Assembly Member Micah Z.

Kellner

Councilmember Jessica Lappin

Joint Press Release

November 20, 2012 FOR IMMEDIATE RELEASE

Assembly Member Kellner, Councilmember Lappin File Federal Lawsuit to Block Construction Permit for Proposed East 91st Street Marine Transfer Station
US Army Corps of Engineers Violated Federal Environmental Statutes in Issuing Its Final Permit Asphalt Green Files Suit to Protect NYCs Children - Construction of New Garbage Dump Threatens Health and Safety of Over 31,000 Children

New York, NY Assembly Member Micah Z. Kellner (D-Upper East Side / Yorkville / Roosevelt Island) and City Councilmember Jessica Lappin (D-Upper East Side) along with community leaders filed a federal lawsuit against the U.S. Army Corps of Engineers to stop the City from moving forward with construction of the East 91st Street Marine Transfer Station (MTS). Kellners and Lappins lawsuit filed in the United States District Courts Southern District further alleges that the U.S. Army Corps of Engineers violated the requirements of the Federal Clean Water Act in granting the New York City Department of Sanitation the final permit necessary to begin construction on the East 91st Street Marine Transfer Station. Building a new transfer station would require the Department of Sanitation to perform dredging and other construction work in the East River, including the discharge of dredged material into the East River. Therefore, the 1972 Clean Water Act (section 404) requires a permit before construction may proceed on the site. On July 20, 2012, the Army Corps of Engineers granted a permit for the Department of Sanitation to begin construction. Kellner and Lappins lawsuit contends that the July permit was granted improperly and is inconsistent with the requirements and guidelines of the Clean Water Act. Among them: The Army Corps needed to consider a reasonable alternative to the construction it approved that would have less of an adverse impact on the aquatic ecosystem. It did not consider any reasonable alternative sites. An adequate and thorough environmental review needed to take place. However, as Kellner and Lappins lawsuit contends, the environmental review was limited in scope and only focused on the initial construction of a Marine 1

Transfer Station at the site, not on the environmental impact of operating such a site for many years into the future Even without such a sufficient environmental review, the Army Corps concluded that 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 the substrate, and threatened or endangered species. The Army Corps determination that there would be no substantial adverse impacts did not take into account the unique habitat that exists at the East 91st Street site as a result of the sites rocky substrate and irregular bottom topography, which is attractive to winter flounder. The Army Corps did not acknowledge or consider that the dredging needed for the East 91st Street site, and the dredging proposed at the two mitigation sites, would destroy this topography and adversely affect the population of winter flounder and other species that now thrive there. The Clean Water Act required the Department of Sanitation to create an acceptable plan to avoid or minimize adverse impacts on waters. Kellner and Lappins lawsuit contends that the plan submitted by the Department of Sanitation and accepted by the Army Corps fails to comply with this important requirement in several material respects. Among them are as follows: 1. The mitigation plan failed to acknowledge, and failed to provide mitigation for, important impacts on fish and fish habitat of construction and operation of the proposed East 91st Street transfer station; 2. The National Marine Fisheries Services Habitat Conservation Division criticized the use of the Bush Terminal in Brooklyn as a mitigation site because of its history of contamination. The Department of Sanitations only response to this concern was the assertion that contaminated soils would be isolated by a fabric barrier, the effectiveness of which is unsubstantiated; 3. The mere creation of new open water in an amount equal to the amount of open water eliminated by the East 91st Street garbage station will not mitigate the loss of population and loss of unique habitat of fish and wildlife; 4. The mitigation plan does not contain or account for any required standards of performance or monitoring. Last month, Superstorm Sandy showed the New York area what the new reality of frequent extreme weather looks like. The proposed East 91st Street Marine Transfer Station would be located in flood zone A and would face the highest risk of flooding from any hurricane that makes landfall in New York City. When Superstorm Sandy hit on October 29th, the area around the proposed Marine Transfer Station flooded, doing damage to the Asphalt Green facilities adjacent to the site with waters reaching as far as First Avenue. In light of these developments, Councilmember Lappin, Assembly Member Kellner and the other plaintiffs are suing to get an updated Environmental Impact Statement (EIS) from both New York City and the U.S. Army Corps of Engineers in order to reassess whether a permit for building a Marine Transfer Station at East 91st Street is appropriate.

