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2012-11-20 Federal Lawsuit Marine Transfer Station Lawsuit…

2012-11-20 Federal Lawsuit Marine Transfer Station Lawsuit…

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Published by Micah Kellner

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Published by: Micah Kellner on Nov 20, 2012
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Assembly Member CouncilmemberMicah Z. Kellner Jessica Lappin
Joint Press Release
Assembly Member Kellner, Councilmember Lappin File Federal Lawsuit toBlock Construction Permit for Proposed East 91
StreetMarine Transfer Station
US Army Corps of Engineers Violated Federal Environmental Statutes in Issuing Its Final Permit Asphalt Green Files Suit to Protect NYC’s Children - Construction of New Garbage DumpThreatens Health and Safety of Over 31,000 Children
New York, NY – 
Assembly Member Micah Z. Kellner (D-Upper East Side /Yorkville / Roosevelt Island)
City Councilmember Jessica Lappin (D-Upper EastSide)
along with community leaders – filed a federal lawsuit against the U.S. Army Corps ofEngineers to stop the City from moving forward with construction of the East 91
StreetMarine Transfer Station (MTS).Kellner’s and Lappin’s lawsuit – filed in the United States District Court’s SouthernDistrict – further alleges that the U.S. Army Corps of Engineers violated the requirements ofthe Federal Clean Water Act in granting the New York City Department of Sanitation the finalpermit necessary to begin construction on the East 91
Street Marine Transfer Station.Building a new transfer station would require the Department of Sanitation to performdredging and other construction work in the East River, including the discharge of dredgedmaterial into the East River. Therefore, the 1972 Clean Water Act (section 404) requires apermit before construction may proceed on the site. On July 20, 2012, the Army Corps ofEngineers granted a permit for the Department of Sanitation to begin construction.Kellner and Lappin’s lawsuit contends that the July permit was granted improperly andis inconsistent with the requirements and guidelines of the Clean Water Act. Among them:
The Army Corps needed to consider a reasonable alternative to theconstruction it approved that would have less of an adverse impact on theaquatic ecosystem. It did not consider any reasonable alternative sites.
 An adequate and thorough environmental review needed to take place.However, as Kellner and Lappin’s lawsuit contends, the environmental reviewwas limited in scope and only focused on the initial construction of a Marine
Transfer Station at the site, not on the environmental impact of operating such asite for many years into the future
 Even without such a sufficient environmental review, the Army Corps concludedthat the project would not degrade the quality of the waters around the project.Significant degradation would include adverse effects on fish, life stages of fish,physical and chemical characteristics of the aquatic ecosystem such as thesubstrate, and threatened or endangered species. The Army Corps’determination that there would be no substantial adverse impacts did not takeinto account the unique habitat that exists at the East 91
Street site as a resultof the site’s rocky substrate and irregular bottom topography, which is attractiveto winter flounder. The Army Corps did not acknowledge or consider that thedredging needed for the East 91
Street site, and the dredging proposed at thetwo mitigation sites, would destroy this topography and adversely affect thepopulation of winter flounder and other species that now thrive there.
 The Clean Water Act required the Department of Sanitation to create anacceptable plan to avoid or minimize adverse impacts on waters. Kellner andLappin’s lawsuit contends that the plan submitted by the Department ofSanitation and accepted by the Army Corps fails to comply with this importantrequirement in several material respects. Among them are as follows:1. The mitigation plan failed to acknowledge, and failed to providemitigation for, important impacts on fish and fish habitat of construction andoperation of the proposed East 91
Street transfer station;2. The National Marine Fisheries Service’s Habitat Conservation Divisioncriticized the use of the Bush Terminal in Brooklyn as a mitigation sitebecause of its history of contamination. The Department of Sanitation’s onlyresponse to this concern was the assertion that contaminated soils would beisolated by a fabric barrier, the effectiveness of which is unsubstantiated;3. The mere creation of new open water in an amount equal to the amountof open water eliminated by the East 91
