, quickly piled on and called for Czajka’s head.

Czajka swears that “I do not seek to absolve myself from responsibility as the District Attorney… Rather I simply seek to correct the invalid and untrue statements of the Decision that I was personally involved in the alteration of the Order and somehow benefited therefrom.”

In addition to Czajka’s own rebuttal and that of his attorney, the filing includes several affidavits from D.A.’s office employee Lisa Bleau, taking responsibility for faxing the amended documents, while noting that she observed and questioned alterations to the document by A.D.A. Cornelius.

Czajka, she says, “was not in the office at that time,” and expressed surprise about the alterations after the January 6th, 2015 oral argument in Albany where this became a bone of contention. The next day, Bleau says, Czajka had her call a State Police investigator to collect all the relevant documents.

Another affidavit from D.A.’s office legal intern Ryan Carty  describes the process of the drafting and serving of documents, and appears to back up Bleau’s account regarding Cornelius.

A copy of the key fax attributes the document to former Greene County Public Defender and A.D.A. The motion also attaches numerous other records central to the case, such as an affidavit from Assistant D.A. James Carlucci describing a timeline of events.

While conceding that “the facts and circumstances as to the amendment are of course troubling,” Czajka’s attorney Peter Coffey notes that “nobody sought to develop, investigate or have examinations of witnesses as to the alteration” until long after the fact. Using unusually strong language for such replies to a court, Coffey characterizes its comments as “unfathomable” and “made without attention to the record.”

Coffey makes a motion to dismiss the sanction demand and award back the legal costs of filing the motion. In doing so, Czajka’s camp is highly critical of both the Town Justice’s assertions, and the justice system’s handling of them.

That response notes that “from the very beginning everyone knew that the original Order to Show Cause was amended/altered,” attributing any confusion due to mistaken filing of the documents by the County Clerk’s office. “How in the world can one claim that the alteration was hidden when it was sent to the very Judge who signed the original,” Coffey asks on Czajks’s behalf.

Calling it “sophistry” and “indulg[ing] in “obfuscation,” Coffey goes on to blast the Appellate decision as containing “a plethora of misstatements, untrue statements and, if one were to be harsh, reckless statements.”

Coffey further argues that Czajka “did not order the Assistant District Attorney to do this nor did he ratify it,” citing the Rules of Professional Conduct in his defense. Asserting that he “had no ‘hands on’ involvement in the preparation or service of the papers and had no conscious knowledge of the fact that there was an alteration…” Coffey states that while Czajka “had knowledge that there was an Amended Order to Show Cause,” he says he had “no knowledge at all that it was anything other than authorized.”

He likewise characterizes any assertion that his client improperly altered the documents as “scandalous, libelous and reckless,” and suggests that the charge is itself worthy of sanctions.

Czajka’s own affidavit recounts his long history of service both as D.A. and on the bench, and that despite inevitable “baseless allegations” being lodged against him he has never been “issued any punishment, sanction or instruction, public or private” by the Committee on Professional Standards or Commission on Judicial Conduct.

2013 in review

Some of the biggest ups and downs of the year include:

• Biggest Sale of a Small Object: Auctioneer Colin Stair of Stair Galleries in Hudson sold a Tsarist figurine by Fabergé for $5.2 million in October to an undisclosed phone bidder. The figurine was discovered in a Rhinebeck attic.
• Wackiest Would-Be Terrorist: County resident (and Kinderhook Elk) Eric Feight was arrested as part of a harebrained plot to build a ray gun intended to beam radiation into mosques, with the apparent crackpot goal of giving Muslims cancer.
• Most Avant-Garde New Building in an Historic District: Grigori Fatayev built this handsome black box off Willard Place behind the Allen Street home of painter Tony Thompson. The building now serves as Thompson’s studio.
• Most Welcome Threat to Leave the County: Following two catastrophic fires in 2012, and after suing the Town of Ghent for upholding its zoning code in 2013, TCI of NY threatened to move their PCB (mis-) handling business across the river to Coeymans. While many breathed a sigh of relief, reminding TCI to not let the door hit them in the back on the way out, it remains to be seen whether Coeymans will really take on the troubled company. The first weeks of the New Year may provide an answer, as the end date for the postponement of TCI’s lawsuit comes due. The company agreed to drop the suit if they found a new home.
• Liveliest Glimpse of Old Hudson: A  video of people hanging out and partying in the 7th Street park in the early 1990s was posted by YouTuber Satansdarkmetal.
• Most Misleading Local Headline: The Register-Star titled an article about the Board of Supervisors voting to keep on pursuing eminent domain against Meadowgreens owner Carmen Nero: “Board Rejects Eminent Domain Resolution.”
• Most Pandering Local Headline: For its article about a local engineer who allegedly “zoned out” while speeding a Metro-North train into a fatal accident around a curve at Spuyten Duyvil, Columbia Paper editor Parry Teasdale used this headline: “Germantown Engineer Assists Crash Probe.”
• Most Heartening Turnout at a Public Meeting: Hundreds streamed into the Livingston Town Garage for the first public meeting of Livingston Farmers & Families, which is organizing to alter or stop a massive power line project from Upstate to NYC. The meeting featured the political speech of the year, a ripsnorter by farmer and Town Board member Will Yandik, who seems destined for higher office.
• Clumsiest Campaign Rollout: The first major media introduction of newly-minted Hudson Valley resident Sean Eldridge, who is seeking to unseat Congressman Chris Gibson, came in the early Summer pages of the New York Times. But the article mainly provided fodder for his opponent. The Times’ revelations about the cost of Eldridge’s Shokan house, with the implication that he and Facebook zillionnaire Chris Hughes had shopped around for a district to run in, were swiftly followed by an Albany Times-Union exposé of how Eldridge’s campaign was paying area residents $100 a pop to focus group attack messages on Gibson.
• Most Revealing Comment by an Official Once Thought to Be More Enlightened: Mistakenly thinking that the press and public had left the room, Hudson Development Corporation director Sheena Salvino denigrated citizens who had come out to support the Community Garden as a “mob.”
• Most Revealing Comment by an Official Never Thought to Be More Enlightened: County Economic Development tsar Ken Flood shared his unvarnished opinion with Ghent resident Kevin Delahanty that “restaurants in Hudson and Chatham ... don’t provide good jobs except for the owners.”
• Worthiest Ideas Gathering Dust on Some Politician’s Shelf: In July, the Columbia County Emergency Management Council proposed a series of sensible, forward-thinking guidelines to prevent major disasters. Little or nothing has been heard about their recommendations in the six months since.
• Ugliest Use of Social Media by an Elected Official: Ghent Town Board member Richard Sardo opined in a Facebook post that MSNBC host (and Berkshire County resident) Rachel Maddow “looks very much like an ugly man.” Sardo, who coupled this assessment of Maddow’s looks with his barely-disguised hots for FOX anchor Megyn Kelly, badly lost his Tea Party bid for Town Supervisor against Republican Mike Benvenuto.
• Most Gratifying Told ’Ya So: The Valley Alliance was vindicated as the City of Hudson glumly acknowledged the group’s contention that the people, not Holcim, already owned 4.4 acres along the Waterfront. Research by the Alliance demonstrated that the riverfront lands had been improperly sold in the early 1980s without State approval.
• Least Merited Award: Hudson Phoenix president John Tonelli was given the Chamber of Commerce’s “Businessperson of the Year” award in June, just months after announcing the arrival of his plastics extrusion business. But Phoenix seemingly never made any hires, and according to a Chamber source the company had “ceased operations” by November.
• Least Festive Street Fest: A car show put on by American Glory’s Joe Fierro, with little or no notification to neighbors, shut down the 300 block of Warren Street on a Spring Saturday, but attracted little interest.
• Most Hilarious Banter Between Star Chefs: A New York Magazine article about the opening of Fish & Game featured this exchange between the restaurants’ principals, Zak Pelaccio and Jori Jayne Emde:

