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American Marine Rail, LLC - Ruling, August 25, 2000

Ruling, August 25, 2000

Introduction

These proceedings concern the application of American Marine Rail, LLC (AMR)to construct and operate a barge-to-rail solid waste transfer station that will accept mixed municipal solid waste from the City of New York, including waste derived from both residential and commercial sources. The project site (500 Oak Point Avenue, Bronx, NY 10474) would be leased by AMR from the Harlem Commonwealth Council, Inc. for a term of thirty years. It is 5.6 acres in size and located in an area zoned M3-1 (heavy industry) in Community Board No. 2 along the East River, near the intersection of Barry Street and Oak Point Avenue. The site contains the Honerkamp lumber warehouse and storage facility as well as five abandoned single-story industrial buildings that the applicant proposes to remove.

AMR has applied to the New York State Department of Environmental Conservation (Department or DEC) for permits to handle up to 5,200 tons of waste per day that would be brought to the facility by covered barges from marine transfer stations (MTS's) in New York City. Waste is to remain no longer than 48 hours at the facility before it is presented to the railroad to be shipped out on a unit train that is to leave daily from the Oak Point railyard. The applicant proposes that the barges would be brought into a building and once inside, the doors to this building would be closed and the waste excavated onto a conveyer belt, then compacted into containers that are then removed outside the building to flatbed railcars. AMR has stated its intention to contract with CSX Transportation (CSX), the railroad company, to maintain a dedicated unit train that will remove the containerized waste on a daily basis. The waste is to be sent to a landfill(s) in South Carolina and other states. In the event that rail service is unavailable, by the terms of the draft permit, AMR would be permitted to transport the waste by truck from the site in the first 72 hours of such an event and the operator would have to cease the acceptance of waste after one day of rail disruption.

To construct and operate the facility, AMR requires a solid waste management permit (Environmental Conservation Law [ECL] Article 27, Title 6 of the New York Compilation of Codes, Rules and Regulations [NYCRR], Part 360), a tidal wetlands permit in order to perform work in the littoral zone that is adjacent to the facility (ECL Article 25, Part 661), a protection of waters permit and water quality certification (ECL Article 15, Part 608) to dredge these waters and a determination of consistency by the co-lead agencies, DEC and the New York City Department of Sanitation (NYCDOS), with the State's coastal zone policies and the New York City Waterfront Revitalization Program (Executive Law, Article 42, 19 NYCRR Part 600). The applicant must also seek concurrence on this finding of coastal management consistency with the New York City Department of City Planning (NYCDCP) and the New York State Department of State. Additionally, the applicant is seeking variances from the requirement of 6 NYCRR

§ 360-1.7 that prohibits siting of solid waste facilities within a regulated wetland and from the setback requirement of 6 NYCRR § 661.6(a)(1) that requires all structures to be constructed a minimum of 30 feet back from the landward edge of any tidal wetland in New York City. Accordingly, a notice of hearing and complete application was published respectively in the December 29, 1999 and January 5, 2000 editions of the Environmental Notice Bulletin and the Daily News.

Pursuant to the State Environmental Quality Review Act (SEQRA, ECL Article 8), on December 20, 1999, the Department and NYCDOS jointly determined that the proposed project is an unlisted action (as defined in 6 NYCRR § 617.2[ak]) that will not have a significant adverse effect on the environment and thus, did not require the preparation of an environmental impact statement (EIS).

Legislative Hearing

At approximately 7:00 p.m., on February 8, 2000, a legislative hearing commenced before Administrative Law Judge (ALJ) Helene G. Goldberger and James Haggerty, Chief of the Eastern Permits Section, Regulatory Branch of the New York District, U.S. Army Corps of Engineers (Corps), at the I.S.-74 auditorium, 730 Bryant Avenue, Bronx, New York 10475.^{(1) (2)} Over 300 people attended this very lively legislative session and 63 individuals spoke at the hearing, including elected representatives and spokespersons of many local and New York City community groups. Because the court reporter left abruptly at 11:40 p.m., a few people did not have an opportunity to speak but were encouraged by the ALJ to submit written comments. Apart from the applicant's representative and Department staff, all commenters spoke against and/or in criticism of the proposed project. Additionally, the ALJ received 27 written comments, of which 25 are opposed to the project. The main issues that concern the representatives of the South Bronx community that provided comments on this proposal are: the addition of 5,200 tons of solid waste to an area where poor and minority people reside and that is already the site of a number of transfer stations and other waste-related facilities; the decision by the co-lead agencies to find that the project will not have significant environmental impacts and therefore, would not require an EIS while a proposed transfer station on Staten Island was subject to a positive declaration; the potential for increased truck traffic if/when the trains are not operating; the potential for odors, vectors, and increased air pollution resulting in negative health effects; the loss of access to the waterfront; damage to the natural environment; negative economic effects due to perceptions associated with these kinds of facilities; and incompatibility with the Hunts Point Food Market.

Issues Conference

The issues conference was held on March 9-10, 2000 at I.S.-74, March 14, and April 4-5 at the offices of the Bronx Borough President at 198 161^st Street in the Bronx, and on April 6, 2000 at the offices of Environmental Defense at 257 Park Avenue South in Manhattan. The applicant is represented by Kevin Healy, Peter Paden, and Inger Hultgren of Robinson Silverman Pearce Arohnson & Berman, LLP. Department staff is represented by Assistant Regional Attorneys John Nehila, Udo Drescher, and Gail Hintz. Pursuant to the notice of hearing, seven representatives filed petitions for full party or amicus status and participated in these proceedings. These intervenors are: for amicus status, NYCDOS by its counsel, Deputy Commissioner and General Counsel Leslie Allan and Assistant Corporation Counsel Mark McIntyre; for full party status, the New York City Environmental Justice Alliance (NEJA) by Leslie Lowe, Esq.; for full party status, the Bronx Borough President Fernando Ferrer by Terri S. Blank, General Counsel; for full party status, Environmental Defense (ED) on behalf of itself, the New York League of Conservation Voters (NYLCV) and the Natural Resources Defense Council (NRDC) by General Counsel James T.B. Tripp; for full party status, Congressman Jose E. Serrano, by Ellyn M. Toscano, Chief Counsel and Luis A. Torres, Esq., Special Counsel to the Congressman; for full party status, New York Lawyers for the Public Interest (NYLPI) by attorneys E. Gail Suchman, Lisa F. Garcia, and Gail E. Horwitz on behalf of The Point Community Development Corp., Honorable David Rosado, Honorable Ruben Diaz, Jr., Honorable Carmen E. Arroyo, Honorable Pedro G. Espada, Community Board #2, Corpus Christi Monastery, Bright Temple A.M.E., Hunts Point Community Awareness Committee, Mothers on the Move, Walter Cahn Associates, Unitas Therapeutic Community, Inc., SEBCO Development, Law Peninsula Head Start Center, Eva's Kid's Daycare, The Seneca Center, Inc., We Stay/Nos Quedamos, Cherry Tree Association, Inc., Rosemarie Tirado, Jose Ortiz, and the Hunts Point Terminal Co-op Produce Ass'n; and for amicus status, CSX Transportation by John W. Humes, Jr. Senior Counsel, Lee Fulton, and Mark Popovich, Assistant Vice President of Merchandise Operations. Neither the applicant nor the staff objected to the environmental interest of any of these individuals or organizations pursuant to 6 NYCRR § 624.5(b)(1)(ii).⁽³⁾

As a result of the submission of application materials that were not available to the parties and the ALJ prior to the issues conference, because certain staff of DEC and NYCDOS could not attend specific sessions to address particular air issues, and because the ALJ requested written argument on specific legal questions, a post-issues conference submissions/briefing schedule was established. The first round of briefs was due on May 19, 2000 and was to address legal issues concerning the applicability of the PM _2.5 standard to the environmental review of this project, the applicability of the Part 201 permitting requirements to this project, and whether, in assessing impacts pursuant to SEQRA, the applicant performed the appropriate calculations of the potential air emissions from the air contamination sources (predominantly off-road equipment) to be used at this facility. The parties were also to use these briefs to address issues that result from a review of the environmental assessment statement (EAS) Air Quality Analysis Backup Data, produced on the last day of the issues conference by the applicant. In addition, NEJA was to submit whatever additional comments it had on the late-designed container reloading operation (Issues Conference Exhibit 65) that was submitted also on the last day of the issues conference. A second round of briefs was to be submitted by June 16, 2000 in which the intervenors would provide responses to these issues.

Because there were some differences between the applicant and the staff on the interpretation of permit condition no. 31 concerning the use of the doors of the facility during operations, the applicant requested an opportunity to submit additional written information on permit condition no. 31 and did so on April 28, 2000 (Issues Conference Ex. 79). I also directed the staff to provide a revised version of this condition due to its ambiguity in the draft permit and staff submitted the new language as part of its brief.

Due to delays in receiving a complete transcript and the Department of Sanitation's notification to the parties and the ALJ on or about May 17^th that there were over 32 additional documents related to the air analysis (a letter from Mr. McIntyre dated May 24, 2000 revealed that there were in fact 38 additional documents), the briefing schedule was altered twice.⁽⁴⁾ The first round of briefs was due on June 13, 2000 and the second round of briefs was due on July 11, 2000. On June 9, 2000, AMR submitted its brief and a California Air Resources Board (CARB) document entitled "Public Meeting to Consider Approval of California's Emissions Inventory for Off-Road Large Compression-Ignited (CI) Engines" that relates to comments made by NYLPI's expert Daniel Gutman; on June 13, NYLPI submitted its brief; on June 13, Mr.Tripp submitted the joint brief of ED, NRDC and the NYLCV as well as Chapter IV from the EPA Staff Report on PM (Exhibit 69), a letter dated April 20, 2000 from Kathleen Callahan of EPA to Annette M. Barbaccia of the NYC Mayor's office, and a copy of their revised permit conditions (Issues Conference Exhibit 80a). I received staff's submission on June 14 that includes a letter dated March 3, 1998 from Robert K. Warland of DEC to Ronald J. Borsellino of EPA, a White House memo on Implementation of Revised Air Quality Standards for Ozone and Particulate Matter dated July 17, 1997, the Callahan letter, a stipulation dated March 26, 1992 between the City of New York and DEC in City of New York v. DEC, an affidavit by Leon Sedefian dated June 13, 2000, an affidavit by Densford D. Escarpeta dated June 12, 2000, and revised language for draft permit condition no. 31. Several corrections to these submissions resulted in the brief being resubmitted by staff on June 19, 2000. While the briefs and submissions of NYCDOS were e-mailed to me on June 13, 2000, I received the hard copies of the brief and the affidavits of Angela Licata Misiakiewicz dated June 12, 2000 and Joshua R. Laird dated June 7, 2000 on June 14, 2000.

On June 9, 2000, I received a phone call from attorney Healy on behalf of AMR in which he expressed concerns regarding rumors that DEC staff was preparing to rescind the negative declaration. I had not been involved in any such discussions and had heard no such rumors; however, I contacted Assistant Regional Attorney Nehila to determine whether they had any basis. Mr. Nehila advised me that while there had been discussions, no determinations had been made. Later the same day, he called me to advise me that nothing further would be forthcoming from staff that day. By letter dated June 14, 2000, Mr. Nehila asked me to make my issues ruling on the basis of the information garnered by this point and to eliminate the need for the second briefing. Because the determination to have two rounds of briefs was based upon the manner in which much of the information relevant to the staff's determination was revealed, I did not agree with this request.

I received the final briefs of the applicant and NEJA on July 11; the latter included the resume of John C. Ryan, P.E. On July 12, 2000, I received the final briefs of the staff including a letter dated July 21, 1997 from EPA Director Callahan to Robert Warland and an affirmation of Kenneth B. Brezner dated July 10, 2000. Also on July 12, I received the closing memorandum from the NYCDOS including a section of an EPA Internet site with respect to EPA certification of the excavator, a page from the modified Solid Waste Management Plan (SWMP) regarding AMR, and an affirmation of counsel. On July 12, NYLPI submitted its final closing brief, including EPA's Draft Regulatory Analysis for Proposed Heavy-Duty and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements Rule dated May 2000, a letter dated June 27, 2000 from EPA's Robert Hargrove to Martha Hirst of NYCDOS, a December 28, 1998 letter from EPA's Director Callahan to Eddie Bautista and Leslie Lowe, CSX Corporation Quarterly Flash, and Security and Exchange Commission (SEC) information concerning Compost America Holding Co. Inc. dated May 19, 2000. ED's final reply brief arrived on July 12 which included the June 27 Hargrove-Hirst letter.

