SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - -
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- - - - - - - X In the Matter of the Application of ASSEMBLY MEMBER
MICAH Z. KELLNER, THE GRACIE POINT COMMUNITY COUNCIL, by its
President, GEORGE MORIN, GEORGE MORIN, individually, RESIDENTS FOR
SANE TRASH SOLUTIONS, INC., JED H. GARFIELD, 1725 YORK OWNERS
CORP., GRACIE GARDENS OWNERS CORP., GREGORY COSTELLO, SUZANNE
SANDERS, [others to be added]., Petitioners-Plaintiffs, For a
Judgement Pursuant to CPLR Article 78 and CPLR Sections 3001 and
6301 -againstIndex No. ______________
VERIFIED PETITION AND COMPLAINT
THE DEPARTMENT OF SANITATION OF THE CITY OF NEW YORK, THE CITY
OF NEW YORK, MICHAEL BLOOMBERG, as Mayor of the City of New York,
THE NEW YORK CITY COUNCIL and the NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, Respondents-Defendants
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Petitioners-Plaintiffs, by their attorney, for their Verified
Petition and Complaint herein, allege on information and belief as
follows: NATURE OF CASE 1. This is a proceeding for a judgment
pursuant to CPLR Article 78 of the New York
Civil Practice Law and Rules (CPLR), as well as an action for a
declaratory judgment pursuant to CPLR 3001 and for injunctive
relief pursuant to CPLR 6301, against the Department of Sanitation
of the City of New York (DNSY), the other named City respondents
and the New
1
York State Department of Environmental Conservation (DEC)
arising of the failures of DSNY and DEC to comply with the State
Environmental Quality Review Act [Environmental Conservation Law,
Article 8] (SEQRA) in making/ approving modifications to the City
of New Yorks Solid Waste Management Plan. These modifications
included deferring, if not terminating, the development of marine
transfer facilities at West 59th Street and the Gansevoort
Peninsula, thereby forcing commercial waste to be reallocated
entirely to the proposed and imminent East 91st Street Marine
Transfer Station (the 91st Street MTS), more than tripling the
adverse impacts on the adjoining residential neighborhoods, as
compared to those analyzed originally by DSNY or at any time since
then. Alternatively, the petitioners assert that DSNY has failed to
submit, and DEC has failed to review, modifications of the 2006
SWMP that are required under Section 3.7 of the SWMP and Part 360
of DECs rules and regulations. 2. The Petitioners seek judgment and
an order pursuant to CPLR Article 78 and
CPLR Sections 3001 and 6301 for, inter alia, the following
relief: a. Declaring that DSNY has failed to comply with SEQRA in
modifying the SWMP (either explicitly or implicitly) without
preparing a supplemental environmental impact statement addressing
the impact of the modifications and without issuing a negative
declaration; and in any event, declaring that DSNY has failed to
adequately identify, much less take a hard look at, the adverse
environmental impacts, above and beyond those identified in the
original EIS and subsequent documentation, that will be imposed on
the petitioners-plaintiffs and other residents surrounding the 91st
Street MTS as a result of such modifications; b. Declaring that DEC
failed to comply with SEQRA in approving modifications to the SWMP
without having available to it a supplemental environmental impact
statement or
2
issuing a negative declaration; and in any case, declaring that
DEC has failed to adequately consider the impacts, above and beyond
those identified in the original EIS and subsequent documentation,
that will be imposed on the petitioners and other residents
surrounding the 91st Street MTS as a result of the approval of such
modifications; c. Alternatively, declaring that DSNY has failed to
comply with Section 3.7 of the SWMP and Part 360 of DECs rules and
regulations, in that it has failed to submit modifications to the
2006 SWMP required in light of delays and other changes in the
implementation schedule set out in the SWMP, and requiring DSNY to
comply with the Section 3.7 and Part 360 and in connection
therewith, to meet the requirements of SEQRA; d. Alternatively,
declaring that DEC failed to comply with its own regulations in
accepting a Compliance Report from DSNY in lieu of the plan
modifications required under Part 360 of its own regulations; e.
Enjoining DSNY and the other City respondents-defendants and their
agents and assigns from proceeding with the contracting for or
construction of the 91st Street MTS until such time as they have
complied with SEQRA and the requirements of Section 3.7 of the SWMP
and Part 360 of DECs rules and regulations; f. Invalidating the
SWMP insofar as it authorizes construction of the 91st Street MTS;
g. Granting the petitioners-plaintiffs their costs and expenses in
this proceeding, including reasonable attorneys fees; h. Granting
the petitioners-plaintiffs such further relief as this Court may
deem just and proper.
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PETITIONERS-PLAINTIFFS 3. Petitioner-Plaintiff ASSEMBLY MEMBER
MICAH Z. KELLNER is the New
York State Assembly Member for New York States 65th Assembly
District, which lies east of Third Avenue in Manhattan and extends
from 94th Street south to 59th Street. The 65th District includes
the site of the 91st Street MTS and, of equal importance, the
adjacent housing, parks and other recreational facilities. Elected
to the Assembly in 2007, Mr. Kellner has been a staunch and
outspoken opponent of the 91st Street MTS during that period and
before. He lives at 84th Street and York Avenue, only two short
blocks from the route that sanitation trucks and commercial carters
will take to go to and from the MTS, and he regularly spends time
at Asphalt Green meeting and speaking with his constituents and
enjoying its recreational opportunities. Assembly Kellner will be
directly and adversely affected by the illegal actions herein
complained of in a manner different from that of the general
public, in that, among other things, he will be exposed to the
noise and pollution of the increased truck traffic that will move
to and from the 91st Street MTS, including the increased number of
commercial carters which has not been previously evaluated or
disclosed, and also because his use and enjoyment of Asphalt Green
will be sharply curtailed by the new enlarged ramp to the MTS and
the coming and going of trucks at Asphalt Green. 4.