  Foraging for ingredients turns out to have its limitations. Before long, Pelaccio suggests we give up the mushroom hunt. Emde reluctantly agrees. “I mean, I can smell mushrooms though,” she says, then tells me about recently sniffing her way to ramps. “Zak calls me a hound dog.” She gives an animalistic howl. “It’s weird, that’s the sound I make when we’re having sex.”
  
  “It boosts my self-esteem,” says Pelaccio.
  
  “Like you need it,” she returns.
  
  “We always need it,” Pelaccio says.

• Least Effective Tool for Promoting Business: In March, the Columbia County Industrial Develpment Agency (IDA) had to revoke its Payment in Lieu of Taxes (PILOT) plan for fish-breeder Local Ocean, as the company had gone into default. Yet another past Chamber award-winner, the company announced its closing in August.
• Lamest Campaign by a Candidate Claiming to be a Skilled Organizer: Hudson’s Victor Mendolia garnered the lowest number of votes of any mayoral candidate in a two-person race in recent memory, possibly in City history. The former City Democratic chair lost his campaign manager in the process of losing to incumbent Bill Hallenbeck, despite Democrats having a massive registration advantage over Republicans, and despite Hallenbeck himself earning fewer votes than his first run. Turnout was almost half of Hudson elections of a decade ago, despite the number of registered voters staying the same. As of August, Mendolia had spent more on restaurant dinners than his campaign had banked up for the Fall campaign.
• Most Important Unread Mail: Government records uncovered by Ghent resident Patti Matheney revealed that the Department of Homeland Security had warned local emergency officials of the presence of highly-explosive sodium in the TCI building. But the warning apparently went unheeded, contributing (along with egregious negligence by the company itself) to some 12-15 explosions when water was dumped on the company’s smoldering building. Shamelessly, TCI attorney Bill Better shamelessly tried to use this revelation to deflect responsibility from his client.
• Most Confusing Campaign Signage: Road signs for the Taghkanic Republican slate seemed to deliberately conflate 20something candidate Ryan Skoda with his much better-known father, farmer (and sitting Town Board member) Richard Skoda.
• Most Concerted Effort to Deny the Obvious: Hudson City Attorney Cheryl Roberts, Alderman Cappy Pierro, Council President Don Moore, and attorney Giff Whitbeck repeatedly attempted to deny that Standard Oil had occupied a key piece of the Hudson Waterfront, even after clear evidence was brought forth to prove it. Roberts, who had incorrectly identified the Standard Oil location, and lectured citizens about being “completely wrong,” even wondered aloud whether oil tanks existed in the 1880s. Moore similarly wagged his finger at the public about “being careful.” Eventually, the Gang of Four could not help acknowleding their mistake, brushing it off with barely a shrug. (Their motivation appeared to be a desire to avoid any investigation into contamination.)
• Most Selfish Bogarting of Scarce Public Services: The new Barlow Hotel somehow convinced the City of Hudson to not only build an awning over the sidewalk, but also to grant the business exclusive use of two parking spaces in the 500 block of Warren, ostensibly for loading and unloading of baggage. The request was granted despite the block being the the busiest in Hudson, and there being a vast public parking lot immediately behind the hotel. (This frequent perambulator of that part of the street has yet to see a single guest using the two much-needed spaces for their intended purpose.) The City has not clarified what the criteria are for securing one’s own private parking spaces, but no doubt others would love to get the same special treatment.
• Least Dignified Post-Election Email: Claverack resident Chris Lastovicka broke with American election tradition in trashing the Town’s voters in the wake of her partner’s loss of her Supervisor seat. Incumbent Robin Andrews lost by 20 votes to Republican Kippy Weigelt. Lastovicka blamed weekenders whom she claimed did not turn in enough absentee ballots—despite Andrews picking up 60 votes from absentees. No blame was assigned to the candidate herself for failing to take a stand on issues such as TCI or the County Airport, or for opposing both an increase in the State minimum wage and common sense gun regulations.
• Most Blatant Media Conflict of Interest: Community radio station WGXC had scheduled an interview with recently-departed Mendolia campaign manager Clay Laugier. But the interview on the @Issue show was abruptly canceled without explanation—the most obvious being that Laugier was likely to be critical of Mendolia—a co-host of the show, on leave at the time.
• Two Most Pleasant Out-of-County Finds of the Year: Discovering that Dope Jams Records of Brooklyn had reopened in Oak Hill (Greene County) and stumbling upon an utterly authentic northern Chinese restaurant in Wappingers Falls.
• Most Missed Bar, Bar Owner, and Bar Patron: 2013 brought the sad demise of the Iron Horse bar, its owner Frank Martino, and one of its most loyal patrons—former Hudson Police Commissioner Jeff “Sweeps” Bagnall. Join me in pouring one out tonight, New Year’s Eve, for all three.

