Excessive PCBs in the Hudson River: Attributable to Incompleteness of Dredging, or to Seven Years of Dredging? - Source: Environmental Claims Journal

Below is the abstract of an article by Dr. Robert Michaels [corresponding author, bam@ramtrac.com] and Uriel M. Oko recently published in the Environmental Claims Journal.   The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:  

https://www.researchgate.net/publication/316464957_Excessive_PCBs_in_the_Hudson_River_Attributable_to_Incompleteness_of_Dredging_or_to_Seven_Years_of_Dredging

Abstract¹

GE recently completed a seven-year US EPA-mandated clamshell dredging project to remediate PCB contamination of the Hudson River. Post-project PCB levels in water and fish, however, are higher than anticipated, suggesting to some the need to extend the project to remove more PCB-bearing sediments. Our investigation of the effectiveness of the dredging project revealed that a previously unconsidered physical process must mobilize sediments as a result of dredge bucket closure. We also used computerized dredging data (‘bucket files’) to estimate the fraction of dredged sediments returned to the river instead of being deposited into waiting barges. We conclude that excessive post-project PCBs in the Hudson River predominantly are attributable to sediment mobilization by clamshell dredges. We predict that proposed extension of the dredging project would prolong mobilization processes, allowing PCBs to spread widely and enter ecosystems that include people, endangered fish such as sturgeon, and endangered birds such as bald eagles.

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1 Michaels, Robert A; and Uriel M. Oko.  Excessive PCBs in the Hudson River:  attributable to incompleteness of dredging, or to seven years of dredging?  Environmental Claims Journal, 29(2):115-40, 2017; online:  http://dx.doi.org/10.1080/10406026.2017.1307007, 25 April 2017.

Applying the terms of an agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him.

Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm

New York State's double jeopardy legal loophole closed

On October 16, 2019, New York State Governor Andrew M. Cuomo  announced that he had signed legislation (S.4572/A.6653) to close New York's double jeopardy legal loophole that protects individuals who are pardoned by a President from being prosecuted at the state level for the same offense. 

This key reform, which was an Attorney General's program bill, gives New York prosecutors discretion to pursue prosecution of criminal acts where they have jurisdiction.

School Board's abolishment of a position challenged by residents of the school district

The Board of Education [Board], on the recommendation of the School Superintendent, voted to abolish the position of assistant principal at the school district's Junior-Senior High School. The Board then created an "interim position" of District Administrator for K-12 Curriculum, Instruction, and Student Support Services.*

Certain residents of the school district [Petitioner] asked the Commissioner of Education to annul the Board's resolutions, contending that the Board's actions were arbitrary and capricious because the Board did not, among other things:  (1) discuss the resolutions at a public meeting; (2) provide a rational basis for their decision; (3) collaborate with district professionals; or (4) consider actual curricular needs, adverse consequences or relevant data.

The Commissioner ruled the Petitioners' appeal must be dismissed for lack of standing, explaining that an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only individuals who are directly affected by the action being appealed have standing to bring an appeal.

Here, said the Commissioner, Petitioners "merely assert that they are residents" of the school district and "[s]tatus as a resident of the district or as a parent of a student does not, in and of itself, confer capacity to seek review of the actions of a board of education with respect to its employees."

Noting that Petitioners also alleged that the Board had violated the State's Open Meetings Law, the Commissioner pointed out that the Open Meetings Law, Public Officers Law §107, vests exclusive jurisdiction over complaints alleging violations of the said law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner as the Commissioner has no jurisdiction to address the Open Meetings Law allegations.

* Certain residents [Petitioners] in the district had initiated a hybrid proceeding pursuant to CPLR Article 78 challenging the Board's abolition of the assistant principal position and then creating the position "interim position." Supreme Court dismissed Petitioners’ claims on the grounds that the Commissioner of Education had primary jurisdiction over such claims and Petitioners turned to the Commissioner for relief.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17762

Failure to serve a timely notice of claim otherwise required by law on a public entity

The Nassau BOCES Educational Administrators Association [Association] commenced this CPLR Article 78 seeking a court order annulling a determination made by the Board of Cooperative Educational Services of Nassau County BOCES and Robert Dillon, its superintendent, [Respondents], that certain BOCES employees are not entitled to annual leave under the controlling Collective Bargaining Agreement [CBA], alleging among other things, that Respondents had "breached the contract" between the parties.