Petitioner-Plaintiff GRACIE POIINT CIVIC COUNCIL (GPCC), which
sues
by its President, GEORGE MORIN, is an unincorporated association
of individuals, businesses and cooperative corporations, whose
several thousand members/supporters live, raise their families,
work, own businesses and run institutions in the Gracie Point
community in the vicinity of the proposed 91st Street MTS. GPCC's
mission is to protect the environment of the Gracie
4
Point neighborhood and to preserve its peace, quiet and
character as a tranquil urban residential community. Many of GPCCs
members live within 500 feet of the MTS site or have direct views
to it and many regularly use the three New York City parks that are
in the immediate vicinity of the transfer station site: Asphalt
Green, through which the only access ramp to the transfer station
will run, Carl Shurz Park and the East River Esplanade, also known
as the Bobby Wagner Walk. These members are united by a common
concern that the proposed MTS would threaten the health and safety
of those who live in its surrounding neighborhood and significantly
impair their recreational and leisure use of the aforesaid parks.
GPCC and its members will be directly and adversely affected by the
illegal actions herein complained of in a manner different from
that of the general public, in that, among other things, (i) they
will be exposed to the noise and pollution of the increased truck
traffic that will move to and from the 91st Street MTS, including
the increased number of commercial carters which has not been
previously evaluated or disclosed; (ii) their use and enjoyment of
Asphalt Green and the East River Esplanade will be sharply
curtailed and otherwise adversely affected by the new enlarged ramp
to the MTS and the coming and going of trucks at Asphalt Green
above the Esplanade, and (iii) they will suffer adverse visual and
noise impacts by reason of the foregoing. Among other members of
GPCC who are impacted by the illegal actions complained of inn a
substantive and qualitative way different from any impact on the
general public are petitioners-plaintiffs George Morin, Kathie
Morin and ____________. 5. GPCC has standing to sue in that one or
more of its members has standing to sue,
the interests it advances here are sufficiently germane to GPCCs
purposes to make GPCC an appropriate representative of those
interests; and the participation of each of the individual
5
GPCC members is not required to assert this claim or to afford
complete relief. 6. Petitioner-Plaintiff RESIDENTS FOR SANE TRASH
SOLUTIONS, INC.
(RFSTS) is a New York not-for-profit corporation with tax exempt
status under Section 501(c)(_) of the Internal Revenue Code. Its
mission and purposes are to (1) oppose the construction and
operation of the 91st MTS, (2) seek and advocate to implement
rational alternative solutions for dealing with and disposing of
the waste destined for that MTS, and (3) work to protect and
enhance the increasingly residential character and composition of
Manhattans Upper East Side in the Gracie Point area. RFSTS, which
was incorporated in 2011, has more than ___ contributing members,
many of whom live within two blocks of the site of the 91st Street
or have direct views to it, others of whom live along the routes
that sanitation trucks and commercial carters will take to the MTS
the site (including the increased number of commercial carters
which has not been previously evaluated or disclosed), and many of
whom regularly use the City Parks at Asphalt Green, Carl Shurz Park
and the East River Esplanade. Within the last year, RFSTS has
brought together large numbers of residents of the Gracie Point
area to oppose the location of an MTS adjacent to this residential
area and has sponsored fora that have brought out as many as 500
people. RFSTS and its members will be directly and adversely
affected by the illegal actions herein complained of in a manner
different from that of the general public, in that, among other
things, (i) they will be exposed to the noise and pollution of the
increased truck traffic that will move to and from the 91st Street
MTS, including the increased number of commercial carters which has
not been previously evaluated or disclosed; (ii) their use and
enjoyment of Asphalt Green and the East River Esplanade will be
sharply curtailed and otherwise adversely affected by the new
enlarged ramp to the MTS and the coming
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and going of trucks at Asphalt Green above the Esplanade, and
(iii) they will suffer adverse visual and noise impacts by reason
of the foregoing. Among other members of GPCC who are impacted by
the illegal actions complained of inn a substantive and qualitative
way different from any impact on the general public are
Petitioners-Plaintiffs _____________. 7. RFSTS has standing to sue
in that one or more of its members has standing to sue,
the interests it advances here are sufficiently germane to
RFSTSs purposes to make RFSTS an appropriate representative of
those interests; and the participation of each of the individual
RFSTS members is not required to assert this claim or to afford
complete relief. 8. Petitioner GEORGE MORIN is a member of the GPCC
and its President. He and
his wife, KATHIE MORIN, who is also a petitioner-plaintiff and
resides at 1725 York Ave in Manhattan, at the northwest corner of
90th Street and York Avenue. This is one block (200 feet) from the
ramp of the 91st Street MTS, which will provide the only truck
access to the MTS. They are also on the route that sanitation
trucks and commercial carters with take to and from the MTS. In
addition, Ms. Morin is a member of, and daily user of Asphalt
Green, which will be bisected by the ramp. Pollution and noise from
the 24 hour per day operation and the increased truck traffic
associated with trucks dumping at the garbage station (including
the increased number of commercial carters which has not been
previously evaluated or disclosed) will threaten the Morins health
and have a substantial negative impact on their enjoyment of their
home and the nearby parks that they regularly frequent. Mr.Morin
and Ms. Morin will be directly and adversely affected by the
illegal actions herein complained of in a manner different from
that of the general public, in that, among other things, they will
be exposed to the noise and pollution of the increased truck
traffic that will move to and from the 91st Street MTS,
including
7
the increased number of commercial carters which has not been
previously evaluated or disclosed, and also because Ms. Morins
enjoyment of Asphalt Green will be sharply curtailed by the new
enlarged ramp to the MTS and the coming and going of trucks at
Asphalt Green. 9. Petitioner JED H. GARFIELD is a member and
President of RFSTS. He resides
with his wife and two children at ___________________ in
Manhattan, approximately ___ blocks from the site of the proposed
91st Street MTS, and within __ blocks of the route that sanitation
trucks and commercial carters will take to and from the MTS.