Sorry, officer! The Columbia County Dems ‘forgot’ to elect new leadership

The Columbia County Democrats neglected to elect new officers after the September 10th primary, in apparent violation of both State election law and its own Party by-laws.

 

Section 2–112 (1) of State election regs for party committees states that

every county committee shall within twenty days after its election… meet and organize by electing a chairman, a secretary, a treasurer and such other officers as they may by their rules provide.

In other words, the County committee was supposed to meet and elect new officers by September 30th. This rule is reiterated in the County Dems own internal by-laws. Moreover, within three days after officers are chosen, the State says that

all state and county committees shall file in the office of the state board of elections a certificate stating the names and post office addresses of such officers. County committees and any other committee contained therein shall file a copy of such statement with their county board of elections.

But neither of these steps were taken, which are a necessary precursor to the election of Town chairs for the party.

 

The State Election Law is not clear about the consequences of failing to meet these deadlines. At best they could be construed to mean that the previously-elected officers continued to serve as fill-ins until a new vote was cast; at worst, it raises a question if any actions taken after September 30th by officers with expired terms was invalid or improper. 

 

It’s also not clear whether the Dems’ oversight was due to forgetfulness or a deliberate effort to postpone any reckoning for the current leadership. A number percentage of prominent Democratic incumbents were unseated in this cycle, such as Claverack Supervisor Robin Andrews and Copake Town Justice Brian Herman.

 

But at last, the previously-elected County chair, Cyndy Hall, has finally called a meeting—almost three months late—to elect new officers Wednesday at 6 pm at Ghent Town Hall on Route 66. The email announcing the meeting says that “everyone is welcome to run,” though the short notice likely means that few if any new faces will step forward. The leadership (the term is used here lightly) may have had reason to keep the blunder quiet: if a vote is called to fill vacancies, that could mean that any enrolled Democrat could throw their hat in the ring, whether they are an elected Committee member or not.

Claverack’s special counsel goes AWOL

In an unexpected and inexplicable new twist, the lawyer hired by the Town of Claverack to make its case at last week’s cringe-making hearing to remove firefighter Nathan Chess from the planning board suddenly appears to be off the case.

A leaked email sent to special counsel Dionne Wheatleigh, who conceded drafting most of the brief attacking Chess that was signed by Supervisor Robin Andrews, yielded this automated response yesterday afternoon:

I have retired from RWGM.  All of my messages are being forwarded to Elayne Gold. 

 

For further assistance, please contact Karen Pelland at 518-464-1300 ext. 406

Thank you,

 

Dionne Wheatley

Roemer Wallens Gold & Mineaux LLP

At the hearing, Wheatley certainly did not appear to be of retirement age, leading one to suspect an inapt choice of words. A second message sent yesterday evening from Wheatley’s account appeared to be hand-typed, not automated:

Please be advised that as of 9/30/13, I will no longer be with the firm and thus will not be accessing email.  Emails to this email address may be viewed by another colleague for a short time.  Additional communications such as the documents from Mr. Chess and the hearing transcript should be mailed to me as indicated below.

The second message is even more difficult to parse: Why would follow-up materials related to the hearing be mailed to Wheatley, if she is “retired” or “no longer... with the firm?”

Where does the Town’s heavyhanded campaign impugning Chess’s character stand, if their attorney who spent months preparing their case has decamped? Getting a new attorney up to speed on the endlessly byzantine and not-terribly-convincing line of argument crafted by Wheatleigh with Andrews would seem both time-consuming, and costly. Reportedly, one of the firm’s partners has been assigned to the matter, at least for the moment.

Bad lawyering in Better letter

“Nothing more than a fire,” in the words of TCI attorney William Better. (PHOTOS: Mark Johnson, Lance Wheeler, Matt Perry, YouTube)

Is TCI attorney Bill Better ignorant of basic zoning law and environmental precepts? Or is he just counting on his audience to be clueless?

It’s hard to tell, here on the one-year anniversary of the company’s devastating fire and explosions in Ghent... at least, based on Better’s carping and tendentious letter this week to the Columbia County Emergency Management Council, or EMC. 

This site obtained a full copy of Better’s letter on Wednesday; it can be downloaded in full via this link.

As first reported here, the EMC issued a memorandum in late June recommending new steps be taken to prevent further disasters like the one at TCI at the start of last August. The day-long fire forced thousands of County residents indoors, and put countless firefighters at risk.

In response to a well-founded critique that the company failed to seek required permits, TCI’s legal flack blusters that “the Town requires no such approvals and there is no office or official prepared to issue them... No Town or County codes exist with respect to PCBs.”

Unfortunately, Better’s argument just doesn’t pass the legal laugh test. And to understand why does not require a law degree.