By failing to require the City to take appropriate steps to mitigate unavoidable adverse impacts, and by accepting an inadequate mitigation plan, the Army Corps of Engineers has acted 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 it would be contrary to the public interest. In making this determination, the Army Corps is required to consider, among other things, conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife, flood hazards, land use, recreation, safety, and the needs and welfare of the people. Kellner and Lappin further assert that the Army Corps disregard the Clean Water Acts implementing regulations by not fully considering all of the effects of construction and operation of the new Marine Transfer Station. The U.S. Army Corps of Engineers violated the Clean Water Act when the permit was approved, said Assembly Member Kellner. Our communitys concerns have never been considered in a fair and impartial manner. A garbage dump does not belong in the middle 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 permitting process, 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 the fight 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 proper mitigation plan and failed to perform an adequate environmental review. These are just three more 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 living through 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 to everything else, their streets and buildings were flooded with the garbage from the marine transfer station. It makes no sense to build an enormous facility for processing garbage in the heart of a Zone A hurricane flood zone. I am proud to be joining in this lawsuit; I think it is imperative to protect our communities from poor planning. The City's bizarre insistence on opening a Marine Transfer Station here is a mistake that will create a dizzying array of health and safety problems -- from the adjacent waterway and ecosystems, to the playgrounds and surrounding residential neighborhoods," said New York State Senator Liz Krueger (D-Manhattan). "I applaud Assemblymember Kellner's and Councilmember Lappin's continued efforts to stop this bad idea from becoming a reality." I support Assembly Member Kellner and Councilmember Lappin in their lawsuit, said Assembly Member Dan Quart. The City of New York has a responsibility to the community to ensure that this proposed transfer station be thoroughly studied before any decisions are made. I applaud Assembly Member Kellner and Councilmember Lappin for protecting our community by insisting on a comprehensive environmental study before any decisions are made.

"A garbage dump should never be sited in a residential neighborhood, and Hurricane Sandy illustrates why it would be particularly perilous to put one on a flood-prone bank of the East River," said Council Member Daniel R. Garodnick. "The City has been rushing to complete this transfer station, and if it slowed down and did more due diligence, it would be clear that this site makes even less sense than we initially thought." The construction and operation of a garbage dump next to Asphalt Green threatens the health and safety of the 31,000 children from around the city of New York who use this facility to play sports, learn to swim and participate in other healthy activities. And in light of the flooding Asphalt Green sustained during Hurricane Sandy, it is simply irresponsible to build a dump in a flood zone A, said Carol Tweedy, Executive Director, Asphalt Green. As a non-profit organization dedicated to health and well-being, Asphalt Green is filing this lawsuit to protect the youth of our community. The many public schools we serve every day, including those in some of the most underserved communities, and the thousands of New Yorkers who come to us seeking to live a healthier, more fit life deserve better. We and this community have been fighting this terrible idea for almost a decade, and now we have no recourse left but to take action in the courts to protect our children and this incredible facility. Assembly Member Kellner and Council Member Lappin serve as the lead plaintiffs in the suit. The other plaintiffs are: Asphalt Green, Inc.; The Gracie Point Community Council (brought by its president, George Morin); George Morin (individually); Thomas Newman; Norman Flaster; Lea Flaster; One Gracie Square Corp; and Andrew Lachman. The defendants named in the lawsuit are: the United States Army Corps of Engineers; Colonel Paul E. Owen, Commander of the Army Corps of Engineers, New York District; the City of New York; and the New York City Department of Sanitation. Last week, City Comptroller John Lius office rejected the initial city contract for technical reasons. The Comptrollers office is now waiting on additional documentation to be resubmitted by the Department of Sanitation. The Marine Transfer Station will be ten stories high and located right next to Asphalt Greens facilities, used by 56,151 people every year. Additionally, the site is located within a block of two New York City Public Housing complexes. ***