Because NEJA's submission addressed operational issues that were not intended to be the subject of this second round of memoranda, I invited AMR to submit a response to it by memo dated July 14, 2000. By letter dated July 18, Mr. Healy declined. Because NYLPI's closing brief contained a new argument concerning alleged financial and ethical concerns related to AMR, by memorandum dated July 17, I again asked the staff and AMR if they wished to respond. Staff submitted a response dated July 25, 2000. Because Mr. Healy was on vacation when I asked for this submission, Mr. Paden requested an extension until July 31, 2000 which I granted. Accordingly, AMR submitted its response to these new arguments on July 31, 2000. With the receipt of these documents, the issues conference record was closed on July 31, 2000.⁽⁵⁾

NEJA's Request for an Adjournment

By letter dated February 11, 2000, Ms. Lowe wrote to the ALJ requesting that because NEJA had been delayed in obtaining the application materials that there be a two week postponement of the issues conference and the petition deadline so that NEJA's rail expert would have sufficient time to prepare. In my letter dated February 16, 2000, I denied this request finding that the notice of hearing had provided more than the required time prior to the deadline for submission of petitions.⁽⁶⁾ Due to the applicant's presentation, at the issues conference, of materials including the Joint Permit Application Sections 404, 401; Parts 600, 608, 661 submitted to DEC dated November 26, 1997, revised October 15, 1999, that had not been made available to the Office of Hearings and Mediation Services (OHMS) or the petitioners, additional time was afforded the parties to review those documents and present a response either at the issues conference or in the post-issues conference memoranda.⁽⁷⁾

NYLPI's Request for Adjournment, Discovery and Motion for Dismissal or Remand

Completeness

In its petition for party status, in addition to its identification of matters that it seeks to present as issues at a future adjudicatory hearing, NYLPI asked for the summary disposition of the application claiming that DEC did not have jurisdiction to review the application because it was not complete and because DEC and NYCDOS improperly issued a negative declaration. With respect to completeness, NYLPI, along with NEJA, the Borough President's Office, and Environmental Defense argued that pursuant to 6 NYCRR § 360-1.8(g), a permit application made by or on behalf of a municipality for the construction of a solid waste management facility shall not be complete until a local SWMP that identifies all proposed or existing facilities used to process, store, treat, or dispose of solid waste within the municipality is in effect. NYLPI notes that 6 NYCRR § 360-1.2(b)(21)(iii) defines "by or on behalf of a municipality" as when the capacity of the proposed facility will be designed, used or designated primarily (more than 2/3) for solid waste received from the municipality. Section 360-15.11(a) of 6 NYCRR also provides that ". . .[a]n application for a permit to construct and operate a solid waste management facility by, or on behalf of, a municipality which is not described by an approved plan may not be determined by the department to be complete until the department approves a modified plan describing such facility." ED argues that even commercial waste received by the facility, because it would come from the City and through a City-owned MTS, would be waste received from a municipality. TR 205. NYLPI also pointed to 6 NYCRR § 360-15.9(c) that relates to SWMP contents and calls for the "identification of proposed or existing solid waste management facilities . . .within the planning unit, their expected life and current operating status, . . ."

On the issue of completeness, the applicant argued that 6 NYCRR § 624.(4)(c)(7) provides that this matter will not be an issue for adjudication. Pursuant to 6 NYCRR § 621.1(d), a complete application means one that is in an approved form and is determined by the Department to be complete for purposes of commencing review but which may need to be supplemented during that process in order for DEC to make findings and determinations required by law. Attorney Healy maintained that this would be an issue for a court determine. The staff agreed with the applicant that this was not an adjudicable issue and also stated that it did not review the application as being made on behalf of the City. In addition, while the applicant agrees that it would very much like to receive a contract from the City to handle part of its waste stream, it recognizes that it may not obtain that contract and therefore, would be limited to handling commercial waste. The City does not handle commercial waste.

In late April, the City generated a Draft SWMP Modification that calls for each borough to handle its own residential waste. See, Issues Conference Exhibits 100a-e. Thus, if this SWMP Modification is finalized, AMR will no longer be considered one of a number of long-term export alternatives for the City's residential waste. In correspondence dated May 11, 2000, the ALJ asked the parties to advise how this event relates to the permit application. Responses from the applicant and NYLPI indicate that the issue of completeness is moot because AMR can no longer be considered an entity that will be handling City waste. The applicant stated that it is contemplating a challenge to the proposed SWMP Modification but at the this time, it appears here is no further need to address this matter.⁽⁸⁾

Discovery

The adjournment requested by NYLPI was in part based upon its position that discovery was needed by this petitioner, prior to the issues conference, in order to formulate its position. Specifically, NYLPI asked for (1) all DEC analyses upon which it relied to reach its determination of non-significance; (2) access to all DEC files on the AMR facility; and (3) access to all documents contained in DEC's files related to rail usage by Waste Management's Harlem River Yard and Republic Service's 132^nd Street facility in the South Bronx as well as any documents related to any meeting attended by DEC personnel related to these facilities. NYLPI included with this request its application to conduct depositions regarding such meetings. In response to its freedom of information law (FOIL) request to DEC, NYLPI states that DEC staff allowed review of records two days prior to the submission of its petition dated March 1, 2000. Throughout the issues conference, requests were made by various petitioners for documents from the applicant, DEC and NYCDOS to which affirmative responses were made. And, additional material was presented at the issues conference and afterwards by the applicant and others to the participants including the ALJ.

Ruling

As discussed at the issues conference, 6 NYCRR § 624.7(a) provides that "[d]iscovery is limited to what is afforded under Part 616 . . ." prior to the issues conference. Only after designation of issues and parties does a party have the right to seek discovery upon any other party in general conformance with CPLR 3120(a)(1)(i), (ii), 3101(d)(1) and 3123. 6 NYCRR § 624.7(b). With the permission of the ALJ, other discovery tools may be used including pre-issues conference discovery under extraordinary circumstances. §§ 624.7(a), (c). From the information provided by NYLPI, it does not appear that its FOIL request was denied or that extraordinary circumstances envisioned by these regulations existed. As noted by this petitioner and others, Part 624 puts a heavy burden on citizens who wish to present a case for adjudicable issues. There is limited time from the publication of the notice to the petition submission date for intervenors to gather information, obtain expert input, and present an outline of a case. However, many of the involved petitioners have been scrutinizing this application for some time and nothing prevented them from seeking information pursuant to FOIL prior to the notice or as soon as the notice was published. As I stated at the conference, the usual 30-day notice period was exceeded here by the applicant and staff in order to provide more time for the community and other interested parties to make preparations to participate in these proceedings. And, due to the scheduling of the issues conference over a number of days over several weeks' time, the petitioners were given more time to review materials and to make additional FOIL requests if it was deemed necessary. Based upon the rulings below, the parties may determine that it is appropriate to seek further discovery; however, participation in the issues conference was not stymied by the my determination not to grant a further adjournment for pre-issues conference discovery.

Summary of Ruling

In this ruling, I find that the Department staff erred by failing to require an EIS based upon the size of the project, the potential for cumulative impacts related to odors and air pollution, and the potential impacts on natural resources. Pursuant to 6 NYCRR § 624.4(c)(6)(a), I am remanding the negative declaration to staff for a redetermination. In the event staff decides to maintain its position on environmental significance, the application will have to be supplemented pursuant to this ruling. While I have found two issues for adjudication based upon the record before me, a supplemental issues ruling will be necessary to determine all the adjudicable issues and party status.

Proposed Issues

Segmentation

Out of the completeness discussion arose the matter of whether the use of the marine transfer stations for commercial waste should have been subject to analysis in the environmental review of AMR. NEJA argued that the City's MTS's have not been used for this purpose in many years, and thus, the shipment of large amounts of commercial waste from these facilities would dramatically increase a number of environmental effects from these activities such as truck traffic. Accordingly, NEJA posits, not to have assessed these environmental impacts is improper segmentation of the application. NYCDOS responded by stating that the marine transfer stations already hold permits to accept a large amount of waste and they are currently underutilized. According to Deputy Commissioner Allan, these facilities all maintain permits from DEC and because the waste - residential or commercial - is essentially the same (". . . [i]t is the same potato skins and tomato peels . . . some comes from a restaurant and supermarkets and some comes from a household."), no further permitting or further environmental analysis would be required for these facilities to accept commercial waste. The MTS's do operate currently allowing approximately 5,000 tons of waste to be processed through them, with capacity of about 8,000 tons.⁽⁹⁾

Ruling

Segmentation is the division of the environmental review of an action so that various stages of it are addressed as though independent of one another, requiring separate environmental reviews. 6 NYCRR § 617.2(ag). Section 617.3(g) provides that the entire set of activities or steps that comprise an action must be considered the action and that considering only a part or segment of it is contrary to the intent of SEQRA. The regulation allows for a segmented review when the lead agency determines it is necessary but requires that the determination of significance and any subsequent EIS demonstrate that such review will not be less protective of the environment. The ban against segmentation seeks to prevent lessened scrutiny of a project because it has been divided into smaller projects. See, Schultz v. Jorling, 164 AD2d 252 (3d Dep't 1990), appeal denied, 77 NY2d 810 (1991). However, segmentation is not applicable to the facts cited by NEJA because the marine transfer stations have already been permitted and subjected to their own environmental review. See, Allan letter, p. 3, Issues Conference Ex. 99. It is not the case that the applicant or reviewing agencies have divided the review of the use of the MTS's from the project and a future SEQRA proceeding will address those impacts.

And, while NEJA and other petitioners, particularly Environmental Defense, have raised generally the argument that the City is not doing the best job of assessing the environmental impacts of the closing of Fresh Kills by allowing the individual review of solid waste management permit applications to go forward, there is no requirement of this applicant that it wait for such analysis to take place. It is apparent that there will be many more environmental reviews over time before all the mechanisms that will supplant Fresh Kills are in place. In Residents for a More Beautiful Port Washington v. Town of North Hempstead, N.Y.L.J., Sept. 1, 1988, p.21, col.4 (Sup. Ct. Nassau Co.,) aff'd, 149 AD2d 266 (2d Dep't 1989), the court allowed an EIS to analyze impacts from an incinerator alone despite the fact that Nassau County was holding remaining acreage for a future undetermined use such as a composting facility. The court found that future uses would be subject to environmental review and no specific plans had yet been formulated.

The Negative Declaration

While I did not agree to grant the motion of NYLPI to dismiss this proceeding or adjourn the application due to the decision of the co-lead agencies to issue a negative declaration on this project, this matter was important to the discussions throughout the conference. Many of the petitioners criticized the determination by DEC and NYCDOS that this project would not have a significant environmental impact and did not require the preparation of an environmental impact statement. Environmental Defense argues that due to the potential for incremental impacts stemming from AMR's operation, e.g., air contaminants from use of trucks during certain periods and odors from garbage-loaded railcars sitting on tracks, an EIS is necessary. The Bronx Borough President's office also maintains that the contingent use of trucks for as long as 72 hours indicates a need for an EIS. Congressman Serrano states in his petition that the co-lead agencies failed to take a hard look at many potential impacts of this facility - dredging of littoral zone, trucks, and trains sitting for days in a railyard within 500 feet of residences.

In addition, Congressman Serrano and NYLPI argue that the action was incorrectly classified as "unlisted" rather than a Type I action because the facility's square footage exceeds the threshold set forth in 6 NYCRR § 617.4(6)(v) and it is substantially contiguous to designated open space and public parkland - Tiffany Pier, North and South Brother Islands - pursuant to § 617.4(b)(10). NYLPI also maintains that the negative declaration is deficient in terms of addressing the project's interference with migratory fish and wildlife species, impacts on a significant wildlife habitat area, and water quality pursuant to 6 NYCRR §§ 617.7(c)(i), (ii).