There are two basic types of local zoning codes in New York: Restrictive or Permissive. Restrictive zoning only allows those activities which are specifically identified as permitted uses. Any other uses not specifically spelled out in the code are not allowed. Permissive zoning is the reverse: Any uses not specifically prohibited are allowed.

Almost all towns in our region—including Ghent—opt for restrictive zoning, for a one very obvious reason: Because it’s impossible to anticipate every single cockamamie idea that some human or corporation might propose.

Thus when Better fails to find anything in the Ghent code mentioning the dechlorination of PCBs, that absence ought to have told him that it is unpermitted. Instead, TCI’s attorney plays (or acts) dumb, as if not understanding the fundamental premise of restrictive zoning.

The only way for such an unusual use to be allowed as-of-right within a restrictive zoning code would be to argue that it’s a “customary accessory use” to some other permitted activity. For example, you can have a swingset in your backyard even if your local code does not mention swingsets, because everyone agrees swingsets are customarily found on residential properties.

But no reasonable person would say that bringing in an outside contractor to heat PCBs in a trailer and dose them with explosive sodium is customary to a commercial or manufacturing business in Ghent. In any case, even Better does not even try to advance such an absurd argument. (NOTE: It also has been argued in Ghent that the mere act of bringing in a second company to the TCI building in itself should have triggered a permitting request.)

Next, Better struggles to argue that TCI’s catastrophic explosions, which leveled their facility to the ground, were “nothing more than a fire.” As such, he feels the EMC was “wrong to describe the fire as an ‘environmental incident’.”

What this lawyer characterizes as a mere “fire” prompted County emergency management officials to tell all residents within a 15-mile radius to stay indoors all day, and required a response from virtually every fire company within that same radius.

More to the point: Does Better really believe that it’s environmentally safe and legal to dispose of PCBs in a gigantic, uncontrolled bonfire punctuated by multiple explosions?

If that were the case, TCI would be in a different business: burning PCBs in huge ad hoc bonfires. After all, why bother trying to dechlorinate PCBs, or to dilute them in mineral oil, if it were environmentally safe to just torch them? There is no question that TCI’s facility contained large quantities of PCBs; the estimated amounts onsite at the time of the fire are spelled out in the company’s own engineering report.

In an attempt to minimize his client’s negligent management , Better falls back on a favorite weasel word of apologists for polluters: “measurable.” His letter argues that no “measurable contamination” was found in the surrounding air, soil or water. Once again, neither the facts nor common sense are on Better’s side. In point of fact, even the limited testing by EPA and DEC did find “measurable traces” of PCBs near the former plant site, including at least one hotspot.

And of course, if PCBs have disappeared in a fire, it’s likely they were dispersed widely, or volatilized into something else. But notoriously, those agencies did not take the promised step of reassuring the public by testing for dioxins and furans, into which PCBs often transform when incinerated.

The shameless sophistry of Better’s “environmental” argument is also on display in the statement that “less than 5% of the material on site the night of the fire involved PCBs.”

Once again, TCI’s lawyer seems to expect his readers to be unfamiliar with the rudiments of chemistry and combustion. With a highly-toxic substances, 5% is a very large amount. Saying that “only” 5% of the material burned involved PCBs is like a bartender reassuring a customer that only 5% of his martini contains arsenic.

Meanwhile, Better conveniently ignores that TCI’s disaster—its second fire of 2012—sent up a thick, dark plume observed for many miles around. The vast size of that plume meant that nearly all of its building materials and contents, including those PCBs, were distributed as soot or gases over a large area—making it unlikely that high concentrations would be found in any one spot. But this does not make unplanned, accidental incineration safe or legal.

Industrial polluters often try to escape responsibility by spreading their effluvia over a large area (typically, from a tall stack) making it difficult to definitively finger them for the spread of pollutants. But we know that PCBs were improperly burned in their unintended infermo. And as any Environmental Sciences 101 student knows, dilution is not a solution to pollution.

Better also works himself up into high dudgeon in protesting the supposed lack of “courtesy” extended to his clients by the EMC. It was not a secret that the EMC was studying ways to address future potential disasters, based on the TCI fire; indeed, Better showed up unannounced at a February EMC meeting to make his case, taking the added hostile step of bringing along a stenographer, as if the meeting were a court proceeding.

Better’s feigned ignorance of the EMC’s workings, and show of being offended by its lack of deference, perhaps is a reflection of how the attorney is used to being treated with kid gloves by the County. (Better is a former County attorney, who stepped down after three female employees filed sexual harassment lawsuits against him.)

The minutes of the Columbia County Economic Development Council (EDC) suggest how Better normally expects his clients to be mollycoddled. Himself a board member of the EDC, but frequently absent from its meetings, Better did show up for the February 26th, 2013 meeting—at which TCI boss Brian Hemlock made a presentation. Hemlock was personally introduced by EDC Chair David Crawford, whose engineering firm Crawford & Associates works and advocates for... TCI. Hemlock “asked the board for their support for the company by attending meetings” about the company’s plan. Of course, none of the many residents concerned with the fallout from TCI or its plans to rebuild were invited.

Better even goes so far as to downplay the extreme risk to which Columbia County firefighters were exposed a year ago on the night of August 1st-2nd, saying that “no firefighter was injured in the fire.” Leaving aside the possibility that firefighters may have been exposed to various toxic emissions at the site, the fact that TCI just barely missed an even worse disaster should not reassure anyone. 

As Churchtown firefighter and 1st Lieutenant Nathan Chess wrote in a widely-circulated letter, “We were only minutes away from bagpipes and flag-draped coffins.” But apparently Better thinks that the risk posed to the County’s first responders was acceptable, because they retreated from the explosions just in the nick of time. 