[Describe the home and the expected impact on its value]. [Describe
any use of Asphalt Green and/or the East River Esplanade]. Mr.
Garfield is also Managing Partner of Leslie J. Garfield & Co.,
one of the East and West Sides preeminent real estate brokerage
firm, and in that capacity he is very familiar with real estate
value and trends in the Gracie Point area and more broadly in
Manhattan. Mr. Garfield and his family will be directly and
adversely affected by the illegal actions herein complained of in a
manner different from that of the general public, in that, among
other things, he will be exposed to the noise and pollution of the
increased truck traffic that will move to and from the 91st Street
MTS, including the increased number of commercial carters which has
not been previously evaluated or disclosed, and also because the
value of his home will be reduced significantly by the proximity of
the MTS and the truck traffic it will generate. 10. 11. 12. 13. 14.
Petitioner-plaintiff _______________________ Petitioner-plaintiff
_______________________ Petitioner-plaintiff
________________________ Petitioner-plaintiff
________________________ Petitioner-plaintiff
________________________
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RESPONDENTS-DEFENDANTS 15. Respondent-Defendant DEPARTMENT OF
SANITATION OF THE CITY OF
NEW YORK (DSNY) is a department within the government of the
City, having the responsibility for, among other things, collecting
and disposing of solid wastes for City residents. As currently
planned, DSNY would undertake construction of the 91st Street MTS
and would manage City operations at the MTS. 16.
Respondent-Defendant CITY OF NEW YORK (the City) is a municipal
corporation organized under the New York General City Law. The
City is also the fee owner of the site of the 91st Street MTS on
the East River. 17. Respondent-Defendant MICHAEL BLOOMERG is the
Mayor of the City and as
such, proposed and has pursued implementation of the Solid Waste
Management Plan that includes the 91st Street MTS. Mayor Bloomberg,
along with DSNY, is also responsible for the Citys conformance to
the requirements of the Solid Waste Management Plan and applicable
State law governing modifications of the Plan. 18.
Respondent-Defendant CITY COUNCIL OF THE CITY OF NEW YORK is
the
legislative arm of City government. As such, it approved the
Solid Waste Management Plan that underlies this proceeding and is
responsible for approving or otherwise acting on required
modifications of the Plan. 19. Respondent-Defendant NEW YORK STATE
DEPARTMENT OF ENVIRON-
MENTAL CONSERVATION (DEC) is an administrative agency of the
State of New York charged by statute with the responsibility, by
and through its Commissioner, to carry out the environmental policy
of the State, including, pursuant to Environmental Conservation
Law
9
Article 27, the regulation of solid waste management and
disposal by municipalities of the State. In the context of this
proceeding, DEC approved the Solid Waste Management Plan that
includes the East 91st Street MTS, and it is responsible for
reviewing and make decisions on modifications to the Plan required
by law. FACTUAL BACKGROUND 20. Article 27 of the New York State
Environmental Conservation Law requires
municipalities, including the City, to handle their waste
pursuant to a solid waste management plan, or SWMP, that must be
approved by DEC. 21. Section 16-140(a) of the Citys Administrative
Code requires the City Council to
approve a SWMP before it is submitted to DEC for approval. 22.
Prior to 2005, the City managed waste pursuant to a SWMP that was
adopted
originally in 1992 and amended in 2000. 23. According to DSNY,
as of 2004, the City generated approximately 54,000 tons of
waste per day. Of this, the residential portion approximately
16,500 tons per day of residential and recyclable waste was handled
by DSNY. The remainder approximately 37,500 tons per day was
commercially generated and handled (as it is still handled) by
private carters. The residential waste stream at the time was
disposed of in one of three ways: (i) it was transported directly
via DSNY collection vehicles to out-of-City transfer stations or
disposal facilities; (ii) it was transported via DSNY collection
vehicles to in-City, private waste transfer stations licensed by
DSNY, and then transferred out of the City by private long haul
trucks; or (iii) a portion (about 1,800 tons per day) was
transported via DSNY collection vehicles to the Harlem River Yard
located in the Bronx directly across the Harlem River from
Manhattan, and subsequently
10
transported out of the City by rail. These methods continue to
be used at this time. 24. In October 2004, the City and DSNY
unveiled a proposed new SWMP for the
management of the City's solid waste for the next 20 years. The
central elements of this new SWMP were (a) the conversion of
existing marine transfer stations in the outlying boroughs to
larger structures capable of containerizing wastes and shipping
them out by barge; (b) the development of similar facility at East
91st Street, where an inactive and much smaller MTS had operated
until 1999; (c) the possible conversion of an existing MTS at West
59th Street, then used for recycling paper, into a facility to
containerize commercial putrescible waste; and (d) the reactivation
and reconstruction of anl MTS on the Gansevoort Peninsula on the
Hudson River to handle all of Manhattans export of recyclables. The
initial focus on the new SWMP was on the handling of residential
waste, but the Plan also contemplated that the City would, in time,
also manage and/or control the commercial waste stream, using the
transfer stations for residential waste, including the 91st Street
MTS, to handle and export that commercial waste stream as well.