Type I Requisites in 6 NYCRR § 617.4

A Type I action is one which is more likely to have a significant effect on the environment and thus, require the preparation of an EIS. 6 NYCRR § 617.4(a). Section 617.4 of 6 NYCRR provides a list of Type I actions that "are not exhaustive of those actions that an agency determines may have a significant adverse impact on the environment. . .". Among these, are "activities, other than the construction of residential facilities, that meet or exceed any of the following thresholds . . .: (v) in a city, town or village having a population of more than 150,000, a facility with more than 240,000 square feet of gross floor area;". The petitioners, particularly, NYLPI, assert that the project's size, including the area in the building, around the building, and in the water is about 360,000 square feet and thus exceeds this threshold. The applicant argues that this threshold amount relates to a zoning term - "gross floor area" - which concerns the square footage within the building and that is 75,200 feet. As to the amount of square footage of the project to be developed, the applicant states that is 242,300 square feet which relates to the alteration of property and the Type I threshold for that factor is 10 acres.

Square Footage Threshold

With respect to this threshold, while NYLPI was unable to provide any precedent in which it was addressed, it is apparent that square footage relates to floor area within a building. In fact, in the SEQRA Handbook, p. 17 (published by the Department in 1992 as a guide to this statute), the Department specifically distinguishes square footage of a building and disturbance of surrounding acreage resulting from a shopping mall expansion as an example of when 617.4(b)(6)(i) and (v) lead to a Type I designation.

Contiguity Threshold - Tiffany Pier & North and South Brother Islands

NYLPI and Congressman Serrano also maintain that the project is substantially contiguous to parkland - Tiffany Pier, a public recreation area that is between 1100 and 1200 feet from the site - and open space - North and South Brother Islands, which have been designated as significant fish and wildlife habitat areas by the Department of State and are approximately 1000 feet from the site of the proposed facility. Section 617.4(10) includes also " any unlisted action that exceeds 25 percent of any threshold in this section, occurring . . . substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space . . . " The applicant and staff dispute the application of this section to the project arguing that these areas are not substantially contiguous to the project site because of the distance between them. In addition, AMR and staff note that North and South Brother Islands are in the East River with a shipping channel separating the project from them.

Tiffany Pier lies approximately 1200 feet to the east of the AMR site and while both are situated on the shorelines of the East River, the New York Organic Fertilizer Company (NYOFCO) sludge pelletization facility, the Honerkamp loading dock, as well as other remnants of former industrial uses lie between them.⁽¹⁰⁾ The applicant acknowledges that from the tip of Tiffany Pier one can see the site. And, because this facility will be marine-based, it is likely that visitors to Tiffany Pier will also be able to view the garbage barges that come to the AMR facility.

With respect to the Brother Islands, it is North Brother Island that is visible from the site. A coastal fish and wildlife habitat rating form that was produced by the New York State Department of State Division of Coastal Resources & Waterfront Revitalization and submitted into the issues conference record by NYLPI indicates that these islands are relatively undisturbed wooded islands (unusual in the New York metropolitan area) and that they contain one of only 5 heronries active in the Manhattan Hills ecological region and one of only 2 double-crested cormorant colonies in southeastern New York. North Brother Island is owned by the City but there are 2.5 acres under Coast Guard jurisdiction; once used for a hospital, the buildings there are now vacant and dilapidated. The interior of South Brother Island is privately owned; however, the perimeter is under the jurisdiction of the New York City Department of Citywide Administrative Services. See, Plan for the Bronx Waterfront, p. 55, Issues Conference Ex. 29; TR 1220. South Brother Island is about 10 acres in size, uninhabited, rocky and wooded; North Brother Island is 15 acres with a mix of abandoned buildings and deciduous woods. In the Department of State rating form, the section on impact assessment notes that any activity that would disturb the rookeries during the nesting period of mid-March-August such as significant pedestrian traffic or recreational use such as boat landings could adversely affect these bird populations. In addition, removal of the islands' upland forest habitat or disturbance of preferred wetland feeding areas that are probably distant may also affect these birds.

Ruling

Among the questions to answer in determining whether this facility should be deemed a Type I action by virtue of its proximity to Tiffany Pier, North Brother Island and South Brother Island is whether these areas are publicly owned or operated parkland, recreation area or designated open space. No party indicated that the City had designated the islands as park or as designated open space nor that they had been designated as a critical environmental area (CEA) pursuant to 6 NYCRR § 617.14(g). The islands do not appear to meet the other criteria in this section of the regulations - parkland, recreation area, or designated open space. Moreover, given the 1000-1200 feet between North Brother Island (South Brother Island is farther from the site and buffered from it by North Brother Island) and the shipping channel between the two areas, it is questionable whether the substantially contiguous description would fit.

Tiffany Pier is a public recreation area. The issue then becomes whether Tiffany Pier meets the threshold requirement of 6 NYCRR § 617.(b)(10) as to whether the project site is substantially contiguous to it. As noted by NYLPI, the SEQRA Handbook,. pp. 16-17, indicates that "substantially contiguous" is intended to address situations where a proposed project is not directly adjacent to an area of environmental concern but is close enough that it could still have an impact. The Third Department, in Lorberbaum v. Pearl, 182 AD2d 897 (3d Dep't 1992), concurred with this interpretation of the regulations when it found that the Town of Plattsburgh had improperly determined that a large residential development overlooking historic bays (designated as National Historic Landmarks), on the scenic shores of Lake Champlain, was an unlisted action that would not have a significant impact on the environment.

With respect to Tiffany Pier, while there are already a number of seemingly incongruent uses that are closer to this park then AMR's proposed facility, the spectre of garbage barges coming to the site does lead to a conclusion that based upon proximity, the co-lead agencies should have designated this action Type I. In Lorberbaum, the residential development that was proposed was deemed to be Type I based upon the visual and other impacts that would redound upon the National Historic areas that were in close proximity.⁽¹¹⁾ In this community, the value of this pier, due to the scarcity of such resources, could be seen as equally valued to Valcour Bay in the Adirondack Park.

Unlisted Action that Exceeds Type I Threshold Established by Involved Agency

NYLPI also pointed to 6 NYCRR § 617.4(b)(11) which provides that "any unlisted action that exceeds a Type I threshold established by an involved agency pursuant to section 617.14 of this Part" is a Type 1 action. NYLPI argues that this section is applicable because NYCDOS is an involved agency because it also has to give approvals to the project and the City Environmental Quality Review (CEQR), Executive Order No. 91, designates a marine transfer station as a Type I action. A review of CEQR § 6-15(a)(ii)(C), Lists of Actions, Type I, does list under "relating to public institutions" and "new sanitation facilities," marine transfer stations. Accordingly, as pointed out by Mr. Healy, this classification is meant to address municipal MTS's and would not include the AMR facility.

Types of Impacts to Consider Pursuant to 617.7

Having found that the project was misclassified based upon 6 NYCRR § 617.4(b)(10), I also note that § 617.4(a)(1) of 6 NYCRR specifically states that the list set forth is not exhaustive of those actions that may have a significant environmental impact on the environment and require the preparation of an EIS. And, even those actions that are classified as Type I are not necessarily the proper subject of an EIS. For all actions, the lead agencies must determine what types of impacts will result in order to make a determination on significance. To begin, 6 NYCRR § 617.7(c)(ii) lists " . . . substantial interference with the movement of any resident or migratory fish or wildlife species; impacts on a significant habitat area; . . or other significant adverse impacts to natural resources;" as among the criteria for determining whether a project may result in significant adverse environmental impacts.

Pursuant to 19 NYCRR § 602.4, the Department of State, in consultation with DEC, designated North and South Brother Islands as significant coastal wildlife habitats. This process entails the use of criteria to screen and identify these habitats in consultation with DEC, public notice and review of this identification. Then, the Secretary of State determines based upon that record whether the area deserves this recognition. Once so designated, the significant habitats are drawn on the coastal area map, filed with the respective county and municipal clerks' offices and used in the consistency review process to assess whether a proposed development would significantly alter or destroy such habitat.

Assistant Director William F. Barton of the Department of State Division of Coastal Resources, in a letter to Ms. Suchman dated March 21, 2000, states that the rating form that provided the basis for the Brothers' designation was relied upon by the Department of State in its review of AMR's consistency certification. In the NYS Coastal Management Program Record of Consistency Review Decision on AMR, regarding policies 7 and 8 that concern protection of fish and wildlife resources, the Department of State concludes that the proposed action would not occur within a State-designated significant coastal fish and wildlife habitat. Despite the applicant's indication on its federal coastal zone consistency form that the project is not located in the vicinity of any significant wildlife habitats, this document reports that the North and South Brother Island Significant Habitat is located about 1/4 mile to the south of the applicant's parcel.⁽¹²⁾ The Department of State decision provides that the proposed activities of dredging, bulkhead repair, and pier construction would not affect the upland resources of these islands. However, this decision does not address the effect, if any, of the elimination of the littoral zone at the site or the day-to-day activities of AMR.

The rating form states that while the islands provide habitat for many varieties of shore birds, these animals must use other wetland feeding areas. The rating form also indicates that these feeding areas are poorly documented; yet, the applicant's efforts to assess the nature of wildlife use of the site are limited to field reconnaissance conducted on November 12-13, 1997. This would not be the ideal time of year to evaluate the site's usage by migratory birds. And, the Joint Permit Application (JPA), p.2-10, acknowledges that the loss of littoral habitat at the site "would include loss of shorebird foraging habitat during low tide." The JPA goes on to state that it does not deem this loss significant because of the "highly degraded nature of the habitat present." However, given the relative proximity of the North and South Brother Island habitats to the site, the applicant's analysis of this area appears insufficient.

Ruling

SEQRA requires the lead agency to make a reasoned elaboration with respect to the significance determination. Cathedral Church of St. John the Divine v. Dormitory Authority of State of New York, 224 AD2d 95 (3d Dep't 1996). At least with respect to this issue, the Department staff's uncertainty with respect to the Department of State's designation of North Brother Island indicates that the requisite hard look was not taken. TR 277. Thus, the EIS that is prepared for this project should analyze its effects on the bird habitat on the Islands specifically with respect to the loss of littoral zone and the day-to-day operation of the facility. In the event that an EIS is not prepared, an adjudicatory hearing will be convened to address this omission in the application. Issues for adjudication may be demonstrated by the identification of an omission. In the Matter of Oneida County Energy Recovery Facility, Interim Decision, July 27, 1982; In the Matter of Halfmoon Water Improvement Area, Interim Decision, April 2, 1982; In the Matter of Broome County Department of Public Works, Commissioner's Decision, June 11, 1984.

There are other impacts with respect to this project, as noted in the remainder of this ruling, that provide a basis for my determination that this project should be the subject of an EIS. Overall, the amount of waste that will come to the facility, the potential cumulative effects of odors and air pollution resulting from the waste, truck traffic, and other diesel equipment, as well as the effects on the littoral zone demand that there be further analysis. SEQRA sets a relatively low threshold for the issuance of a positive declaration and I have found that the AMR project has met it. SEQRA § 8-0101; 6 NYCRR §§ 617.4(a)(1), (b)(2), 617.14(g)(4); Scenic Hudson v. Town of Fishkill Town Board, 258 AD2d 654 (2d Dep't 1999).

Natural Resources

NYLPI stated in its petition for party status that AMR and DEC did not comply with Part 360 regulations, tidal wetland regulations, State coastal policies and SEQRA with respect to the impacts that this project will cause to the natural resources of the area. NYLPI cites to 6 NYCRR §§ 360-1.7(a)(2)(iv) ("[n]ew solid waste management facilities must not be constructed or operated within the boundary of a regulated wetland") and 360-1.7(c) (sets forth requirements for obtaining variance from requirements in this part) in support of its position. NYLPI also noted that the project does not comply with the setback requirements of 6 NYCRR § 661.5 and requires a variance pursuant to 6 NYCRR § 661.11(a). NYLPI argues that AMR has not met the requirements for this variance either. In addition, NYLPI argued that the applicant has not complied with the Coastal Management Program/State Waterfront Revitalization and Coastal Resources Act, Executive Law, Article 42 because it has not prepared a coastal assessment form (CAF) and because it noted on the federal CAF that there was no State-designated significant fish or wildlife habitat. Finally, citing 6 NYCRR § 617.7(c)(1)(ii), NYLPI maintains that the negative declaration is deficient on this subject because it does not address substantial interference with wildlife, impacts on significant habitat area and other potential impacts to natural resources. This last argument is addressed in the preceding section of this ruling.