As one TCI neighbor commented after reading Better’s letter: “How and why does Bill Better think he is the authority on what regulations would be onerous or unnecessary for the safety of Columbia County? The gall of this guy is shocking.”

Quotable Kinsley

The scandal isn’t what's illegal; the scandal is what’s legal.

— MICHAEL KINSLEY (NOVEMBER 15, 1990, ON CROSSFIRE)

TCI granted six months to get out of Ghent

In an interim settlement of a specious lawsuit brought by TCI of NY, the Town of Ghent has agreed to give PCB (mis-) handler six months to find a new town to bedevil.

According to an attendee of yesterday’s hearing before judge Jonathan Nichols, TCI and Ghent have signed a “tolling agreement” which suspends the lawsuit. TCI had claimed in court filings that the Town’s attorney had a conflict of interest, and had asked Nichols to prevent Ghent from enforcing its Zoning code.

Assuming TCI finds a new home in one of three other towns they have approached, including Coeymans, the company will void its application to rebuild in Ghent, and the Town will hold TCI harmless for its actions. (Good riddance to bad rubbish?) The Albany Times-Union has previously reported that the company also has scoped out sites in Saratoga, Washington and Rensselaer counties.

The company also will pay $12,500 to cover Ghent’s expenses thus far related to the now-aborted reviews. If TCI has not found a new home by the start of 2014, it could in theory reinstate its legal objections, and resume its quixotic pursuit of fresh permits from Ghent, and would presumably have to contribute an additional retainer for that review. More likely, one suspects, is that the two parties would extend the tolling agreement for another 3-6 months to give TCI more time to skip town.

The most eyebrow-raising part of the agreement is an unusual clause demanded by TCI, which compels Ghent officials to “refrain” from any “involvement” or “interference” with the company’s efforts to find an alternate site in another place

This leaves a strong appearance that TCI is afraid that Town officials might be contacted by other municipalities to which the company has applied for asylum, and that the neighboring officials might hear details of their time in Ghent.

Considering that Ghent now seems eager to have this thorn in their side removed, it’s hard to imagine that it would do so. If anything, the clause seems as likely as anything to backfire. Just imagine someone from, say, the Coeymans Planning Board (which has already called TCI on the carpet) phones a Ghent official seeking advice. But Coeymans is told by Ghent told that it is under a gag order not to talk about TCI’s operations. Wouldn’t that set off as many alarm bells with the person calling as anything the official might tell them?

In any case, with TCI’s two 2012 fires extensively covered in the T-U, New York Times, YouTube, and various local news outlets, any potential new host doing even cursory research would probably stumble upon reports of the company’s past troubles. Wherever TCI lands, they are likely to face far more scrutiny and oversight than they have had to endure over the past three decades in Columbia County.

A Tale of Two Cases

 

New Lebanon Town Justice Jessica Byrne-York (Source: GCN News)

Last week, Columbia County District Attorney Paul Czajka drew applause from pro-gun quarters for declining to prosecute the first man arrested under New York’s new SAFE Act.

Gregory Dean of Hopewell Junction had faced charges for having nine bullets in his .40-caliber pistol, two more than the new legal limit of seven. Published reports gave no indication of any objection from Town Justice Jessica Byrne-York to Czajka’s exercise of prosecutorial discretion.

Meanwhile, less than an hour to the north, an Albany judge took a very different view of another exercise of such discretion. Assistant District Attorney David Rossi declined to call witnesses against members of the Occupy movement who had camped last summer in a local park.

But the judge in that case, William Carter, did not look so impassively on Rossi’s decision as Byrne-York did on Czajka’s. Instead, Judge Carter warned the Assistant D.A. that he could be charged with contempt of court. (Note that Rossi was understood to be carrying out the wishes of his boss, the progressive Albany County D.A. David Soares, who has refused to prosecute other trespassing cases against Occupy.)

Why the difference in handling? No doubt some legal expert can find some way in which the two situations are “distinguishable,” and don’t present a contradiction. But to a layperson, the principle in play appears to be the same: Does a prosecutor have the right not to press a case following an arrest—whether for ideological, budgetary or other reasons?

In these two cases, it looks a lot like the difference in judicial approach has less to do with differing interpretations of the law, and more to do with either politics or control, or both.

In the gun case, one suspects that the New Lebanon Town Justice shared Czajka’s position on the SAFE Act, and thus did not view the D.A.’s exercise of discretion through a hostile lens. (Byrne-York was in the news early last year after recusing herself from the case of 28 teenagers found drinking at the home of Republican Town Supervisor Michael Benson.) In the Albany case, there is no obvious evidence of any hostility to the Occupy movement from Carter. But the Judge may view the repeat declinations by the D.A.’s office as a threat to his authority.

For Czajka, the issue of prosecutorial discretion is also not a new one. In December, Judge Jonathan Nichols (another Republican, though one generally considered moderate) sided with the Columbia D.A. in his dispute with Kinderhook Justice David Dellehunt, ruling (per The Columbia Paper) that “unfettered discretion to determine whether or not to prosecute an individual and the Courts may not and should not interfere with that discretion.”

UPDATE: A reader points to this editorial a couple days ago in The Albsny Times-Union, which raises the same disconnect between the two cases, and posits another explanation. The paper alleges that Judge Carter has a close affiliation with a candidate that was beaten out by Soares for the D.A. slot, and who still bears him some animosity.

Standard Oil debate vindicates citizens, shames experts

Over at The Gossips of Rivertown, Carole Osterink reports that the debate about whether Standard Oil occupied a key parcel in the City of Hudson has been settled—with skeptical citizens fully vindicated.

The City’s title searcher has belatedly conceded to Giff Whitbeck (who strove mightily to prop up his law partner Cheryl Roberts’ untenable claims) what resident researchers such as Tim O’Connor and Cheryl Stuart already knew. Namely, that the oil company most certainly did have a presence on the acreage in question.