The Respondents filed its answer to the Association's petition/complaint but simultaneously asked the court to dismiss the petition/complaint "for failure to serve a notice of claim." Supreme Court granted the Respondents' motion, in effect, dismissed the Association's petition/complaint and the Association appealed the Supreme Court's ruling.

The Appellate Division introduced its ruling by explaining that although there were "certain limited exceptions," service of a notice of claim is a condition precedent to the commencement of any action and/or special proceeding against any BOCES or BOCES officer, citing Education Law §3813[1].

One such exception, said the court, is where the parties to the contract have indicated their intention to make Education Law §3813[1] inapplicable by affirmatively acting in a manner that demonstrates that the statutory requirement is inapplicable, or, at least, "they have set out detailed procedures which are plainly inconsistent with those contained in that section."

In the absence of any such action by the parties, opined the Appellate Division, "the provisions of the statute are to be deemed part and parcel of any contract entered into by [the parties]."

Noting that here the controlling CBA set forth a detailed, three-step grievance procedure but limits the definition of the term "grievance" to disputes concerning the interpretation and construction of the CBA, the Appellate Division concluded that it was not clear, "as it must be," that the parties intended to make Education Law §3813[1] inapplicable, "particularly in a case such as this one, which seeks not only equitable relief concerning the interpretation of the CBA but also to recover damages for breach of contract."

Under such circumstances, the Appellate Division said that it agreed with the Supreme Court's determination to grant Respondents' motion to dismiss the petition/complaint consistent with requirements of Education Law §3813[1].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07260.htm

Applying the Principle of "Obey Now, Grieve Later"

Under the “obey now, grieve later” principle, employees are required to follow their supervisor's orders when given, and, if they have an objection, contest the order subsequently through formal grievance procedures.

A New York City public employee was served with disciplinary charges alleging that he had disobeyed a lawful order to report for drug testing and failed to timely provide medical documentation justifying his inability to travel to the clinic for testing.

Here, however, the worker claimed one of the recognized exceptions to the principle, a situation where obeying the order would present an imminent and serious threat to the worker’s health or safety.*

OATH Administrative Law Judge Garcia found that the worker made out an "imminent and serious threat" to the worker’s health or safety defense. The worker presented documentation from a hospital emergency room showing that he had fainted on a subway platform on his way to the clinic and was told by a doctor not to travel for several days.

Judge Garcia recommended that the charges against the employee be dismissed.

Other decisions in which ignoring the principle "work now, grieve later" was a consideration include  Ferreri v. New York State Thruway Authority, 62 N.Y.2d 855 [refusal to obey an order claimed justified as consistent with the advice of union officials], Scazafavo v Erie County Water Authority, 30 AD3d 1034, [refusal to comply with an order to submit to drug testing because the employee did not believe that he was subject to random drug testing] and Tanvikr v NYC Health and Hospital Corporation, 112 AD 3d 436, [employee refused to obey orders to undertake training for a new position after being reassigned].

* Other exceptions include situations in which it is indisputably clear that the order is beyond the power of management.

The OATH decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1454.pdf

Emerging green synergy in the science/religion relationship: from conflict to potentially planet-saving cooperation

The science/religion relationship has proved to be of great interest, given the crushing economic burden of global climate change on the insurance industry, and the close association of science denial and climate change denial in some religious communities.  Below is the abstract of an article by Dr. Robert A. Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  

The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:

https://www.researchgate.net/publication/328051664_Emerging_Green_Synergy_in_the_ScienceReligion_Relationship_From_Conflict_to_Potentially_Planet-Saving_Cooperation

Abstract

Nature has inspired awe throughout history, stimulating scientific study often conflicting with theology.  Conflict is manifest as promotion of creationism and its euphemisms in school curricula, and in science denial, recently in the U.S. Government.  Unification, however, is an emerging reality for the science/ religion relationship, driven by convergent evolution of each toward saving our shared planet from ourselves.  No longer can religion deny science, nor science overlook the power of religious institutions toward achieving our common existential goal.  

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