Dr. Cantelmo's Critique of AMR's Investigation of the Site

In support of these claims, NYLPI offered the testimony of Dr. Frank Cantelmo, a professor in the Department of Biological Sciences and Environmental Studies Program at St. John's University and Jose Cuebas Ramirez, a subsistence fisherman for over 25 years in this area. Dr. Cantelmo attended the issues conference on April 5, 2000 and emphasized the paucity of information that supported the conclusions in the Joint Permit Application that the loss of littoral habitat was insignificant due to its degraded state and poor habitat. See, JPA, p. 2-10, Issues Conference Ex. 5c. TR 1141-1156. Dr. Cantelmo criticized the applicant's reliance upon a study that had been performed on the opposite side of the river, five years prior. TR 1143. In addition, Dr. Cantelmo faulted the conclusions regarding the "lack of primary production and the paucity of benthic macroinvertebrates at the site" based upon a one day visual observation in November. TR 1143-44. He maintained that grab samples taken at this site would be the more appropriate method of investigation. TR 1144.

Dr. Cantelmo cited to the work he did on the Westway project to demonstrate that significant fish habitat could be supported by the old, dilapidated piers. TR 1144-46. Based upon discussions with local fishermen, Dr. Cantelmo reported that there were routine catches of blue fish, snappers, menhaden, shad and abundant numbers of blue crabs including juveniles that require greater levels of oxygen in the water to flourish. TR 1148-49. And, pointing to the New York Harbor Water Quality Regional Study, 1998, p. 11, Issues Conference Ex. 52, Dr. Cantelmo noted the improvement in dissolved oxygen levels found at the Barretto Point Harbor Survey Station, near the site.

Staff responded to Dr. Cantelmo's analysis by stating that there was preliminary sampling performed at the site in August 1997 and more in November of that year indicating that the chemistry of the materials found were "not supportive of a diverse and viable benthic community." TR 1207. However, Dr. Cantelmo responded to this by stating that it is not sufficient to do core sampling to determine the viability of the benthic community. He stated that it is possible for organisms to adapt to the contamination in the soils by residing in the surficial layer. TR 1209-10. He posited that sampling done to determine soil toxicity is not the appropriate mechanism for assessing the benthic macroinvertebrate community. TR 1210. He described the various means by which he would sample using a epibenthic sled, a ponar grab and a benthic otter trawl. TR 1211.

Mr. Zahn, the DEC staff marine biology specialist agreed with Dr. Cantelmo that there were not many site-specific biological samples taken at the site. However, he disagreed with the need for these because of the results of the sediment chemistry tests. TR 1212. He said that these results indicate that while the area may not be devoid of benthic organisms - they are indicative of a habitat that is not preferable. He added that organisms that might be living in and on these highly contaminated sediments accumulate these contaminants in their bodies and as others up the food chain eat them, the contaminants bioaccumulate. TR 1213. Mr. Zahn stated that AMR's proposed capping of these sediments with clean materials would be an improvement to this environment. TR 1214. However, Dr. Cantelmo maintained that sampling would have to be performed to confirm this result because of the capability of organisms building habitats that allow them to live in contaminated sediment and function. TR 1215.

Dredging

Dr. Cantelmo raised the matter of how dredging itself would stir up contaminants in the sediment and cause more harm by dispersing toxics. TR 1217-1218. In response, Mr. Drescher pointed to draft permit conditions 20-23 that provide for measures to minimize this dispersal. TR 1229; 1239-1246; Joint Permit Application, p. 2-10. In addition, Mr. Zahn stated that the sediments at the site had reached a stage where there would not be improvement unless there was some affirmative action taken. TR 1229-1230. Still, Dr. Cantelmo reasserted that the sampling performed was not adequate to detect whether there were more organisms in different layers and the nature of the environment in those different layers. TR 1231-1239.

Effects on Bird Populations on North and South Brother Islands

With respect to the proximity of North and South Brother Islands to the site (North Brother Island is 1000-1200 feet from the site, with South Brother being on the other side of it from AMR), Dr. Cantelmo commented on their unique characteristic - of providing undisturbed upland habitat for large numbers of colonial water birds that depend upon fish for a large part of their diet. TR 1161-62. He stated that the birds' proximity to the area would also be indicative of the existence of fish to support them. TR 1162. While acknowledging that the channel between the islands and the AMR site is used currently by marine traffic, Dr. Cantelmo observed that this activity is not nearly what it would be if barges were brought every day to this specific site. In response to these latter observations, the applicant noted that the channel is currently used by oil tankers, sanitation barges, and that AMR would only be adding six trips per day to this traffic.

Dr. Cantelmo also raised concerns about seagulls following the barges and then interfering with the species that are nesting on North and South Brother Islands. However, the applicant pointed out that the barges would be covered at the MTS's thus minimizing the lure for the seagulls. TR 1167-69. In addition, Mr. Healy noted that in the Department of State's coastal fish and wildlife rating form, DOS recognized that there were colonies of gulls already residing on these islands. TR 1190. See, Issues Conference Exhibit 53. However, Dr. Cantelmo's point was that these matters were not thoroughly examined and that without a further analysis of the effect of the project on the bird populations, it was not possible to make a reasoned opinion of what the impacts would be. TR 1191-92.

Parts 360 and 661 Requirements

As stated by NYLPI, 6 NYCRR § 360-1.7(a)(2)(iv) provides that new solid waste management facilities are not permitted in the boundary of a regulated wetland. The variance provision from this restriction requires that the applicant demonstrate that the prohibition would pose an unreasonable economic, technological or safety burden, that the activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the ECL and other portions of Part 360. 6 NYCRR § 360-1.7(c)(2). In granting the variance, the Department is obligated to set forth conditions that are protective of public health, safety, and the environment. 6 NYCRR § 360-1.7(c)(3).

Pursuant to 6 NYCRR § 661.5, dredging, as proposed by AMR, is a presumptively incompatible use in a littoral zone. Moreover, the project does not meet the setback requirements set forth in 6 NYCRR § 661.6(a)(7). Section 661.9 sets forth the standards for issuance of permits under the Tidal Wetlands Law and requires that the activity is compatible with preservation and protection of tidal wetlands, is compatible with the public health and welfare, is reasonable and necessary, and complies with the use and development restrictions in §§ 661.5 and 661.6. Because this project could not comply with these restrictions, the applicant is proposing that a variance be issued to it pursuant to 6 NYCRR § 661.11. This section of the regulations allows the Department to waive the strict application of the regulations in a manner that their intent is preserved - public health and safety is secured and wetland functions are not unduly adversely affected.

Ruling

This project, by its nature, is marine-based and therefore requires dredging and other work be performed in the littoral zone and adjacent to it. Presuming that the applicant obtained a permit and implemented this project - solid waste that would be transported by truck would now be transported by barge and rail. This is a result that all parties agree would be beneficial to the public. However, the project would result in the loss of 1.4 acres of littoral zone at this location and replacement with a deep water habitat. In addition, there will be short term release of contaminants in the sediments to the water column. These effects would be mitigated by the use of the methods set forth in the draft permit. The applicant has produced the Sanborn maps for this area which show that the area of the site has been disturbed historically by various industrial uses. See, EAS, Appendix P, Issues Conference Exhibit 6. For specific evidence of sediment quality, the applicant relied upon studies that had been performed in the early '90's. These were done by Battelle Ocean Sciences in 1992 and NOAA in 1995. The results revealed that the sediments in the area of Hunts Point were contaminated with metals and polycyclic aromatic compounds (PAH) compounds. See, EAS, Appendix J, K-3, Tables 1 and 2.

In August 1997, the first site sampling program was conducted revealing concentrations of mercury, copper, lead in the composite surficial samples taken as well as PAH's. Two surficial samples collected had low organic content. A second round of core sampling performed in November 1997 revealed sediments to be homogenous black fine-grained material with little evidence of organic material and containing PCB's, pesticides, and metals. EAS, Appendix K, pp. K-4-5. The top and bottom halves of these cores were examined.

The staff's marine expert, Mr. Zahn, agreed at the issues conference that the sampling conducted was not sufficient to establish the existence of the benthic macroinvertebrate community at the site. While the evidence of the homogenous nature of the cores extracted indicates that the presence of contaminants in one strata would likely affect the others, Dr. Cantelmo made a reasonable argument that further investigation needed to be done at the site to determine the extent of the biological community. While the applicant noted in the EAS that the area could potentially support shorebird habitat, the lack of a benthic macroinvertebrate community based upon a one-day visual observation appears to have been a basis to determine that the area had been too degraded to be of much biological use. EAS, K-6. And, despite these observations, the applicant also notes in the EAS that the littoral zone could support a variety of marine macroinvertebrates as well as the species that feed on them - both fish and birds. EAS, K-6-7. The anecdotal accounts of fishermen in the area including the reports made to Dr. Cantelmo would indicate a greater fishery than the applicant took into account. EAS, K-8.

While the measures that DEC proposes to use to mitigate the effects of dredging appear quite reasonable to minimize dispersal of sediment, I find that there is insufficient data to find that this littoral zone is so degraded that it does not support a biological community and thus, is not worthy of any protection. Particularly in light of the proximity of the North Brother Island bird rookery, it is imperative that further study be done to determine whether this area is used to support that population as well as the fish community. Information in the EAS on the fish population is also dependent upon old studies that do not necessarily reflect the improvement in water quality in the East River. In order for the Department to reasonably determine whether variances should be issued pursuant to Parts 360 and 661 for this project as well as to comply with SEQRA, it is important that a better assessment of the habitat be made.

The Tidal Wetlands Act requires that among other things the applicant has the burden in showing that granting a variance will not have an undue impact on the resource. See, e.g., Gazza v. DEC, 89 NY2d 603, 609 (1997). With respect to the regulation's requirement that the applicant demonstrate practical difficulties in order to obtain a variance, the applicant here has demonstrated that its project requires access to the East River and thus, disturbance to the littoral zone. 6 NYCRR § 661.11. In addition, this project potentially could have significant public benefits. Id. However, without a thorough understanding of the resource that is being disturbed, the applicant cannot meet its burden to obtain a variance.

Based upon the discussion at the issues conference, NYLPI did not provide sufficient information to support its theory that possibly, the barges would attract gulls which could disrupt the colonial shorebird population on North and South Brother Islands. The barges are to be covered at the MTS's and as noted by the applicant, gulls already do reside in these areas. Moreover, as Dr. Cantelmo indicated, he is not an ornithologist with expertise as to such effects.

Accordingly, I recommend that in the EIS prepared for this project there be a current analysis performed of the biological community available at the site utilizing the appropriate methods. In the event that an EIS is not prepared, I find that there is an adjudicable issue concerning the nature of the benthic macroinvertebrates that exist at the site and how, if at all, that community supports other organisms.

Compliance with Coastal Management Program/State Waterfront Revitalization and Coastal Resources Act, Executive Law, Article 42

As noted above at p.16, NYLPI argued in its petition and at the issues conference that the Department and applicant failed to complete a coastal assessment form(CAF) required by the State Waterfront Revitalization and Coastal Resources Act. NYLPI submitted a copy of a blank form that became Issues Conference Exhibit 57. The form itself notes that it should be completed by state agencies for projects subject to Part 600 of Title 19 of NYCRR and should be used in making the determination of significance pursuant to SEQRA. Particularly, NYLPI raised concerns about the failure to acknowledge in this form the project's location in relationship to the Brother Islands and its impacts on other coastal resources. TR 1188-89. The applicant responded by noting that it had completed a federal CAF that provided the information necessary for the New York Department of State and the Department of City Planning to make their assessments that the project was consistent with the local waterfront revitalization program. TR 1194-1195. The federal CAF was completed by the applicant and includes statements relative to the project's adherence to the policies set forth in both the state and local water revitalization programs. EAS, Appendix G.

As noted above, on pp. 14-15, the Department of State acknowledged the location of the project vis-a-vis the Islands but determined that it would not affect the upland resources of these islands. In addition, the Department of State found the project consistent with other goals of the local water revitalization program such as facilitating the siting of water-dependent uses on coastal waters (NYC policy #2); improvement, repair/replacement of waterfront structures (NYC policy A); protection of fish and natural resources (NYC policies #7 & #8); dredging so as not to significantly interfere with coastal processes (NYC policy #15); protection of wetlands (policy #44). Issues Conference Ex. 58, pp. 1-5 of NYS Coastal Management Program Record of Consistency Review Decision dated May 28, 1998. While the staff stated that they would try to find the CAF, it seems that there was confusion about whether the issues conference participants were referring to the state or federal forms. TR 1192-1196. Since the staff has not provided me with a copy of the State CAF, I am assuming that none was prepared and instead, the agencies relied upon the federal CAF which is Appendix G of the EAS. Issues Conference Ex. 6.