The immediate impact of this tardy and grudging acknowledgement should be for the City to stop dodging a full environmental assessment of the land they want to acquire. But don’t hold your breath on that due diligence. Given Roberts’ monomaniacal obsession with securing State approval for her deeply-flawed waterfront plan at any cost, it would hardly be surprising if some new rationale for ignoring potential contamination emerges.

There ought to be another, more lasting impact of this sorry episode: Hudson elected officials finally may be forced to doubt the integrity of their counsel’s advice.

A review the recent reporting on how this matter was handled does not redound to the City’s credit, to put it mildly. There’s no getting around the stark fact that the claims and retorts emanating from the official side of the table in response to sincere, well-researched citizen input have been egregiously (and even offensively) mistaken. Officials took their experts’ vague assurances as gospel, while undercutting every piece of citizen research, at their own peril.

Start with the howlers contained in The Register-Star’s April 21st, 2013 article:

• Common Council President Don Moore in response to a well-researched memorandum about the land transfer from Citizens In Defense of Hudson, lectured Stuart “to be careful with her accusations.” 
• Attorney Roberts was even more condescending in her response, thundering at Stuart: “You are so completely wrong in your legal assessment of that document, I don’t even know where to start.” 
• Roberts also told the Council that “The Standard Oil piece is north of the port.” 

Now head back to Gossips on April 18th:

• “At the informal Common Council meeting on April 8, city attorney Cheryl Roberts reported that the title searcher hired by the City had not discovered Standard Oil ownership of any land south of the port.” 
• “Roberts addressed the issue by saying that there was ‘a serious misunderstanding about what a title search is.’” 
• “Roberts' placement of the Standard Oil property was confirmed by Alderman Cappy Pierro (Fifth Ward), who said that ‘oil barges pulled up where the Spirit of Hudson docks now.’”

Gossips continued its pursuit on April 25th:

• “City attorney Cheryl Roberts questioned whether there were such things as oil tanks in 1888.”
• “Assistant city attorney Carl Whitbeck provid[ed] evidence that nothing ever existed on the Hudson waterfront west of the railroad tracks and south of the port.”

It’s now painfully clear that each of these official, lawyerly, patronizing assertions were at best laughably mistaken, at worst nastily misleading:

• Despite Moore’s finger-wagging, Stuart’s group proved to be not only “careful,” but also correct;
• Roberts, not CIDH, was “completely wrong” in her legal assessment;
• Standard Oil was south, not “north of the port” as Roberts claimed;
• A sustained barrage of evidence from O’Connor, Gossips and CIDH was required to convince a professional title searcher to admit what a host of amateur sleuths found out on their own;
• The only “serious misunderstandings” seem to be those harbored by Roberts, Whitbeck and the City’s title searcher;
• Aldermen who claim direct knowledge of activities which ceased at about the same time as the First World War are not reliable narrators.

Hudson has many unique features, among these being a rare species of elected official who, unlike the rest of the human race, lacks a natural distrust of lawyers. Renewing a skepticism which traces its lineage at least as far back as Shakespeare, once again local citizens have witnessed firsthand how possession of a law degree does not in itself guarantee the deliverance of honest, well-informed counsel.

When it comes to professionals in the pay of City Hall, the operating principle seems to be: Don’t trust us. We’re experts.

You’ll want to read Sunday’s Times-Union

UPDATE: The article discussed below is now live at the T-U’s website. Also, Pflaum has posted a new synopsis of his ‘Sleepergate’ research.

The front page of today’s Albany Times-Union leads with an explosive investigative report by former local reporter Jamie Larson.

Larson’s research finds that attorney Tal Rappelyea often billed area government for as much as 70 or 80 hours of work per week, reaching a peak of more than 90 hours—and on two occasions, what looks like more than 24 hours in a single day.

Larson’s article independently confirms much of the reasearch of Stuyvesant activist Will Pflaum, who is quoted at length in the article. Rappelyea, County Attorney Rob Fitzsimmons and others offer various explanations or justifications for the seemingly impossible billing. D.A. Paul Czajka, who Plaum elsewhere says he briefed in detail on the allegations, says he cannot comment on whether there is an investigation.

All this also assumes that Rappelyea had no non-governmental clients. If he had any private clients during this time, his workload would be even more superhuman. The attorney states that the 24+ hour days can be explained by the way his 30-hours-per-week for the County are billed: He says he does a total of 30 hours per week of work, but the County bills it at six hours per day, inflating the perceived daily totals. Yet even if one subtracts six from a high of 26 hours, that still makes for a 20-hour day—working continuously from 4 am to midnight. Plus those subtracted six hours would have to be added to some other day.

But if you want to read the story, you’ll have to either buy the Sunday print edition, or wait until later in the week for it to go online.

Plaum reacts to the piece in an email to this site:

I’ve been jumping up and down waiving invoices in front of Ron Knott, Pat Grattan and Paul Czajka for a year. The comptroller, the AG, the IG, the BAR association, the Joint Commission on Public Integrity, the state police: no one has taken the credible complaints about ongoing fraud seriously. It is still going on. The total damage to the taxpayer from the no show jobs at the county attorney's office is over one million over several years.

We are not talking about [one] lawyer. There are many no show jobs, just like Rappleyea. We are talking about a systematic failure county wide, state wide. We need comprehensive ethics reform covering local and municipal government.

Pflaum’s original post on what he’s dubbed “Sleepergate” (since it would appear Rappelyea gets very little shut-eye) is at this link.

TCI: What’s the story on what they stored?

Cleanup at TCI is being closely guarded. PHOTO: Lance Wheeler

What was stored at TCI, the PCB waste handler whose building went up in flames earlier this month? And what was the company supposed to be storing?

An engineering report was released recently by the New York State Department of Environmental Conservation (DEC), disclosing what TCI has pieced together so far about materials present in its Ghent facility at the time of its massive August 1st inferno.