This was a critical element of the new SWMP because of complaints
that the lower-income communities in the outer boroughs were being
burdened with a disproportionate amount of Citygenerated waste,
particularly that which was generated in Manhattan; but to the
extent this was true, it related only to commercial waste, since
all of Manhattans residential waste was exported to New Jersey to
fuel the Essex County Resource Recovery facility. 25. The newly
proposed SWMP was accompanied by a draft environmental impact
statement under the State Environmental Quality Review Act [ECL
Article 8](SEQRA). This draft, later finalized as a final
environmental impact statement (the SWMP EIS), purported to analyze
the environmental impacts of the actions contemplated by the SWMP,
including the
11
impacts of rebuilding and enlarging the inactive 91st Street
MTS. This included an analysis of using that MTS to handle the
export of commercial waste; for this purpose, 71 trips a day by
commercial carters were assigned to the 91st Street facility. For
these trucks, as well as a large number of City sanitation trucks,
the only access the MTS will be via a ramp that enters and exits
only 100 feet from the nearest residence, requires truck routing
along residential streets and cuts the Asphalt Green sports center
in half. 26. Notwithstanding these realities and that the fact the
91st Street MTS was the only
marine transfer facility to be located adjacent to a dense
residential community (the 2000 census showed a residential
population of 13,500 living within one quarter of a mile of the
91st Street site, whereas for the other proposed MTSs, the maximum
residential population was 4,500 within one mile of that site) ,
the SWMP EIS concluded that there would be no unacceptable adverse
impacts from either its construction or its operations.. 27. The
new SWMP hereinafter referred to as the 2006 SWMP was approved
by
the City Council in July 2006. Among other things, it included
an implementation schedule or milestones for the key elements of
the Plan. Under this schedule, the four large MTSs, including East
91st Street, were to be in operation by June 30, 2011. A final
decision on converting the West 59th Street MTS to a facility for
the containerization and export of commercial waste was to be made
by June 30, 2010; and the Gansevoort Recycling Marine Transfer
Station was to be underway by 2013. Copies of relevant parts of the
implementation schedule are annexed hereto as Exhibit A. 28.
Recognizing some of the uncertainties inherent in the timetables,
Section 3.7 of the
SWMP provided specifically as follows:
12
No later than 18 months from the date of the adoption of the
SWMP by the Council, the City shall report to the Council on the
progress of the RFP process and any other approvals needed to use
the 4 MTSs. If any of the agreements for the 4 MTSs are not
finalized within four years of the adoption of the SWMP by the
Council, then the City will report to the Council on the status of
these facilities and will make recommendations as appropriate to
address the handling of the City's residential waste through the
submission to the Council of a proposed modification to the SWMP.
The proposed modification may include, without limitation, a new
timeline for finalizing agreements for any of the 4 MTSs or a new
proposal for handling the City's residential waste, including
alternative MTS sites. 29. Following its approval by the City
Council, the 2006 SWMP was submitted to
DEC for its review and approval. This approval was given by
letter dated October 27, 2006. In October 2009, DEC also granted a
permit for the 91st Street MTS. The Citys approval of the SWMP was
unsuccessfully challenged in court by some of the petitioners in
this proceeding. DECs permit approval was also subject to judicial
challenge, but has not been successful to date. A motion for leave
to appeal to the Court of appeals remains sub judice. 30. The 91st
Street MTS also requires a permit from the U.S. Army Corps of
Engineers. DSNY has applied to the Corps for that permit, but
the Corps has not yet issued a decision to grant or deny it. 31.
Since the 2006 SWMP was approved, the implementation schedule
(milestones)
that it contained and that was approved by DEC has slipped in
significant ways. To begin with, none of the four principal MTSs,
including the 91st Street MTS, which were supposed to be completed
by June 30, 2011, are yet in operation, and only two of them are
under construction. The delays for these facilities vary from two
to five years. 32. At the same time, the initiative identified in
the 2006 SWMP to convert the
existing West 59th Street MTS to a facility with the capacity to
export commercial putrescible
13
waste has all but been abandoned. More than five years after the
2006 SWMP was approved, that MTS continues to be used solely for
the export of recycled paper; and to the extent the DSNY and the
City have considered using it all, it has been solely for
construction debris and other nonputrescible waste. Moreover, DSNY
has concluded the West 59th Street MTS must be limited to handling
recyclables until the proposed Gansevoort MTS is completed.
However, DSNY has acknowledged that the Gansevoort MTS cannot even
be started before 2014, since that is the earliest date a new
garage will be ready to accept the trucks currently parked at
Gansevoort; and based on recent experience with a new DSNY garage
at 59th Street, the 2014 date is likely to be pushed back several
years. 33. Furthermore, the Citys legal right to use Gansevoort
(which is situated in Hudson
River Park) for an MTS is contingent on a City-State agreement
committing the City to contribute an unspecified amount of funding
to the Park,, above and beyond its normal commitment. To date, no
such agreement concluded, and as far as the petitioners are aware,
no negotiations have been initiated. In addition, construction of
the Gansevoort MTS will be subject to a new EIS process, with
strong opposition expected from the park and local communities, but
that, too, has not been started. Thus, there has effectively been
no forward progress on the Gansevoort MTS since the 2006 SWMP was
approved, and there is no assurance the facility will ever be
built. If that is the case, the West 59th Street MTS will never be
available for the export of commercial waste of any kind. 34. The
consequence of the developments and realities identified above is
that the 91st
Street MTS, if it is built, will almost certainly end up as the
only marine transfer station in Manhattan for the expert of the
boroughs commercial putrescible waste and in all likelihood for
14
the export of all of Manhattans commercial waste period. Once
the 91st Street MTS is built, with a daily capacity well able to
handle the additional tonnage, the already-problematic use of the
West 59th Street MTS for commercial waste and the huge cost of
converting it to containerization can be expected to result in its
retention as a recycling transfer station only. As a result, the
91st Street MTS will be left alone to handle Manhattans commercial
waste. 35. The further reality underlying this outcome is that it
is Manhattans commercial,
not residential, waste that is being exported to and burdening
poorer neighborhoods in the outlying boroughs. And one of the
primary goals of the 2006 SWMP was to redress this supposed
inequity. If that goal is to be realized, Manhattans commercial
waste must be handled within Manhattan; and the 91st Street MTS
will be the only game in town to achieve this. 36. The SWMP FEIS,
however, assumed that commercial waste would be handled at
three Manhattan MTSs East 91st Street, West 59th Street and West
135th Street, and it is on this basis that only 71 commercial truck
trips a day were projected to be made to and from the 91st Street.