Ruling

The federal CAF submitted by the applicant is fairly cursory in its responses to the various policies set forth. Particularly, with respect to policy 7 of the Department of State's program regarding significant coastal fish and wildlife habitats, the applicant notes that there are none in or in close proximity to the project site. The Brother Islands are one-quarter mile from the project site which is fairly nearby. Thus, it would have seemed appropriate to mention this resource. With respect to policy 44 that concerns protection of wetlands, the applicant emphasizes the lack of productivity and benthic organisms at the site. However, as noted in my earlier discussion regarding the investigation done by the applicant, I found it inadequate to make these findings. In addition, the observation on the rating form (Issues Conference Ex. 53) that disturbance of feeding areas could adversely affect the residents of these islands and the lack of information about the use of the site for such use by wildlife behoove further examination.

The purpose of the Act and the coastal management program is to ensure that proposed actions are consistent with the coastal policies established by the Act and the local programs. See, DEC's The Uniform Procedures Permit Management System and The Coastal Management Program, July 1992 (coastal zone guidance). This guidance as well as 6 NYCRR § 621.3(a)(8) provide that if a project is located in a coastal area, information must be provided by the applicant so that staff may complete a CAF prior to making a SEQR determination of significance. While the negative declaration addresses the project's compliance with the New York City Waterfront Local Revitalization Program and the State's Coastal Management Program, it does not specifically refer to either a State or Federal CAF. Rather it refers to the Department of City Planning's Plan for the Bronx Waterfront as encouraging the location of intermodal centers in the South Bronx due to the proximity to water and rail. See, Negative Declaration, pp. 10-11, Issues Conference Ex. 7.

Both the Department of State and the Department of City Planning did address the project's compliance with the State and City programs. These assessments dated May 27, 1998 and May 15, 1998, respectively, were done prior to the negative declaration dated December 20, 1999. However, DEC staff did not complete a CAF prior to the preparation of the negative declaration and the Department of State's review was triggered by the applicant's request for review of its federal CAF. See, Issues Conference Ex. 58. The steps set forth in the guidance described above entail DEC staff sending the CAF to the Department of State and to the local government to ascertain consistency when a negative declaration is issued for the project. Here the applicant sent a federal CAF to these agencies who used it to make their determinations.

It may seem that the staff's failure to complete the CAF is not fatal with respect to its compliance with the State's Coastal Zone Program given the similarity of the federal and state forms and the fact that the relevant agencies did have an opportunity to review and comment on the project in light of the coastal zone policies.⁽¹³⁾ In Applications of Xanadu Properties Associates, 1990 WL 263916, the Commissioner also found fault with the failure of staff to prepare a CAF but noted that there had been a federal CAF prepared (containing "virtually the same information" required by the state form) which had been withdrawn making DEC's determination based upon that information impossible. In Xanadu, Commissioner Jorling stressed that while DEC must exercise independent judgment, it can rely upon the Department of State in an advisory role with respect to coastal assessments. Yet, where the federal CAF had been withdrawn from the Department of State, it could not look to that agency for assistance. In review of the AMR application, staff appears not to have examined these issues sufficiently despite the Department of State's review of the information provided by the applicant.

Accordingly, I direct the staff to complete a CAF while it is reviewing and revising its negative declaration in accordance with this ruling and 6 NYCRR 624.4(c)(6)(i)(a). See, e.g., Application of Accurate Asbestos, ALJ Ruling (February 2, 1995), p. 4, Interim Decision of Commissioner upheld ALJ's rulings in full (March 27, 1995) (negative declaration related to solid waste management facility permit application remanded to staff for review and revision with respect to coastal assessment issues where CAF was not prepared).

Rail Reliability

While no party to these proceedings disputes the clear advantage of shipment of waste via rail as opposed to truck, agreement quickly fades when the participants discuss their positions on the viability of this strategy as part of AMR's project. Obviously, a critical part of this application is the ability of the rail to provide service that allows the waste that is delivered to AMR by barge to leave the facility within the time periods allowed by the permit so that it can be interred at its final destination. NYLPI, NEJA, and Congressman Serrano raised concerns about the ability of the rail to provide such service so that the use of trucks would not become the normal operation of the facility and/or waste would not sit for days on the tracks. Issues Conference Ex. 9d, NYLPI Pet., pp. 21, 48-53; Exhibit. 9e, NEJA Pet., pp. 9-10, 20-21; Exhibit 9c, Congressman Serrano Pet., pp. 11-12, 20. CSX Transportation also submitted a petition requesting amicus status in support of AMR's application. Issues Conference Exhibit 9f.

There is not much in the application regarding the rail operations beyond descriptions of the facilities that AMR will provide on its site. There is a letter from NYS DOT that provides general assurances on the project's rail viability. See, Part 360 Application, Appendix G-5. And, two documents were submitted into the issues conference record - the verified statement of Donald N. Nelson, President of Metro-North Commuter Railroad Company dated October 15, 1997 and Freight Synthesis, a report by the Department of City Planning Transportation Division dated October 1999 - both of which generally support the increased use of rail in the metropolitan area and provide general assurances that capacity is available. See, Issues Conference Exhibits 32 and 50.

At the March 14^th session of the issues conference, Matthew D'Arrigo of the Hunts Point Market spoke regarding, among other things, his concerns about added traffic on the rail line due to the current problems of delay that the market experiences in rail service. TR 695-701. The executive administrator of the Hunts Point Terminal Cooperative Market, Ms. Myra Gordon, spoke at the issues conference on April 4 regarding concerns with respect to the reliability of the service to the Market and the potential for odors and vermin affecting the produce. TR 887-898.

Ms. Lowe had also made inquiry regarding the potential for interference with the intermodal transfer station at Oak Point and Barry Avenue that Republic currently runs pursuant to a permit that was issued to Waste Management by NYCDOS in August 1997. TR 1477-1480. At this facility that is located within the Oak Point Yard, Republic delivers intermodal cars containing waste via truck to train cars. TR 1477. The permit allows Republic to store up to 14,100 cubic yards of waste here. TR 1478; Issues Conference Exhibit 72.

In response, on March 14 and April 4, on behalf of CSX, Marc Popovich and Lee Fulton provided explanations of how the rail functions. TR 702-790, 840-909. As part of this description, Mr. Popovich explained the distinction between merchandise and unit trains. Merchandise trains are made up of cars from all kinds of shippers that are going to many different destinations. Because these need to be separated out in order to get them to the correct destination, they go to classification yards where that work is done. Accordingly, these trains average much lengthier journeys than unit trains that are comprised of a minimum number of shippers and destinations. TR 707-708. Large shippers, like AMR, can contract with CSX for this dedicated type of service and AMR has provided that this will be the service it will require from the railroad. TR 708; 717, 763-766, 789-790,843, AMR's draft permit condition no. 6, Issues Conference Ex. 36. Ms. Fulton reiterated that the merchandise service was different from unit train service. TR 900. In addition, for similar reasons, Ms. Fulton stated that she did not think that the AMR service would have any effect on the Market's service. TR 901.

Mr. Popovich also noted the window of operation from 11 p.m. to 6 a.m. that exists from Oak Point to Poughkeepsie (there is no crossing over the Hudson in the metropolitan area, therefore, trains must go north to Selkirk first to go south) because the trains travel over the MetroNorth commuter tracks. TR 720. To maximize this use, empty cars must come in, get loaded in the evening and go out again that same night. TR 721. Currently, there is a train that leaves the Oak Point railyard where it picks up Republic trash cars and then goes to the Harlem River yards where it picks up the trash cars of Waste Management and then travels up to Selkirk where it unites with other trash cars coming from Boston - the K 276. TR 723, 760. More cars are picked up in Manville and then the train heads to Virginia. At that point some of the cars are separated that are going to landfills in Virginia, the rest continue on to Florence, South Carolina where a shortline railroad takes the remaining cars to the unloading facility. TR 724. Mr. Popovich stated that this trip takes 3 days; however, Ms. Fulton indicated it is five days. TR 725, 783. If AMR had its own unit train, Ms. Fulton stated that the trip would take seven days round trip. TR 787.

With respect to the AMR operation, Mr. Popovich projected that the scheduled train would run six days a week and if there were fewer cars than needed, the train would wait until the next day for sufficient volume to leave. TR 744-745. It was unclear whether the train that already makes the run with the WMI and Republic waste would just add on AMR's cars or whether AMR would have a separate dedicated train. TR 767, 773-774. Mr. Popovich stated that over the last 10 years, CSX had only one outage that exceeded 48 hours. TR 749. During the last two years, there were three incidents that caused line blockages of 23-48 hours that were caused by weather-related causes. TR 750. During the last 10 years, there were delays of 12-24 hours on five occasions caused by "rail specific incidents." TR 750.

Ms. Fulton provided more specific plans by explaining the process by which CSX would get the full AMR cars - in three groups of 20 at 11 a.m., 4 p.m. and 8 p.m. TR 875. The cars would be moved into the CSX railyard. TR 876-878. After the trains were assembled and the appropriate pre-departure steps taken, the train would depart to Selkirk. TR 878. In providing a picture of CSX's operations in the region and specifically in the Oak Point railyard, Ms. Fulton used several graphics that were made part of the issues conference record. See, Issues Conference Exs. 37-41.

In contrast to the pages of transcript that the discussion on rail took at the issues conference, there are few pages in AMR's Part 360 application that address these matters. The engineering report describes the accessibility of the site to the CSX railyard and the plans to construct rail spurs for the train cars on site. Engineering Report 2-24-25, Issues Conference Ex. 5. In the engineering report, the applicant provides that solid waste will be moved out on "unit trains" at least five days per week. Engineering Report, pp. 2-25. While confirming that waste will leave the facility within 48 hours, there is no assertion of when waste would leave the rail yard. AMR states that it will construct its own railyard that will be capable of storing up to 85 rail cars. Id. Because the train will be dedicated to AMR's service, the applicant emphasizes here that the cars will not have to go to the Oak Point classification yard. There is a description in this section of the report of the railroad's process to pick up the AMR cars to assemble the unit train. Eng. Rep. 2-26. But as noted at the issues conference, this description is at variance from what CSX now proposes to do. Rather than assemble the train at one time and have it backed up along the Bronx River, CSX now proposes to take the cars in 3 segments and assemble them in the Oak Point yard. This section of the application also notes that CSX has committed to provide the applicant with additional 7200 linear feet of track length. Eng. Rep. 2-26. On page 2-27, the applicant briefly discusses the various routes that could be available to the train. However, at the issues conference, the CSX representatives only addressed the Selkirk route.

In Part II of the Part 360 application - the Operation and Maintenance Plan (O & M) - the applicant describes the layout of the railyard and how it will accommodate the rail cars and the gantry crane operations. O & M 2-9-10, Issues Conference Ex. 5. This section further describes that this area will hold 87-foot long standard flat cars and that each car can hold 100 tons of gross weight. Each car will hold two containers and AMR anticipates that each container will hold 80 tons, thus requiring 65 cars to transport 5,200 tons of waste. AMR explains that the 7,200 extra feet of track that CSX will dedicate to AMR's use will be for storage of a spare set of empty rail cars. O & M 2-10. In Part III of the Part 360 application - the Contingency Plan - AMR reiterates its intention to assemble a dedicated "unit train." Contingency Plan 3-4, Issues Conference Ex. 5. Here too, the applicant explains that it will have a fleet of 585 rail cars and 1,170 containers to ensure there is sufficient equipment available to move waste if there is a problem with rail scheduling or maintenance of equipment. Id.