That inventory appears to run up against other public statements by the company and official sources, and against the past expections of the Town of Ghent. Such conflicting information in turn points to key questions about about what TCI was permitted to store onsite in the first place. In several cases, it appears that the company obtained materials handling and transport permits from State or Federal agencies, without updating the Town or local firefighting companies about new activities.

To come to grips with these seeming contradictions requires a brief trip back in time, as well as a review of more recent information which has come to light. (Regular readers will have to bear with any repetitions below.) These questions may prove central to the question of whether TCI will be able to rebuild, and how residents can be protected from similar disasters in the future, whether involving this company or others like it.

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This site has previously noted the discovery of documents sent by Town of Ghent attorney Ted Guterman to the Town’s Planning Board chairman on behalf of the Town Board in 1989. Guterman attached to his cover letter what he called “a Position Statement that the Town of Ghent has issued in connection with to [sic] TCI, Inc.”

This letter came several years after TCI received a building permit, and was in response to a proposed incinerator the company sought to add to its Falls Industrial Road site. That incinerator never came to be. But the Town’s Position Statement contained many eye-opening statements about the genesis of the facility—statements which are especially relevant today, since the company has had two fires in eight months, and says it intends to rebuild.

Among many other things, the Town’s two-page letter stated that:

• “The Town of Ghent has always been and continues to be concerned wth any possible environmental impact evolving out of the operations of TCI, Inc.”

• “When TCI initially applied for a use permit in 1986... [i]t was specifically indicated that the process would not include nor would TCI accept any material that has been manufactured as PCB equipment.”

• “It was further indicated that any oil filled electrical equipment would be tested and drained prior to be received at the premises in order to insure that there were no PCBs.”

• “The Town is further concerned that the process, if approved by ENCON, will not result in any toxic waste generated or disposed of on the property or through the air, including PCBs.”

• “[T]he Town of Ghent Zoning Ordinance contains a provision specifically prohibiting storage collection, retention or utilization of toxic waste products or by-products or other similar toxic chemicals in any district within the Town of Ghent.”

Got that? No PCB equipment, no PCBs, no disposal of PCBs or other waste through the air and no storage of toxic waste products or by-products or other similar toxic chemicals in any district. Information which slowly has come to light in the aftermath of the TCI suggest that at least some of the activities the Town had deemed unwelcome were in fact occurring at the facility.

Again, all of the direct quotes above come from Ghent Town Board’s own 1989 statement, as conveyed by its lawyer. And as we’ve seen previously, those sentiments were echoed at the time in a Times-Union article which quoted attorney Jason Shaw, who was then representing the nearby Gallagher Stud farm, as stating:

“TCI was not forthcoming about the presence of PCBs when it applied three years ago to open its operation. I don’t think TCI was up-front about the fact that there would be toxic substances at the facility... They did not clarify the definition they used in an attempt to muddy the issue.”

The T-U also wrote at the time that “Town attorney Theodore Guterman said he remembers [TCI chief David] Laskin telling the Planning Board there would be no PCBs on the property.”

 

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Now, compare this 1980s background concerning what was planned to be stored on the TCI site with the inventory reported in a memoradum by Hudson-based engineering firm Crawford & Associates Engineers, and posted recently on the DEC’s website.

In the Crawford memorandum, the firm’s vice president Brandee Nelso states that though TCI’s records were destroyed in its massive August 1st fire, the company has been attempting to reconstruct its storage from discussions with clients. Nelson states that “according to the eecords TCI has obtained, quantities of regulated and non-regulated materials at TCI are estimated as follows:”

• 750,000 to 1,000,000 pounds of non-regulated materials consisting primarily of electrical equipment

• Non-regulated mineral oil – approximately 125,000 gallons Diesel fuel – approximately 500 gallons

• (3) 6,800 pound transformers, each with an estimated 255 gallons of dielectric fluid (mineral oil) with PCB concentrations of 930 ppm, 1,300 ppm and 1,600 ppm, respectively.

• 9 drums of PCB Debris, which it typically soil or absorbent materials, with a total weight of approximately 1,779 kilograms

• 6 bushings, each with 15 gallons of 50-499 ppm PCB, having a total weight of 1,304 kilograms

• 2 Oil & Water Drums, used for floor washdown and assumed to have PCBs, totaling 100 gallons and having a weight of approximately 462 kilograms. 

In a telephone interview on August 7th, this site asked Kenneth Bogdan, Ph.D of the State Department of Health’s Bureau of Toxic Substance Assessment whether his State agency had any firm idea of what was stored at TCI. Bogdan indicated that while it was unclear at the time, he believed there was only one drum of PCBs onsite—a statement that mirrored other official reassurances on the Thursday afternoon the fire.

Mason

Similarly, John Mason of Hudson-Catskill Newspapers had reported on August 10th that company co-owner Brian Hemlock and former controller Fran Vecellio “have said there were likely to be very few PCBs in the building at the time of the fire.” Hemlock was further quoted as saying that: 

“Only equipment testing less than 50 ppm are accepted and processed at TCI of NY, LLC.”

Yet the Crawford inventory shows that TCI now believes it had not one but eleven drums onsite which contained an unspecified concentration of PCBs, and 90 gallons of bushings containing PCBs in the hazardous 50-499 ppm (parts per million) concentration, plus three transformers containing 765 gallons of fluid with a whopping 930-1,600 ppm of PCBs.

Indeed, a DEC “investigation has determined that three transformers located inside the facility at the time of the fire contained levels of PCBs between 1,000 and 2,000 ppm,” far in excess of both the company’s original stated intent, and more recent statements.