The remaining 186 commercial truck trips a day were allocated to
the two other sites. Now, with the total elimination of West 135th
Street and the uncertainties surrounding West 59th Street, a
reasonable worst case analysis under SEQRA has to posit that East
91st Street will end up as the destination for the additional 186
heavy truck trips each day into the facility and as the origin of
the added 186 daily truck trips out of the MTS. Relevant excerpts
from the 2006 SWMP are annexed hereto as Exhibit B. 37. The
resulting adverse impacts to the areas immediately surrounding the
91st Street
MTS would be significant, adding 186 truck trips in each
direction along local residential streets, but these impacts have
never been measured or taken into account under SEQRA or
otherwise.
15
38.
In February and March of 2012, DSNY, through its consultants,
prepared what it
described as a Technical Memorandum . . . intended to evaluate
the need for a Supplemental Environmental Impact Statement (SEIS)
in light of certain SWMP milestone changes [i.e., changes in the
implementation schedule], the availability of new information, and
changes in the guidance concerning environmental reviews, including
2010 and 2011 revisions to the CEQR Technical Manual . . . 39.
Among other things, the Technical Memorandum purported to address
and update
the traffic analysis for the 91st Street MTS presented in the
SWMP FEIS. However, the updated analysis continued to assume that
there would be only 71 trips a day by commercial truckers to and
from the 91st Street facility. Relevant excerpts from the Technical
Memorandum are annexed hereto as Exhibit C. In light of the
complete elimination of the West 135th Street MTS from the SWMP and
the uncertainty regarding the West 59th Street MTS, as described
above, this assumption was without basis, untruthful and arbitrary
and capricious. As a result, the Technical Memorandum failed to
analyze the very substantial adverse impacts that would be imposed
on the Gracie Point neighborhood and the streets used by trucks to
access the 91st Street MTS and failed to comply with SEQRA in that
regard. Among other things, the Technical Memorandum failed to
evaluate the reasonable worst case scenario, as required by SEQRA
and the City CEQR Technical Manual. As a consequence, its
conclusion, endorsed by DASNY, that no SEIS was required was
arbitrary, capricious and an abuse of discretion. 40. The Technical
Memorandum also failed to adequately assess changes in traffic
and air quality that would impact adversely on the
petitioners-plaintiffs and others in the Gracie Point neighborhood
and required the preparation of an SEIS. In this regard as well,
the Technical Memorandum failed to meet the requirements of SEQRA,
and in relying on that
16
document, DSNY violated the statute. 41. As heretofore alleged
in paragraph 30 above, Section 3.7 of the SWMP required
DSNY to report to the City Council and propose modifications to
the 2006 SWMP if agreements for the 4 MTSs are not finalized within
four years of the adoption of the SWMP. In light of the failure to
have agreements in place for the 91st Street MTS, as well as a
second of the four marine transfer stations, DSNY was duty bound to
propose modifications to the SWMP. Such action may have been taken
in conjunction with the preparation of the Technical Memorandum,
but if it has not been taken, DSNY has violated the SWMP and is
required to take action now. 42. If DSNY has taken action under
Section 3.7 of the SWMP, it failed to comply
with SEQRA in connection with that action in the manner
described in paragraphs 39 and 40 above. 43. Section 360-15.11 of
DECs Part 360 Regulations provides in part:
(b) A planning unit [here the City] must undertake a plan
modification pursuant to subdivision (a) of this section if there
is: * * * * * (3) a change of more than one year to any significant
component of the solid waste management plan implementation
schedule. * * * * * (d) The planning unit must modify the Plan
pursuant to this Subpart or update the plan pursuant to the Subpart
consistent with a schedule approved by the Department. 44. Several
significant components of the 2006 SWMP implementation schedule
have
been delayed/changed by well over a year. These include long
delays in the schedule for the 91st Street MTS, a second of the
four marine transfer stations and the proposed Gansevoort MTS, as
well as the near abandonment of converting the West 59th Street MTS
to a facility capable of
17
handling commercial putrescible waste. In light of these
changes, DSNY was duty bound to have submitted to DEC for approval
a plan modification reflecting the changes and assessing the
impacts thereof. 45. Sometime in late February or early March 2012,
DSNY submitted to DEC what
it apparently described as a Compliance Report identifying the
significant changes in the implementation schedule of the 2006 SWMP
described above. Because the changes included change[s] of more
than one year to . . . significant components of the solid waste
management plan implementation schedule, this Report should have
been submitted as a modification of the 2006 SWMP pursuant to the
unambiguous language of Section 360-15.11(b)(3) of DECs Part 360
regulations; and that modification required compliance with SEQRA.