While these segments of the application appear to adequately describe AMR's facilities for assembly of the rail component of the operation, there is far less in the application regarding the involvement of CSX. There is a letter dated August 2, 1999 from Ms. Fulton who is manager of CSX Transportation's Market Development stating that "[w]ith the June 1, 1999 Conrail acquisition, CSXT is, more than ever, positioned to secure reliable rail service for American Marine Rail and the City of New York." In addition, Ms. Fulton confirms that this service would be a "dedicated rail service designed for the unique, time sensitive needs of American Marine Rail and the City of New York." Part 360 Application, Appendix G-3, Issues Conference Ex. 5. Finally, there is a memorandum from P.G. King of the Department of Transportation to P. Gallay of DEC dated September 15, 1999, stating that State DOT staff have reviewed the AMR proposal and found that "there is more than enough excess capacity on the Oak Point Link Running Track, the Metro-North Railroad Hudson Line and the CSXT Hudson Line for the proposed one northbound and one southbound unit train each day. There will be no adverse effect on existing or proposed passenger or freight service." The letter concludes by noting that certain infrastructure improvements would have to be made at the Oak Point railyard as traffic increases in this area. Appendix, G-5.

Ruling

The applicant, the City and CSX have pointed out that jurisdiction over the rail rests with the Surface Transportation Board (STB). TR 1482-1483 However, this limitation makes it even more important that prior to issuing any permit for this facility, the Department must be reasonably sure that the rail component will meet the needs of the project. Although SEQRA does not change the jurisdiction of any agency(6 NYCRR § 617.3[b]), it does require that the lead agency analyze impacts regardless of whether other agencies have primary responsibility for those concerns. See, Golten Marine, Inc. v. NYSDEC, 193 AD2d 742 (2d Dep't 1993). While apparently the Department staff was comfortable with the letter from NYSDOT that expressed satisfaction with AMR's plan, I find that this conclusion without further information set forth in the application regarding the rail component is deficient.

It was clear from the hours spent at the issues conference when CSX representatives described the basic details of the rail component that the application was bereft of this information to analyze. In addition, the concerns that were raised repeatedly by representatives of the Hunts Point Market and others as to alleged delays and failures of the rail system need to be addressed. Draft permit conditions proposed by Environmental Defense (and others it would seem including the staff and the applicant) have been rejected by CSX in a letter dated July 17, 2000.⁽¹⁴⁾ See, Issues Conference Ex.102b. While the draft permit conditions suggested by ED and others are only proposals at this stage, the reaction of the railroad does provide additional reasons to do more work on the rail component of this project. For example, at the issues conference there was some discussion of the ability of regulatory personnel to monitor odors or other problems that might come from the rail cars containing waste. Staff assumed that there would be access; yet, the July 17 letter appears contrary to such presumption. TR 1492-1493. While the staff's draft permit requires the production of the contract AMR signs with CSX, the railroad objects to such requirement or at least the provision of such contract to the public. This is not only contrary to the staff's position but that of the applicant as well. TR 1484, 1494. And in response to ED's proposal (and apparently that of AMR's as well - see, condition no. 6 of AMR's proposed permit conditions dated March 30, 2000, Issues Conference Ex. 36), CSX objects to the submission of a joint transportation plan for approval. I am confident that these matters may be properly resolved to satisfy many of the concerns of the parties but this cannot be accomplished without further detail in the record and further examination by the Department of these issues.

This in no way is a signal to DEC staff or other parties that the Department would be responsible for overseeing the rail's procedures. Rather, the application needs to be supplemented so that it includes more detail on this component so that the staff can make a more thorough assessment (along with NYSDOT) of the availability of reliable rail service.

Thus, I recommend that the EIS address this component. In the event that staff does not redetermine to require an EIS, I direct that the application be supplemented to provide sufficient information on the rail component of this operation.⁽¹⁵⁾ In the event that no EIS is prepared, the issues conference participants will be provided with an additional opportunity to examine the supplemented application with respect to this aspect and to present opinions on its adequacy. However, at this time, I do not find that the petitioners have made an adequate showing of what proof they would submit at an evidentiary hearing. Congressman Serrano has not offered any witnesses but rather represented in his petition that proof would be provided through statements and publicly available documents and testimony of witnesses at meetings with staff. This is not specific enough to establish that this petitioner would present a case on this matter. NEJA offers the testimony of Omar Freilla to speak about meetings he attended where CSX and DOT personnel spoke about rail service. I cannot find that such second hand testimony would be sufficient to establish the fact that the rail service is deficient without further corroboration. NEJA and NYLPI offer the testimony of a rail expert, Mr. Richard Whitehead, however, there was no demonstration either in the petitions or at the issues conference as to exactly what this expert would testify.⁽¹⁶⁾ Accordingly, though I agree with these petitioners insofar as finding that the application is deficient with respect to the rail element, I can't find an adjudicable issue at this time on the rail component. The missing information should be included in the EIS. If an EIS is not prepared, the applicant will have to supplement the application and at that later time I will reassess whether there is a need for a hearing.

Operations/Contingency Plan

While all the petitioners raised concerns regarding AMR's ability to maintain its facility as strictly barge-to-rail and avoid the frequent contingent use of trucks, NEJA also characterized the project as containing design flaws that would result in day-to-day operational problems. See, NEJA Pet. pp. 23-27; TR 657 - 689, 990-1111, 1255-1315, 1406-1460, 1583-1663. In support of this position, NEJA presented Jefferson Akins, an engineer who appeared at the issues conference on April 4 and 5, 2000.

Sizing of Equipment/Ability to Perform Work Within Stated Hours

Excavators

Mr. Akins took issue with the selection of the excavator shown in Appendix E-1 of the permit application based upon his determination that in order for this equipment to function as planned, it must have adequate space on the platform of the facility.⁽¹⁷⁾ TR 659-662, 1027. Mr. Akins also disputed whether the excavator had a sufficiently long arm to reach inside all of the barge area. TR 997-1003. Mr. Akins also stated that because of the relative heights of the arm and the cab, the cab operator will not have a good view of the hoppers where the waste is to be delivered. TR 1004-1005. On April 5, Mr. Akins reiterated concerns about space on the platform for the movement of the arm of the excavator in view of the presence of recycling bins and bins for unacceptable waste. TR 1257-1258, 1261. Mr. Ryan, the engineer representing AMR at the issues conference, pointed out that the picture referred to by Ms. Lowe showed the outer reach of the excavator and noted that this equipment could reach all of the areas on the barge and that the area where the waste is placed on the barge is smaller width wise than the barge itself. Apparently, the structures that Mr. Akins noted were the combing and latching of the barge which do not contain the waste. TR 663-665.

In addition, on April 4, in response to these same concerns, Mr. Ryan added that the materials in the application did not reflect final design. TR 1014. He noted that AMR would use a material handler with "a 60 foot stick." TR 1014. In response to AMR's request, Pierce Pacific, the vendor, provided a picture of this equipment and Mr. Ryan stated that it will reach all areas of the barge. TR 1015; Issues Conference Ex. 49. Mr. Ryan explained how this equipment operates and reported that the arm worked in a manner that allowed it to touch the treads of the excavator and the excavator could sit on the very edge of the bulkhead and reach the contents of the barges. TR 1015-1017. Mr. Ryan noted that even if the arm could not reach an area of a barge that was right up against the bulkhead, it could move to the side and then reach. TR 1016.

In response to whether the excavator had room to navigate based upon the proximity of the hoppers, Mr. Ryan noted that the drawings (Appendix A-6) do indicate that there is adequate clearance. TR 1017. In the event hazardous or non-complying waste is found and needs to be removed, Mr. Ryan explained that the excavator could move out of the way for this operation. TR 1018. As for the ability of the operator to view the hoppers, Mr. Ryan stated that the windows are positioned so that the height of the operator's eye would actually be about 18 feet. Mr. Ryan stated that the operators will be able to see the hoppers but he has even witnessed an operation where the operator operates blind and had been doing it successfully for 2 months. TR 1019. He also noted that the spacing of the hoppers was such that if waste did not make it into one container it would go into the one next to it. TR 1020.

With respect to the design of the excavator's clamshell, NEJA also raised a concern regarding the ability of AMR to process 5200 tons in the time frame that is noted in the application. TR 665. Specifically, Mr. Akins challenged these calculations based upon the density of the waste and the ability of the excavator to grab a certain tonnage in a certain amount of time. Mr. Akins concluded that each grab will take less material causing the operation to take more time. And, Mr. Akins posited that AMR's calculations did not allow sufficient time for the other operations of the facility such as the barge shifting, cleaning and removal of the platform skirts, removal of barge covers, inspection of the water for floatables, opening the bay doors and any allowance for breakdowns or other occurrences. TR 668. See also, TR 993-997 (these transcript pages reflect the statements made by Mr. Akins directly on this same issue).

In response, Mr. Ryan referred to the mass balance and flow schematic diagram that is drawing no. 3 in Appendix A to the Part 360 application. He explained that the mathematical calculation set forth in that diagram was simply that and does not reflect the design of the facility. TR 672. Mr. Ryan stated that the formula was a mass balance calculation that was based upon the conveyor's flow time but it was not a design basis for any single piece of equipment. TR 1023.

With respect to the amount of time it takes for the excavator to make its grab, Mr. Ryan estimated, based upon the experience at Fresh Kills landfill, that it would average 7.5 seconds rather than 50 seconds per swing. TR 673. Based upon even a doubling of this time, a barge would take 40 minutes to unload. TR 673. This figure does not include the amount of time it takes to move barges to do cleanup and other maintenance items resulting in a 2-3 hour period total. TR 681,684-688.

Mr. Ryan went on to explain that each excavator feeds two compactors that can each process a maximum of 120 tons per hour resulting in about 2600 tons per day. TR 677. He maintained that one excavator could unload all the barges in a 14-hour day and that there was therefore 100 percent backup. TR 1022. He reiterated that because the compactors process at slower rates, the flow is set at 14 hours. TR 1023.

With respect to the waste density, Mr. Ryan explained that the waste as it sits on the barge is about 600-700 pounds per cubic yard because it is compacted by the weight of 25 feet of waste. When it goes into the conveyer, it has been dropped onto the hopper floor and "fluffed" thus reducing the density. TR 674-675. He added that the figure of 385 pounds per cubic yard was put into the application to demonstrate that the compactor could process light waste but he expected that the waste would be 500-600 pounds per cubic yard. TR 675.

Mr. Ryan referred to the drawings of the clamshell bucket in Appendix E of the Part 360 application in which it is shown that the mouth of the clamshell forms a straight line. This clamshell will drop into the waste and is able to grab an amount twice its volume according to Mr. Ryan. TR 676. The numbers in the diagram (Appendix A-3) are an average of the amounts of what each grab will consist. TR 1009-1010. He reiterated that the clamshell of eight cubic yards will grab between 10-12 cubic yards as the equipment at Fresh Kills using a 10 cubic yard bucket grabs 13-15 yards. TR 1010. The manner in which this is achieved is called "densification" and is through the use of hydraulic pistons that are put on the clamshell and compact the material further. TR 1011. With respect to Mr. Akins' comments on the heterogeneous character of the waste, Mr. Ryan explained that at various times in the operation, the clamshell won't be making full grabs but that was already calculated into the design. TR 1013.

Mr. Ryan responded to Mr. Akins' comments on the use of the clamshell bucket on the excavator by stating that either a grapple or clamshell could be used. TR 1009. However, the clamshell was picked for the AMR facility because it had been used successfully at Fresh Kills landfill for 10 years and because the clamshell would be able to empty the barges because of the flat surface of this equipment that would meet the flat surface of the barge at the end of the unloading process. TR 1009.

Flow of Operation

Mr. Ryan did state that the exact breakdown for the periods that each operation takes is not provided in the application but this information can be produced if needed. TR 683. Mr. Ryan went over the activities that would occur as a barge comes into the facility. He described that the barge is brought into the facility and the cover is removed and then the load is prepared. This preparation consists of leveling off peaks and pushing back waste that is on the unloading platform to prevent spillage into the water. The next period of time is spent by the excavator removing waste from the barge and bringing it to the conveyor system that leads to the compactors. Once the barge is almost unloaded, the excavator will push the remaining waste into piles at the bottom of the barge and load it into the conveyer system. Next, the cover is placed back on the barge, the doors are opened and the barge would be moved to the south end of the building. The barge that is next to the unloading position is moved laterally into the unloading position and the process is ready to begin again. Ms. Lowe reminded Mr. Ryan that there were 2 more additional steps - cleaning the skirts and checking the area where the barge had been while being unloaded for floatables. TR 685-687.