 

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Oddly, the Crawford inventory of storage at TCI does not mention sodium. Sodium is known to cause violent explosions when it comes in contact with water and other substance, and has been repeatedly cited as a principal firefighting concern on the night of the inferno. Sodium would be a likely cause of the 10-15 fireballs witnessed by first responders and neighbors on the night of the catastrophe.

As WAMC’s Dave Lucas reported on August 14th:

“[T]he building housed mineral oil tanks, tractor trailers containing fuel oil, propane tanks, and other hazardous substances, including sodium that came from transformers disposed of at TCI.”

State records indicate another limited liability company, KMOJ Acquisitions LLC, which like TCI is incorporated in Delaware and appears closely related to TCI, stores petroleum in bulk on the site.

A consent order just signed with DEC (which allows TCI and KMOJ to move stormwater into the nearby Widow’s Creek) indicates a number of permits the State has on file for the company that may not have been known to local officials. DEC notes for example, permitting for the site as a “registered petroleum bulk storage facility” and as a hauler of “non-hazardous industrial/commercial, hazardous industrial/commercial, and waste oil.”

Mason has also reported that the West Ghent fire company had been unaware that a TCI subcontractor, Power Substation Services incorporated in Florida,“had brought sodium on the site for use in recycling transformer oil.” Mason quoted West Ghent chief James Cesternino as saying “The fire company never received any haz-mat inventories from PSS nor was the sodium ever mentioned to us at our last building tour.”

According to The Columbia Paper, PSS “stored materials within the building” as follows:

• 16 - 55-gallon drums of sodium metal
• 3 cylinders of gas/liquid mix of sodium and oil
• 2 - 150 gallon diesel tanks
• Several nitrogen tanks

Fatalities among firefighters were narrowly averted only because at the last minute, a TCI employee saw first responders “setting up the hose lines and informed [them] that there was sodium in the building and it reacts violently with water. It becomes explosive and produces hydrogen gas.” As firefighter Nathan Chess has written:

“It is only based on sheer luck that a serious loss of life was avoided. It was only based on basic ‘off the cuff’ comment by the company’s ‘keyholder’ that the responding units were advised that there was a substantial amount of solid sodium stored in the plant. This chemical is used as part of alternative treatment of low level PCB (< than 50ppm). But when exposed it creates an exothermic reaction and produces hydrogen gas...”

Dr. Mitchell L. Gaynor, who previously discussed his concerns about the TCI fire based on his extensive expertise in environmental carcinogenesis, has also noted that the material safety guidelines from companies like Sargent Welch recommend that sodium metal be stored in “red storage... away from any strong oxidizers,” for example in a “dedicated flammables cabinet,” in a “cool, dry, well ventilated, locked storeroom away from incompatible materials,” as well as keeping it immersed in mineral oil. 

Gaynor then asks:

“Why would TCI and PSS store a mix of highly explosive chemicals in close proximity in their warehouse, which also contained highly toxic PCBs, which when incinerated at high heat create the most potent carcinogens known to man?

“Chemical storage guidelines from the CDC state that nitrogen and sodium metal are incompatible chemicals and should not be stored nor used near each other as they might cause explosive reactions if mixed. What industrial purpose would be served by storing 16 55-gallon drums of sodium metal near nitrogen tanks, diesel and oil, as was done at the PSS/TCI facility the night of August 1, 2012?

“Given the highly flammable and explosive nature of these chemicals, was West Ghent apprised of this, and what contingency and evacuation plans were in place for the town and surrounding counties?”

All of this again raises questions not just about what TCI (and PSS) had stored on the night of August 1st, but what it had been permitted to store locally, what it had been reporting to various local, County, State and Federal oversight agencies, and what its commitment has been to keeping these materials stored safely.

 

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Taken in both its historical and its recent context, the Crawford inventory of TCI’s storage thus points to at least three central issues for further investigation:

1. Given the Town’s stated expectations in 1986-1989 that “no PCBs”—or at best that only very low concentrations of PCBs—would be present at TCI, how does this square with the current inventory?


2. How does this inventory (and the apparent presence of other substances such as sodium) square with the Town’s 1989 reference to zoning prohibitions against storage of certain types of materials “in any district” of Ghent?


3. What was stipulated, if anything, in any use permit issued to TCI when it was first built, and was that local permit ever modified or enforced? 

Reviews thus far in local records leave vast gaps in even rudimentary permitting information for TCI’s operation.

It is not even clear at this point whether any formal application was submitted in 1986, beyond the company’s brief letter of introduction; or whether any special use or other ordinary permit was issued along with TCI’s building permit; or whether any SEQR (State Environmental Quality Review) process was performed for the facility; or whether any local permit modifications were ever requested, apart from the failed attempt to build an incinerator, for all the other materials brought onsite.

Until such documents come to light—and they may never materialize, much like the company’s untraceable PCBs—concerned observers are left to wonder whether there were major omissions in the process, major misunderstandings, or outright violations that are going uninvestigated.

 

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As has been said before: If any ordinary Columbia County resident took all the cans of paint, turpentine, gasoline, bleach or even ordinary garbage from his or her garage or basement, and burned it in a barrel in the backyards, that ordinary resident almost surely would wind up in trouble.

Likewise, if any of ordinary resident had two big fires in the same year at his or her home, neighbors understandably might begin to wonder about how committed that person was to basic safety.

And if, as a result of a community fighting and cleaning up from fires, that ordinary resident was discovered to be to storing unexpectedly large quantities of unusual equipment and fuel—let alone PCB wastes—someone surely would ask to see that person’s papers. 

Yet to date, no public mention has been made of any potential fines or enforcement actions against TCI by local, County, State or Federal agencies. And there is little paper trail to explain how these activities and storage came to be accepted in the context of the Town of Ghent’s zoning code.

If there are good answers, it’s incumbent upon elected and appointed officials, as well as the company—which still has not responded after several weeks to this site’s request for an interview—to take the lead in providing them.