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Assembly Member Kellner's Federal Lawsuit to Stop Construction of the East 91st Street Marine Transfer Station

Assembly Member Kellner's Federal Lawsuit to Stop Construction of the East 91st Street Marine Transfer Station

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Published by Micah Kellner
Assembly Member Kellner's Federal Lawsuit to Stop Construction of the East 91st Street Marine Transfer Station
Assembly Member Kellner's Federal Lawsuit to Stop Construction of the East 91st Street Marine Transfer Station

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Published by: Micah Kellner on Nov 20, 2012
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01/07/2014

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Jeffrey L. Braun
ObraunPkrarnerlevin.eorn)
Karen L. Mintzer
(km intzeLftkrameHevin. corn)
Kerri B. Folb
(kfolb rykramer1evin.com
)
KRAMER LEVIN NAFTALIS & FRANKEL LLP
1177 Avenue of the Aynerica
New York, NY 10036(212) 715-9100
Attorneys for Plointiffi
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKNEW YORK STATE ASSEMBLY MEMBER MICAH Z.KELLNER, NEW 'YORK CITY COUNCIL MEMBER JESSICA
LAPPIN, ASPHALT GREEN, INC., GRACIE POINf
COMMUNITY COUNCIL by its President, George. Morin, GEORGE
MORIN individually, THOMAS NEWMAN, NORMAN FLASTER,LEA FEASTER, ONE GRACIE SQUARE CORP. and ANDREW
LACHMAN,
Plaintiffs,
- against -
COMPLAINT
UNITED STATES ARMY CORPS OF ENGINEERS, PAUL E.
OWEN, Colonel, as Commander of the United States Army Corps of :Engineers, New York District, CITY OF NEW YORK, NEW YORK :
CITY DEPARTMENT OF SANITATION and NEW YORK CITYDEPARTMENT OF DESIGN AND CONSTRUCTION,
Defendants.
Plaintiffs, by their.attorneys Kramer Levin Naftalis & Frankel LLP, for theircomplaint, respectfully allege as follows:
A.
ntroduction
New York City's Department of Sanitation ("DSNY") wants to build anew, 10-story-tall, 70,000-square-foot solid waste marine transfer station for processing,
2 CV
8458
•••
E.L.:1:a..•••A •
 
containerizing and re-shipping up to 5,280 tons of garbage
pef
day on a platform over the East
River at East 91st Street. A worse and more ill-conceived location for a garbage transfer stationis difficult to imagine. The site is in the densely populated Gracie Point residential
neighborhood, and is surrounded by the heavily used Asphalt Green recreational complex and
two popular public parks — the East River Esplanade and Carl Schurz Park.2.
Although the transfer station itself will he separated from the surroundingresidential buildings, parks and recreational facilities by the F.D.R. Drive, there is no vehicular
access to the site from the Drive. Therefore, the only means of access to the new transfer station
for garbage trucks and other vehicles will he by a partially elevated ramp that will start at YorkAvenue, in the midst of the Gracie Point neighborhood, and then will bisect the Asphalt Green
site between the complex's outdoor playing fields, basketball courts and indoor gymnasiums to
the south and its aquatic sports center and an outdoor playground for preschool-aged children to
the north. This ramp is an integral part of the proposed project,
3.
The primary reason why DSNY insists on using this location is that theCity already oWns it. The site now contains the shell of a defunct transfer station that the City
built in the 1930's and deactivated in 1999. Like the proposed new transfer station,
the only
vehicular access to the defunct station was by a partially elevated ramp from York Avenue.
4.
When this former transfer station
was
built, however, the surroundingGracie Point neighborhood was primarily populated by busineSses engaged in lightmanufacturing activities, and the Asphalt Green site was a disjointed collection of properties
containing a municipal asphalt plant and DSNY truck garages. Starting in the 1960's, economicand demographic forces, supported and encouraged by the City's land use policies and zoning
changes, brought about substantial new construction and
thoroughly
transformed Gracie Point
2
 
from a manufacturing zone into a residential neighborhood. This transformation included thecreation of the Asphalt Green recreational complex in the 1980's on what had been the sites of
industrial uses,
5.
Incongruously, the new transfer station that DSNY wants to build at the
site will be about twice as large as the defunct one that is slated for demolition, In addition, it
will receive commercial waste from private carters as well as DSNY-managed residential waste,unlike the former transfer station, which only received residential waste.
6.
This new transfer station would require DSNY to perform dredging andsubstantial other construction work in the East River, including the discharge of dredged material
and fill material. The river constitutes waters of the United States. Theretbre, the Clean Water
Act, 33 U.S.C. § 1251,
el seq.,
prohibits DSNY from constructing the proposed transfer stationunless it first obtains a permit under § 404 of the Act (33 U.S.C. § 1344) from the United States
Army Corps of Engineers (the "Corps").
7.
On July 20, 2012, the Corps granted DSNY's application for a § 404permit and issued the necessary permit. The Corps' issuance of this § 404 permit was improper
and unlawful,
8.
The § 404 permit is inconsistent in several material respects with therequirements of the Clean Water Act and mandatory guidelines and regulations promulgated
thereunder. The Corps' conclusion that the permit is consistent with the Act's requirement that§ 404 permits be issued only if they are in the public interest is irrational in view ofoverwhelming evidence to the contrary. Furthermore, the Corps failed to fulfill its obligation to
properly consider reasonable alternatives to the permitted activity; the Corps acted without asufficient basis for concluding that the project would not degrade the waters of the United States;
3

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