Intermodal Containers

Concerning the intermodal containers that the applicant has selected, Mr. Akins questioned the ability of this system to remain free from leaks. As discussed on pp. 62-63 of this ruling, AMR has selected containers designed and manufactured by Accurate Industries that are made of steel and have only one door. The containers have no open welds; although, due to the vacuum that is created there is a sealed vent in order to allow the waste to be emptied at the landfill. Mr. Stotz of Accurate Industries described how the containers have been tested for water tightness and in conformity with American Railroad Association requirements and how they are used on a daily situation in waste applications with no leakage. TR 1038-1054, 1061; Issues Conference Ex. 47.

Waste Spillage

Mr. Akins also questioned the ability of AMR to place an unbaled block of waste into the containers without waste spillage and consequential tracking of leachate by the yard hostlers. TR 1062-1063. Mr. Ryan responded by explaining that the waste will have clearance all around it in the container and will not fall out of the container. And, the removal of the container from the compactor to the yard hostler is only a rolling forward not a "jerking" process. And, Mr. Ryan further explained that the ramp that pushes the waste from the compactor into the container goes in a distance of 6 feet and then retracts before the container is released. TR 1064. In addition, because the waste will be compacted inside the building, there should be no free liquid coming out the end of the tailgate. Mr. Ryan explained also that the containers and compactors are designed to fit together thus further reducing the possibility of spillage of waste or liquid. TR 1065.

Yard Hostlers and Gantry Cranes

The next area of NYLPI's concern is the ability of the yard hostler to pick up a container and drive down an alleyway to where the gantry crane is located and the ability of the gantry crane to pick up the container and then put an empty container on the hostler and then make it back over the railroad tracks to the AMR facility where it will get ready to receive another container. Mr. Akins stated that the traffic pattern would not work and stated that he was sure that the hostlers were not intended to cross railroad tracks. TR 1066-1067, 1070; Engineering Report Appendices A-3, 4, Part 360 Application, Issues Conference Ex. 5. In examining the dimensions of the gantry cranes, Mr. Akins found that these could not lift the intermodal containers over another container without bumping it. TR 1069. He also stated that these cranes could not move on curved roads and therefore when a gantry crane was at the end of a row, it would have difficulty meeting the time constraints, negotiating the roads and running over yard lines. TR 1072-1073. Mr. Akins also determined that the yard could not fit more than 65 rail cars. TR 1074.

Mr. Ryan said that the height to the "twist locks" of 23 feet and six inches on the gantry cranes are sufficient to lift the container over another container. TR 1089. With respect to the areas where the gantry cranes will travel, these, he said, are indicated as paved area on the referenced drawing and thus, are navigable by this rubber-tired equipment. Id. Mr. Ryan also maintained that the gantry cranes can be operated on a curved surface. He agreed that there were areas on the drawing that indicated extra cars for contingency circumstances (with dashed lines) and those roads are too small for the gantry crane to operate. In such contingency circumstances, the yard engine would be used to shuttle cars so that the yard could be used fully. TR 1090.

Mr. Ryan maintained that Mr. Akins' description of the speed the yard hostlers would have to travel was misleading because there were 2 of these and they operate on 7.5 minute cycles each. TR 1091-1093.

Leachate

The next topic that Mr. Akins discussed at the issues conference was the matter of leachate which he found was not sufficiently addressed in the application. TR 1075-1080, 1097-1101. Mr. Akins states that the 50,000 gallon tank dedicated to collect leachate is not sized nor is its construction stated which pursuant to Part 360-6 must be dual-walled and monitorable. He remarked that the bilge water in each barge would likely amount to more than 25,000 gallons per day which is the threshold that DEC has set for industrial pretreatment. TR 1075-1076. And, Mr. Akins was critical of the lack of documentation to support the handling of this material by the sewage treatment plant that will be taking it. TR 1077-1079. And, Mr. Akins also maintained that the barge skirts are not sufficiently designed to prevent leachate from dripping off into the East River as the waste comes off the barge because there is no seal between the skirt and the unloading platform. TR 1104.

With respect to leachate management, Mr. Ryan replied that AMR met with the City's engineer and reviewed the process that the City uses to review applications for discharge into City sewage treatment plants. According to Mr. Ryan, the City waits for the State to issue Part 360 permits prior to full review of this discharge. TR 1081. Mr. Healy stressed that there had been communication among DEC, DEP, and NYCDOS on this matter. However, Mr. Ryan disagreed with Mr. Akin's characterization of bilge water as leachate by distinguishing water that has had only short term contact with waste. TR 1084-1088. Mr. Ryan maintained that Mr. Akins was confusing the leachate concept at landfills where precipitation that seeps into the landfill creates leachate after a great deal of time which is then captured and pumped. Mr. Ryan stated that due to the covers on the barges (except in a storm event), the liquid associated with this waste will be from the waste itself, from water used as dust control, and from sea water that splashes up. The liquids on the barge from these sources would be pumped prior to unloading into a waste collection system that includes an oil separator and then sent through the City's sanitary sewer system. Mr. Ryan stated that other waste water will be sent through this system such as that from the scrubber system, from washing the floors and from compaction of the waste. TR 1086-1087; Engineering Report, 2-28-29, Operations and Maintenance Plan, 2-7, Appendix 6A; Environmental Assessment, p. 9, Appendix N-3-6, Issues Conference Exs. 5 and 6.

In response to Ms. Lowe's citation of Part 360 requirements for disposal and storage of leachate, Mr. Ryan stated that the tank is not a storage tank and instead can be used for flow equalization in the event the City got a high flow condition at its treatment plant or the tank could also be used for pretreatment if necessary. TR 1093-1097. The applicant and staff maintain that this tank is not required by Part 360 but instead is part of the plan because of City requirements. Rather, the waste water would be directed usually to the oil water separator and then the City's sewer system. TR 1101. Mr. Healy argued that even if the staff and applicant were wrong about the characterization of the tank, it would be easily redesigned to meet the requirements in Part 360-6.

In response to Mr. Akins' remarks regarding the lack of a seal between the barge skirt and the unloading platform, Mr. Ryan went through the movement of the waste from the barge to the conveyers. He explained that the excavator will grip the waste in the clamshell bucket and then take it to the conveyer line. In picking up the waste, there will be time for liquid to drain off into the barge. Any additional liquid will fall onto the spill skirt that "runs the entire length of the hold" where it will drain onto the barge or the unloading platform. If it falls on the barge it will be pumped out and if it falls on the unloading platform, he explained this liquid will go into the drain lines. Mr. Ryan further stated that due to the small amount of time that the excavator will take grappling the waste to the conveyer system, quantities of this liquid will be small. In addition, the systems in place for collecting it will prevent it from going into the river.

Barge Operation/Contingency

Mr. Akins started out by presenting a scenario with one side of the platform out of service. TR 1262-1267,1274-1285. He attempted to demonstrate that based upon this circumstance, the facility would not be able to process the waste delivered by 20 barges. Mr. Akins continued to describe a contingency scenario that requires, according to his calculations, at least 55 minutes of down time in getting each barge to get into the facility in addition to the 2 hours of excavation time. Accordingly, he finds that on a day when one side is down, the facility would not accomplish this work within even 24 hours. And, he also stated that due to the placement of the dolphins, there would not be room for the barges to navigate around these readily. Mr. Akins also claimed that based upon his review of the drawings, the dock would have to be made wider to accommodate the barges, the equipment, and the personnel. TR 1276-1284. And, in a normal day of operation, Mr. Akins claimed that the facility could not operate in less than 20 hours. TR 1288-1289, 1408. NEJA's concern on this issue is that if the facility does operate longer hours just to transfer the waste, there will be little time for the maintenance aspects of the operation which were to occur in the third shift. TR 1290. NYLPI also stated that it would affect the air modeling performed which was done based upon a 14-hour period of operation. TR 1291-1292.

Counsel Healy responded by stating that if one part of the facility was inoperable, it was likely that AMR would alert the waste haulers and all the barges would not be brought that day. As he pointed out, while 5200 tons of waste is the maximum amount of waste that can be processed in one day - AMR can decide to take in less. TR 1267-1268. In addition, Mr. Ryan stated that in the Contingency Plan contained in the Part 360 application, AMR presents that it will use 20 barges although only 14 will be needed at one time. Thus, the circumstance Mr. Akins was projecting would not occur. TR 1269; Contingency Plan, Part 360 Application, p.3-2. And, the staff reminded everyone that the draft permit contains a condition that prohibits more than 10 full barges at the facility at any time (and 12 empty barges). TR 1275; Draft Permit, Special Condition No. 36, Issues Conference Ex. 8. The applicant expressed a willingness to negotiate a permit condition that would limit the number further. TR 1445.

In response to Mr. Akins' analysis, Mr. Ryan also referred to page 2-19 of the Engineering Report which states that the combined operation process is estimated to take 75 minutes. Mr. Ryan provides that this amount of time is factored into the 2-3 hours that it will take to unload the barges. TR 1293. Mr. Ryan also stated if more barges are received, it is anticipated that they will be more lightly loaded than if fewer barges are taken in. That will mean that less time will be needed to unload each barge when there is less volume on them. TR 1294. And, Mr. Ryan stated that the drawing in Appendix A-5 of the Part 360 application is meant to demonstrate how many barges the facility can accommodate and not how many the facility will hold in either a normal or contingency operation. TR 1294. He further explained that the facility was planning to maintain 20 barges in order to fulfill any needs however, they would not all be at the facility but rather - in transit, at the MTS's or at the facility. TR 1295. Typically, the facility would have 8-10 barges per day at the facility. TR 1407-1408, Appendix A-3.

In response to concerns of NEJA regarding "clumping" of barges, Mr. Ryan explained the procedures for barge towing to the facility. TR 1271. AMR plans to have one tug that will deliver and pick up four barges at a time, twice a day. A clump therefore, is defined as four barges at one time.

To demonstrate the operation's time line with respect to the barges, Mr. Ryan drew a chart. Issues Conference Ex. 60; TR 1297-1303. He pointed out in going through this description that there would be a separate crew outside that will take care of the empty barges coming out of the facility. TR 1301. Mr. Ryan stated that the reason that this time line was not included in the application was because the proposed operation will be identical to Fresh Kills and the regulatory agencies are familiar with that facility. TR 1302-1303. He maintained that this all would take less than ten hours out of a 14-hour day and that tasks such as cleanup would be included. TR 1304-1305.

An issue also came up with respect to whether while excavating one barge, the door could open to permit a barge to enter on the other side. TR 1308. Because the door is supposed to remain closed while this work is going on, NEJA and NYLPI stated that additional time would be lost. TR 1309-1310; 1609-1621. While initially Mr. Ryan appeared to remain under the impression that the door could be open while excavation was occurring, this was clarified by the staff's statements and the revision to Draft Permit Condition No. 31. See, discussion, infra at pages 53, 60-61, 62; TR 1505-1510. Staff also stated that they thought the operation could be synchronized so that significant additional time was not lost while waiting for a barge to be excavated before a door was opened. TR 1622-1624. And, at the issues conference, Mr. Ryan maintained that even if both doors had to be closed during excavation, it would only mean more hours of operation due to additional downtime. TR 1510-1511;1617-1618. In addition, he provided that simultaneous operation was feasible. TR 1636.

To further support AMR's presentation that compliance with draft permit condition no. 31 was feasible, AMR submitted an Operational Impact Assessment Regarding Draft Permit Condition 31 Interpretation dated April 28, 2000 that includes a revised description of the barge movement of the facility with an accompanying table. See, Issues Conference Ex. 79. According to this table and analysis, AMR would operate the facility for 17 hours with 10 barges. It projects that there will be no additional air emissions because as described elsewhere the additional time would be downtime for the diesel equipment. NEJA objected to this submission stating that it still underestimates the time needed for operations and further indicates that the facility will fall behind on maintenance and cleanup. Issues Conference Ex. 88, pp. 4-7.