However, DSNY did not prepare a supplemental EIS to evaluate the
impacts of the changes, including the increased truck traffic to
and from the 91st Street MTS, as described in paragraphs 36, 37 and
39 above, nor did it issue a negative declaration. Moreover, to the
extent DSNY purported to rely on the Technical Memorandum, that
document did not comply with SEQRA in the manner described in
paragraphs 39 and 40 above. 46. Notwithstanding Section
360-15.11(b)(3) requiring plan modifications where
there are changes in an implementation schedule of more than one
year, DEC accepted the Compliance Report as such and did not
require DSNY to submit of a modification of the 2006 SWMP. This
conclusion was communicated to DSNY by a letter from DECs counsel
dated March 9, 2012, a copy of which is annexed to the Petition as
Exhibit D. In the letter, counsel, responding to DSNYs inquiry,
wrote that where changes were caused by delay, DEC did not require
plan modifications provided that the new schedule does not reflect
significant alterations
18
to the plan that changed the proposed locations or methods of
handling the planning units solid waste. 47. The consequence of the
DEC interpretation and, the petitioners-plaintiffs
believe, the underlying reason for it was that in this way, DEC
was able to avoid complying with SEQRA, as would have been the case
with any approval of a plan modification, and correlatively, DSNY
was relieved from its obligations under SEQRA. 48. In fact, as
Section 360-15.11(b)(3) states, because of the change in major
project
components of more than one year, DSNY was required to submit a
plan modification; and in fact, although styled a Compliance
Report, the document submitted to DEC was, factually and legally, a
modification of the 2006 SWMP. This was an action that required
DSNY to comply with SEQRA, but it failed to do so, as alleged in
paragraph 47 above. 49. Similarly DECs acceptance and approval of
the Compliance Report was,
legally and factually, an action approving a modification of the
2006 SWMP. In taking this action, DEC failed to comply with SEQRA,
in that it did not have an SEIS or negative declaration to rely on,
or if it did, the document did not meet the requirements of SEQRA,
and thus DEC could not adequately assess the adverse environmental
impacts described in paragraphs 36 through 40. 50. In accepting and
approving the Compliance Report and not requiring DSNY to
submit a plan modification, DEC also violated its own rules and
regulations, thus invalidating its determination. FIRST CAUSE OF
ACTION AGAINST DSNY AND THE OTHER CITY RESPONDENTS-DEFENDANTS 51.
The allegations contained in paragraphs numbered 1 through 50 are
hereby
19
repeated and realleged as if fully set forth herein. 52. Under
Section 3.7 of the 2006 SWMP and by reason of the changes in
implementation schedules and other changes described above, DSNY
was and is legally required to submit proposed modifications to the
SWMP for the approval of the City Council. In proposing such
modifications, DSNY was required to comply with SEQRA, which, in
this case, required an evaluation of environmental impacts
resulting from the changes in implementation schedules and other
surrounding circumstances. If DSNY has proposed modifications, it
failed to comply with SEQRA in connection therewith in that either
(i) it did not prepare an SEIS or issue a negative declaration or
(ii) the Technical Memorandum on which it relied or may have relied
was deficient under SEQRA in the manner described in paragraphs 38
through 42 above. 53. By reason of the foregoing, the approval of
the 91 st Street MTS as an element of
the SWMP must be set aside and annulled unless and until there
is compliance with SEQRA. 54. Some or all of the
petitioners-plaintiffs are injured and damaged by such failure
to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DSNY and/or the other City respondents-defendants, as more fully
set for the in paragraphs 4 through 16 and 38 through 42 above. 55.
56. Petitioners-plaintiffs have no adequate remedy at law.
Respondent-defendant DSNY and the other City respondents-defendants
should
be enjoined from taking any further steps to implement the
construction of the 91st Street MTS unless and until they comply
with SEQRA. SECOND CAUSE OF ACTION AGAINST DSNY AND THE OTHER CITY
RESPONDENTS-DEFENDANTS 57. The allegations contained in paragraphs
numbered 1 through 56 are hereby
20
repeated and realleged as if fully set forth herein 58. Under
Section 3.7 of the 2006 SWMP and by reason of the changes in
imple-
mentation schedules and other changes described above, DSNY was
and is legally required to submit proposed modifications to the
SWMP for the approval of the City Council. If DSNY has failed to
submit proposed modifications, it has violated its
non-discretionary duty under Section 3.7 and in that way has,
intentionally or otherwise, avoided its obligations to comply with
SEQRA. 59. By reason of the foregoing, the approval of the 91 st
Street MTS as an element of
the 2006 SWMP must be set aside and annulled unless and until
there is compliance with Section 3.7 and in connection therewith,
compliance with SEQRA. 60. Some or all of the
petitioners-plaintiffs are injured and damaged by such failure
to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DSNY and/or the other City respondents-defendants, as more fully
set for the in paragraphs 4 through __ and 40 through 44 above. 61.
Respondent-defendant DSNY and the other City respondents-defendants
should
be enjoined from taking any further steps to implement the
construction of the 91st Street MTS unless and until they comply
with Section 3.7 of the 2006 SWMP and SEQRA. THIRD CAUSE OF ACTION
AGAINST DSNY AND THE OTHER CITY RESPONDENTS-DEFENDANTS 62. The
allegations contained in paragraphs numbered 1 through 61 are
hereby
repeated and realleged as if fully set forth herein. 63. Section
360-15.11 of DECs Part 360 Regulations and by reason of the changes
in
implementation schedules and other changes described above, DSNY
was and is legally required
21
to submit proposed modifications to the 2006 SWMP to DEC for its
review and approval. In proposing such modifications, DSNY was
required to comply with SEQRA, which, in this case, required an
evaluation of the environmental impacts resulting from the changes
in implementation schedules and other surrounding circumstances.