Street garbage station will notmitigate the loss of population and loss of unique habitat of fish and wildlife;4. The mitigation plan does not contain or account for any requiredstandards of performance or monitoring.Last month, Superstorm Sandy showed the New York area what the new reality offrequent extreme weather looks like. The proposed East 91
Street Marine Transfer Stationwould be located in flood zone “A” and would face the highest risk of flooding from anyhurricane that makes landfall in New York City. When Superstorm Sandy hit on October 29
,the area around the proposed Marine Transfer Station flooded, doing damage to the AsphaltGreen facilities adjacent to the site with waters reaching as far as First Avenue.In light of these developments, Councilmember Lappin, Assembly Member Kellner andthe other plaintiffs are suing to get an updated Environmental Impact Statement (EIS) fromboth New York City and the U.S. Army Corps of Engineers in order to reassess whether apermit for building a Marine Transfer Station at East 91
Street is appropriate.
By failing to require the City to take appropriate steps to mitigate unavoidable adverseimpacts, and by accepting an inadequate mitigation plan, the Army Corps of Engineers hasacted arbitrarily and capriciously and in violation of the Clean Water Act.Additionally, The Army Corps is prohibited from issuing a permit if it “determines that itwould be contrary to the public interest.” In making this determination, the Army Corps isrequired to consider, among other things, conservation, economics, aesthetics, generalenvironmental concerns, wetlands, historic properties, fish and wildlife, flood hazards, landuse, recreation, safety, and the “needs and welfare of the people.”Kellner and Lappin further assert that the Army Corps disregard the Clean Water Act’simplementing regulations by not fully considering all of the effects of construction andoperation of the new Marine Transfer Station.“The U.S. Army Corps of Engineers violated the Clean Water Act when the permitwas approved,” said Assembly Member Kellner. “Our community’s concerns have neverbeen considered in a fair and impartial manner. A garbage dump does not belong in themiddle of this residential community. Accordingly, we had no choice but to go to the court – again.”“In light of the devastation of Hurricane Sandy,” Assembly Member Kellner added,“now is not the time for the Army Corps of Engineers to be cutting corners in its permittingprocess, given that the Marine Transfer Station site is located in the middle of Flood Zone A.”
“This federal lawsuit, which has been in the works for months, is our next step in thefight against the 91st St MTS,” said Councilmember Jessica Lappin. “In granting the permit,the Army Corps failed to consider reasonable alternatives, failed to provide a propermitigation plan and failed to perform an adequate environmental review. These are just threemore reasons why a marine transfer station should not be built at this location.”“In the last few weeks, New Yorkers have had the unfortunate experience of livingthrough the terrible destruction of a hurricane,” said U.S. Representative Carolyn Maloney.“Just imagine what that would have been like for residents of Yorkville if, in addition toeverything else, their streets and buildings were flooded with the garbage from the marinetransfer station. It makes no sense to build an enormous facility for processing garbage inthe heart of a Zone A hurricane flood zone. I am proud to be joining in this lawsuit; I think it isimperative to protect our communities from poor planning.”
“The City's bizarre insistence on opening a Marine Transfer Station here is a mistakethat will create a dizzying array of health and safety problems -- from the adjacent waterwayand ecosystems, to the playgrounds and surrounding residential neighborhoods," said NewYork State Senator Liz Krueger (D-Manhattan). "I applaud Assemblymember Kellner's andCouncilmember Lappin's continued efforts to stop this bad idea from becoming a reality."“I support Assembly Member Kellner and Councilmember Lappin in their lawsuit,” saidAssembly Member Dan Quart. “The City of New York has a responsibility to the community toensure that this proposed transfer station be thoroughly studied before any decisions aremade. I applaud Assembly Member Kellner and Councilmember Lappin for protecting ourcommunity by insisting on a comprehensive environmental study before any decisions aremade.”

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