With respect to spacing issues, Mr. Ryan stated that there was adequate clearance for the operation and that Mr. Akins' comments were more a matter of preference. TR 1446. Concerning the containers that are situated on the platform, Mr. Ryan explained that they fit underneath the excavator swing and there is at least 5 feet of clearance. TR 1446-1447. He stated that because this project is in New York City, AMR, like all facilities in that city, must operate in close quarters and do so. TR 1447-1448. As for the dolphins, Mr. Ryan stated that perhaps they will need to redesign these but there will be adequate clearance. TR 1448. At the April 6^th meeting of the issues conference, Mr. Ryan referred to Appendices A-1, 4, and 10 that show the width of the property to be 293 feet and the area of demolition slated for the site which extends beyond this area, an additional area of over 20 feet. TR 1597-1601.

The staff commented that the application had been many years in the making and that it was not expected that there would be as-built drawings at this stage but rather at the pre-construction stage. TR 1449. While staff will have to review such final plans, at this stage, they have determined, the facility is functional, reasonable, and will work. TR 1450.

Mr. Akins continued to discuss contingency difficulties with a scenario involving the breakdown of one of the excavators claiming that it would be very difficult to move one of these off the platform should this malfunction occur. He speculated that it was also possible that the spare excavator would be out of commission and therefore a fourth excavator - a second spare - is needed. TR 1415-1417. In response, Mr. Ryan pointed to similar machines that run more hours than the AMR equipment would and had been working in the Bronx for over 2 years and at Fresh Kills for 10 years with no downtime and just routine maintenance. He stated that this equipment requires "predictable and schedulable" maintenance and that Caterpillar has a major service center in the Bronx. TR 1418-1420.

Mr. Akins went on to hypothesize situations where other equipment breaks down such as a conveyer and thus, the process would have to stop while personnel got in to repair it due to space constrictions. TR 1421-1423. Mr. Ryan pointed to the four production rates noted on the mass balance and flow schematic - Appendix A-3. These rates indicate that even with 2 compactors the waste could be processed in 22 hours per day. TR 1424. He also explained that the facility would maintain a full spare set of conveyor lines so that repairs can be made swiftly. TR 1424. Repairs would be done on the third shift so waste would continue to be processed albeit at a slower rate until that time when repairs could be made without interrupting the flow. TR 1424. Overall, Mr. Ryan explained how equipment was selected and will be utilized to minimize problems and to ensure that it is more than adequate to handle the work load. TR 1442-1443.

In the event of a container or rail problem, NEJA maintained that AMR had failed to put forward an acceptable plan for the transfer of waste from the 40-foot containers to 20-foot containers that are the maximum allowed length for tractor trailers. TR 1453-1455. Mr. Akins stated that there was no place for the transfer to occur. TR 1455. The applicant provided that this was a minor supplement to the operation that would require the addition of a door. TR 1455. This supplemental plan was presented to the issues conference participants as the container reloading plan. Issues Conference Ex. 65. Mr. Ryan explained the plan as showing that the yard hostlers would return the containers to the east unloading bay where the container would be lifted by an overhead crane rail, moved back and then tipped into the hold of the barge. Then the waste would be reloaded onto the conveyor system through the compactor and into a 20-ton container. The container would then be placed on a truck and driven out. TR 1456-1457; 1586-1588. In response to this proposal, Ms. Lowe and Ms. Horwitz (of NYLPI) raised questions regarding various aspects of the mechanics of the reloading operation such as timing, dimensions of the equipment, effect on negative air pressure, transferability of the waste, release of methane gas and conflict with any full barges. TR 1588-1592. In response to AMR's submission of Exhibit 65, NEJA provided a post-issues conference brief that expresses more and similar concerns about this aspect of the operation. Issues Conference Exhibit 88. Particularly, NEJA focuses on the dimensions of the container, the barges, the tractor trailer, the door, and the operation of the crane rail and container door, concluding that this system cannot work.

Mr. Ryan responded to these latter concerns by stating that due to the lack of obstructions in the interior of these containers, the waste would slide out readily when the container is tipped 45 degrees. TR 1642. The clamshell attached to the excavator will once again pick up the waste that has been dropped on the barge floor. TR 1644. Odors will be addressed because the ventilation system will be working and although the door defined in Exhibit 65 will be open (20-30 percent of the size of a marine door), a truck will be in it and negative pressure should be maintained. There is also a misting spraying system available on the excavators to address odors. TR 1645. With respect to the on-site traffic patterns for trucks to move during these contingencies, Mr. Ryan referred to the March 23 submission to NYCDOS. TR 1648.

In the last period of the issues conference, NYLPI representative Horwitz raised concerns about statements made in the contingency plan with respect to snowfall. TR 1773-1781. In this section of the application, it is noted that snowfall might cause the diversion of City sanitation trucks for salt spreading thus causing a buildup of trash at the curb and a concomitant increase in waste delivered by barge to AMR. Contingency Plan, p. 3-13. AMR representatives agreed that the permit governed its operations and it could not deliver more than 5200 tons to the facility in any one day. TR 1779.

Department of Sanitation Input

At a certain point in the operations discussion on April 6, Deputy Commissioner Allan stated that a division within NYCDOS had evaluated AMR's proposal that the applicant had submitted to that agency in response to the City's request for proposals. This division is separate from the rest of DOS pursuant to the City's procurement rules. Ms. Allan stated however that the proposal that AMR developed was in "direct response to the department's specifications, which was very detailed . . . it is a plan that the engineers in the department were satisfied could function." Ms. Allan also referenced the DEIS that the City was at that time still to issue on the SWMP. See, Issues Conference Exhibits 100a-e. Deputy Commissioner Allan also provided that DOS had been operating garbage barges in NYC for 50 years out of the marine transfer stations (8 operating currently with one closed). She referenced an "elaborate" barge unloader system in Staten Island and stated that the system has been in operation at Fresh Kills for 50 years. Ms. Allan stated that AMR's plans used Fresh Kills as its model and that the RFP set forth the specific requirements for all the elements of this operation with which AMR complied. In response to my questions regarding the distinction between Fresh Kills and AMR based upon the latter's proposed indoor facility, Ms. Allan stated that this was not truly different because the MTS's have openings on the water side and there are no odor complaints. TR 1654-1658. NYLPI and NEJA representatives contested the comparisons based upon the volume of waste to be received at AMR and the differences in technology. TR 1658-1661. Mr. Healy pointed out similarities such as the movement of the barges, the unloading process via the use of a clamshell, the time line for unloading and the distinction of the marine doors that are meant to mitigate odors. TR 1662-1664.

As I noted at the issues conference, it would have been greatly beneficial to this process to have had the input of the technical staff of NYCDOS with respect to the operations of this facility. TR 1668-1670. While I understand the constraints of the procurement rules, it would seem that there should have been some way to introduce the observations of a DOS staff member who has had experience with Sanitation's operations to render professional opinions on AMR's proposal in this forum.

Ruling

NEJA's expert, Mr. Akins, concentrated his critique of the facility principally on the dimensions of various equipment and how they would function. He admitted that these matters "are resolvable" as "[t]hese are all mechanical things." TR 1005. Again, when speaking about the clamshell of the excavator he stated "[s]o I guess the clam shell works. I haven't seen it done before. It is a new thing to me. . . . Maybe it will work, but to me it seems like there is a problem here." TR 1008. At various times during his presentation, it was difficult to discern whether Mr. Akins was being sarcastic or whether he intended his statements to be taken at face value. In any case, it would appear that his analysis was based, as he himself admitted, on only a 2-day review of the engineering report and without the background of having been involved with a solid waste facility that used barges.

I also had difficulty in giving much credence to Mr. Akins' critique because at various points it appeared that he was merely scrambling to come up with "what ifs" to present holes in the engineering of this project without support for his suppositions. For example, with respect to the intermodal containers, the applicant had 4 people (Mr. Ryan, Mr. Gay, Mr. Stotz of Accurate Engineering and Ms. Fulton) present detailed information on the stability and tightness of these containers including testing and performance facts. Yet without any showing of how this information was incorrect, Mr. Akins expressed how doubtful he was that they would work. TR 1059. He then went on to describe a scenario, without any support, of "garbage [that] can spurt out" and proceed to pollute the East River. TR 1059-1060. The applicant's expert agreed that he could not absolutely guarantee that there might not be situations where a container could sustain a dent but I do not find that Part 360 or SEQRA require that we analyze this application in such absolutes. To do so would mean that no application would ever be approved.

It does appear that certain information that was provided - such as the 50-second period for the excavator to grab - was inaccurate and resulted in misunderstandings by some of the petitioners. In addition, as noted elsewhere in this ruling (pp.35, 60-60, 63), the misinterpretation of draft permit condition no. 31 by the applicant also resulted in a misunderstanding by the participants to the issues conference as to how long the doors to the facility would be open while a barge is coming in and getting unloaded. TR 688-689, 691-693. It will take about 12 minutes to open and close the doors according to the applicant. Issues Conference Ex. 79. Overall, AMR estimates that it will take an additional 3 hours per day to operate the facility so that the doors are closed during excavation and that the barges get emptied in both bays at the same time. Because AMR made a more detailed submission regarding these procedures subsequent to the issues conference and NEJA's comments were expressed in its closing papers, the record is left without the benefit of a response to the concerns raised by Ms. Lowe with respect to this procedure. This is also true to some degree with respect to the container reloading operation design in Exhibit 65. Thus, I am requiring the supplementation of the application with respect to these operations.

As for matters like the exact nature of how the barge skirt will be constructed, Mr. Ryan stated that these are design details that will be finalized after permit approval. Although the intervenors protest such process on the grounds that it leaves the public out of important steps, I do not agree. While it is key that the public has access to the application information that sets forth the plans required by 6 NYCRR Part 360-11, the minutiae that Mr. Akins would require appears far beyond the mandates of that Part. For example, to address the barge skirts, the application does already contain information on the general nature of this design. See, Engineering Report, 2-7. The intervenors seek greater detail but at this stage, I find the applicant's submission sufficient.

On the matter of leachate control, I do agree with NYLPI's characterization of the liquid that leaves the barge or that results from the compaction of the waste as leachate. Such definition is consistent with the 6 NYCRR § 360-1.2(b)(98): "[l]eachate means any solid waste in the form of a liquid, including any suspended components in the liquid, that results from contact with or passage through solid waste." Contrary to Mr. Ryan's analysis, there is no time requirement for contact with water contained in this definition. While much of the liquid that is discharged from the barge may be quite diluted and have little contact with the waste, there will be some including the liquid that is discharged from the clamshell as it travels to the conveyer system. In addition, the compaction of the waste will also result in the discharge of liquid that clearly would qualify as leachate.

However, I don't agree with NYLPI that Subpart 360-6 applies to this facility. As noted by the applicant, there will not be storage of leachate on a day-to-day basis and the tank that is being included in the plans is to satisfy City of New York DEP requirements. Moreover, 6 NYCRR § 360-11.1 states that transfer stations are subject to Subparts 360-11 and 360-1 only. Thus, Subpart 360-6 is inapplicable. The operational requirements contained in this subpart include 6 NYCRR § 360-11.4(f) that addresses drainage. This section provides that "drainage from cleaning areas must be discharged to sanitary sewers, authorized sanitary waste treatment facilities, or a corrosive-resistant holding tank." It also states that disposal of drainage and leachate must be in compliance with all federal and state requirements. But it would appear that the very stringent provisions in Subpart 360-6 are intended for landfills and facilities that store leachate unlike transfer stations.

On the basis of his obvious experience with this project and with similar operations at Fresh Kills, Mr. Ryan, methodically and convincingly, went through the various criticisms that were raised by Mr. Akins. I am satisfied with the explanations regarding the operations of the excavator and its "stick", as well as the clamshell, yard hostlers and gantry cranes. As noted above, the descriptions of the intermodal containers satisfied any concerns raised about their ability to serve the function intended by this operation. And, I am also satisfied with Mr. Ryan's description of the method of moving the waste so that there will be minimal spillage.

With respect to the barge movement, while certainly the direct input of NYCDOS on this aspect would have enhanced our discussion, I do not find any basis for finding adjudicable issues. The intervenors did not raise sufficient concerns indicating that there would be a major problem with this aspect of the operation. However, as noted below, the record does need supplementation in terms of the barge movement/time line. While AMR did make a responsive presentation in its submission of April 28 with respect to the time line in light of draft permit condition no. 31, there needs to be further analysis of this change due to the changes in the time left to perform the other functions at the facility as noted by NEJA.

Concerning spacing issues, overall I find that Mr. Ryan satisfactorily addressed these concerns in terms of the ability of the operation to function and to nail down very specif