The Compliance Report submitted by DSNY to DEC constituted a plan
modification or the equivalent thereof. In submitting that
Report/Plan Modification, DSNY failed to comply with SEQRA in
connection therewith in that either (i) it did not prepare an SEIS
or issue a negative declaration or (ii) the Technical Memorandum on
which it relied or may have relied was deficient under SEQRA in the
manner described in paragraphs 40 through 44 above. 64. By reason
of the foregoing, the approval of the 91 st Street MTS as an
element of
the 2006 SWMP must be set aside and annulled unless and until
there is compliance with Section 360-15.11 of DECs Part 360
Regulations and SEQRA. 65. Some or all of the
petitioners-plaintiffs are injured and damaged by such failure
to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DSNY and/or the other City respondents-defendants, as more fully
set for the in paragraphs 4 through __ and 40 through 44 above. 66.
Respondent-defendant DSNY and the other City respondents-defendants
should
be enjoined from taking any further steps to implement the
construction of the 91st Street MTS unless and until they comply
with Section 360-15.11 of DECs Part 360 Regulations and SEQRA.
FOURTH CAUSE OF ACTION AGAINST DSNY AND THE OTHER CITY
RESPONDENTS-DEFENDANTS 67. The allegations contained in paragraphs
numbered 1 through 66 are hereby
22
repeated and realleged as if fully set forth herein 68. Under
Section 360-15.11 of DECs Part 360 Regulations and by reason of
the
changes in implementation schedules and other changes described
above, DSNY was and is legally required to submit proposed
modifications to the 2006 SWMP to DEC for its review and approval.
Insofar as DSNY may claim that the Compliance Report was all that
it was required to submit to DEC, then it has violated its
non-discretionary duty under Section 36015.11 of DECs Part 360
Regulations and in that way has, intentionally or otherwise,
avoided its obligations to comply with SEQRA. 69. By reason of the
foregoing, the approval of the 91 st Street MTS as an element
of
the SWMP must be set aside and annulled unless and until there
is compliance with Section 36015.11 of DECs Part 360 Regulations
and in connection therewith, compliance with SEQRA. 70. Some or all
of the petitioners-plaintiffs are injured and damaged by such
failure to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DSNY and/or the other City respondents-defendants, as more fully
set for the in paragraphs 4 through 16 and 38 through 42 above. 71.
Respondent-defendant DSNY and the other City respondents-defendants
should be
enjoined from taking any further steps to implement the
construction of the 91st Street MTS unless and until they comply
with Section 360-15.11 of DECs Part 360 Regulations and SEQRA.
FIFTH CAUSE OF ACTION AGAINST DEC 72. The allegations contained in
paragraphs numbered 1 through 61 are hereby
repeated and realleged as if fully set forth herein. 73. Under
Section 360-15.11 of DECs Part 360 Regulations and by reason of
the
23
changes in implementation schedules and other changes described
above, DSNY was and is legally required to submit proposed
modifications to the 2006 SWMP to DEC for its review and approval.
In turn, in approving any plan modifications to the SWMP, DEC was
and is required to comply with SEQRA, which, in this case, required
consideration of the environmental impacts resulting from the
changes in implementation schedules and other surrounding
circumstances. The Compliance Report submitted by DSNY to DEC
constituted a plan modification or the equivalent thereof. In
accepting and approving this Report/Plan Modification, DEC failed
to comply with SEQRA in connection therewith in that either (i) it
did not prepare an SEIS or have one to rely on, or (ii) the
Technical Memorandum on which it relied or may have relied was
deficient under SEQRA in the manner described in paragraphs 40
through 44 above. 74. By reason of the foregoing, the approval of
the 91 st Street MTS as an element of
the SWMP must be set aside and annulled unless and until DEC
complies with SEQRA in its review of any proposed modifications of
the 2006 SWMP. 75. Some or all of the petitioners-plaintiffs are
injured and damaged by such failure to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DEC, DSNY and/or the other City respondents-defendants, as more
fully set for the in paragraphs 4 through __ and 40 through 44
above. 76. Any approval that DEC has given for modifications of the
2006 SWMP must be
set aside for failure to comply with SEQRA, and DSNY and the
other City respondentsdefendants should be enjoined from taking any
further steps to implement the construction of the 91st Street MTS
unless and until DEC grants an approval in compliance with
SEQRA.
24
SIXTH CAUSE OF ACTION AGAINST DEC 77. The allegations contained
in paragraphs numbered 1 through 76 are hereby
repeated and realleged as if fully set forth herein. 78. In
concluding that DSNY was not required to submit a plan modification
to the
2006 SWMP and in approving DSNYs Compliance Report, DEC violated
its own rules and regulations specifically, Section 360-15.11 of
its Part 360 Regulations. In this way, DEC was able to avoid its
obligations under SEQRA and to avoid considering the environmental
impacts of the plan modifications and surrounding changed
circumstances. 79. By reason of the foregoing, the approval of the
Compliance Report must be set
aside and annulled unless and until DEC complies with its own
rules and regulations and also complies with SEQRA in its review of
any proposed modifications of the 2006 SWMP. 80. Some or all of the
petitioners-plaintiffs are injured and damaged by such failure
to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DEC, DSNY and/or the other City respondents-defendants, as more
fully set for the in paragraphs 4 through __ and 40 through 44
above. 81. Pending compliance with the law, the approval of the 91
st Street MTS as an
element of the 2006 SWMP must be set aside and annulled, and
DSNY and the other City respondents-defendants should be enjoined
from taking any further steps to implement the construction of the
91st Street MTS unless and until DEC approves modifications of the
2006 SWMP and complies with SEQRA. SEVENTH CAUSE OF ACTION AGAINST
DEC 82. The allegations contained in paragraphs numbered 1 through
81are hereby
25
repeated and realleged as if fully set forth herein. 83. In
concluding that DSNY was not required to submit a plan modification
to the
2006 SWMP and in approving DSNYs Compliance Report, DEC stated
that this was its usual practice provided that the new schedule
does not reflect significant alterations to the plan that changed
the proposed locations or methods of handling the planning units
solid waste. 84. As heretofore alleged, the modified 2006 SWMP
implementation schedule does
include significant alternations that change the proposed
locations of certain facilities namely, the virtual abandonment of
the West 59th Street MTS as a location for handling commercial
putrescible waste or commercial waste all and the uncertainties,
including legislatively-required City-State agreement, surrounding
the Gansevoort Recycling MTS, which, taken together, will lead
inevitably to the East 91st Street MTS as the handling site for all
of Manhattans commercial waste. These changes underscore the
impropriety of DECs acceptance of the Compliance Report in lieu of
the mandated plan modification and invalidate the DEC ruling that
no plan modification was required in this case. 85. By reason of
the foregoing, the approval of the Compliance Report must be
set
aside and annulled unless and until DEC complies with its own
rules and regulations and also complies with SEQRA in its review of
any proposed modifications of the 2006 SWMP. 86. Some or all of the
petitioners-plaintiffs are injured and damaged by such failure
to
comply with SEQRA in that they will be subject to adverse
environmental impacts not heretofore identified or considered by
DEC, DSNY and/or the other City respondents-defendants, as more
fully set for the in paragraphs 4 through __ and 40 through 44
above. 87. Pending compliance with the law, the approval of the 91
st Street MTS as an
26
element of the 2006 SWMP must be set aside and annulled, and
DSNY and the other City respondents-defendants should be enjoined
from taking any further steps to implement the construction of the
91st Street MTS unless and until DEC approves modifications of the
2006 SWMP and complies with SEQRA. CONCLUSION WHEREFORE,
plaintiff-petitioners respectfully request that this Court render a
judgment and order containing the following relief: a. Declaring
that DSNY has failed to comply with SEQRA in modifying the SWMP
(either explicitly or implicitly) without preparing a supplemental
environmental impact statement addressing the impact of the
modifications and without issuing a negative declaration; and in
any event, declaring that DSNY has failed to adequately identify,
much less take a hard look at, the adverse environmental impacts,
above and beyond those identified in the original EIS and
subsequent documentation, that will be imposed on the
petitioners-plaintiffs and other residents surrounding the 91st
Street MTS as a result of such modifications; b. Declaring that DEC
failed to comply with SEQRA in approving modifications to the SWMP
without having available to it a supplemental environmental impact
statement or issuing a negative declaration; and in any case,
declaring that DEC has failed to adequately consider the impacts,
above and beyond those identified in the original EIS and
subsequent documentation, that will be imposed on the petitioners
and other residents surrounding the 91st Street MTS as a result of
the approval of such modifications; c. Alternatively, declaring
that DSNY has failed to comply with Section 3.7 of the SWMP and
Part 360 of DECs rules and regulations, in that it has failed to
submit modifications
27
to the 2006 SWMP required in light of delays and other changes
in the implementation schedule set out in the SWMP, and requiring
DSNY to comply with the Section 3.7 and Part 360 and in connection
therewith, to meet the requirements of SEQRA; d. Alternatively,
declaring that DEC failed to comply with its own regulations in
accepting a Compliance Report from DSNY in lieu of the plan
modifications required under Part 360 of its own regulations; e.
Enjoining DSNY and the other City respondents-defendants and their
agents and assigns from proceeding with the contracting for or
construction of the 91st Street MTS until such time as they have
complied with SEQRA and the requirements of Section 3.7 of the SWMP
and Part 360 of DECs rules and regulations; f. Invalidating the
SWMP insofar as it authorizes construction of the 91st Street MTS;
g. Granting the petitioners-plaintiffs their costs and expenses in
this proceeding, including reasonable attorneys fees; h. Granting
the petitioners-plaintiffs such further relief as this Court may
deem just and proper. Dated: New York, New York June 11, 2012
__________________________________ ALBERT K. BUTZEL Albert K.
Butzel Law Offices Attorney for Petitioners-Plaintiffs 249 West
34th Street, Suite 400 New York, New York 10001 Tel: (212) 643-0375
Email: [email protected]
28
VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK )
__________________, being duly sworn, deposes and says that he
is an individual petitioner-plaintiff herein and the ____________
of petitioner plaintiff ________________, another of the
petitioner-plaintiff in this proceeding; that he is united in
interest with the other petitioner-plaintiffs herein; that he has
read the foregoing Verified Petition-Complaint and knows the
contents thereof; and that the same is true to deponents own
knowledge, except as to the matters therein stated to be alleged on
information and belief, and that as to those matters deponent
believes them to be true;. The basis of the information stated on
information and belief are the materials posted by the City of New
York and the Department of Sanitation on its/their websites,
statements of other petitioners-plaintiffs in this proceeding, the
observations of others with knowledge of the SWMP FEIS and the 2012
Technical Memorandum, and papers and documents in the files of our
attorney.
________________________
Sworn to before me this _____ day of June 2012
_______________________ NOTARY PUBLIC