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

Ruling, August 25, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application for a Solid Waste Management Facility Permit;
a Tidal Wetlands Permit; a Protection of Waters Permit;
and a Water Quality Certification pursuant to Articles 27, 25, and 15 of
the Environmental Conservation Law and Parts 360, 661, and 608 of
Title 6 of the New York Compilation of Codes, Rules and Regulations

- by -

AMERICAN MARINE RAIL, LLC

ALJ RULINGS ON ISSUES and PARTY STATUS
AND
ENVIRONMENTAL SIGNIFICANCE

DEC Project No.

2-6007-00251/00001

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 161st 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 17th 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 132nd 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 14th 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 6th 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 specific design details at the appropriate time. Similarly, it was clear that with respect to contingencies, AMR is prepared to address those circumstances by maintaining back-up equipment, having scheduled maintenance, and employing sufficient staff. However, the calculations submitted by NEJA in its closing papers, do require a response with respect to the new design submitted in Exhibit 65 of the container reloading operation.

While Mr. Akins admitted that the engineers could argue these things "to death", that is not the point of these proceedings. Rather than a theoretical exercise, these proceedings are intended to discover matters that raise sufficient doubt about the ability of the project to meet the permit conditions or environmental regulatory requirements. Thus, as in Matter of Jay Giardina, Interim Decision, September 21, 1990 and Matter of Akzo Nobel Salt, Inc., et al., Interim Decision, January 31, 1996, I find that the fact that Mr. Akins' statements are contrary to those of the applicant's expert is not sufficient to find adjudicable issues. To take the debate between these individuals to a hearing would not further this application process. Rather, I am satisfied that the application materials provide a sufficient framework with respect to the mechanical operation of this facility for most items such that it would comport with the permit and regulatory requirements.

I heard repeatedly during the issues conference from NEJA and others that the applicant was redesigning the project as we went along. I don't agree with this assessment. For the most part, the applicant answered the intervenors' inquiries with references to the application and related materials - although not to the satisfaction of the petitioners. The container reloading design was a new feature that should have been included in the original application package but I do not find it to be a major change. In addition, the clarification of the meaning of draft permit condition no. 31 gave rise to a revised time line. But this too, while in need of further consideration, is not a major changed element. The permit application process, by necessity, requires flexibility to allow for changes to a project based upon the review of the agencies and input from the public. However, every time there is a change, it does not result in a "new" project that requires the applicant to start again. See, e.g., Matter of the Application of Lafever Excavating, Inc., Interim Decision of the Commissioner, 1991 WL 302719 (October 28, 1991).

There are four items with respect to this topic that I find require supplementation and/or further attention in this record. 1) The barge movement schedule/time line that was developed by Mr. Ryan at the issues conference (Exhibit 60) although further refined in Exhibit 79 needs further description to respond to the concerns raised by NEJA in its June 12 post-issues conference comments at pages 4-7 (Issues Conference Ex. 88). While I am convinced that the barge operations are not a reinvention based upon the applicant's reliance on the Fresh Kills model, as the intervenors noted, there are distinct differences and thus, the flow of this facility must be well considered. 2) In addition, the applicant expressed a willingness to restrict the number of barges at the facility at any one time and I recommend that the staff in consultation with AMR and the City fashion a permit condition to address this concern. 3) With respect to the transloading operation, when AMR has to reverse the operation because of some failure such as an extended rail delay, there should be further detail in the record with respect to the information in Issues Conference Exhibit 65 as well as the attendant truck operation. The design questions raised by NEJA in its June 12 submission at pages 1-4 should be addressed in this supplementation. In addition, the record needs more information about when this system would be used, the timing of it, whether there would be incoming operations at such time and how these would interface, and the entry and exit areas for trucks. 4) In addition, I would agree with NYLPI and others that AMR appears to have underestimated the amount of time that it will take trucks to leave the facility to get to the New Jersey site and come back. TR 1700. This aspect needs further analysis.

It is obvious that this project is not a typical transfer station. Because of the barge-to-rail scenario, AMR must employ several mechanisms to properly convey this waste material. While to my mind, the pieces appear to be there, I can also recognize that due to this project's intricacy, there is opportunity for problems, more so than in simpler facilities. Therefore, I recommend that the staff incorporate a permit condition that provides for a phase-in of this facility. In other words, rather than have the facility handle 5200 tons of waste from its first day of operation, it would begin with perhaps a quarter or third of that amount and over a period of time - perhaps 3-6 months - increase to the permitted level. In this manner, "bugs" can be more readily identified and addressed without major problems developing.

These determinations are not meant to detract from my determination that is manifested throughout this ruling that an EIS should be prepared. Rather, it is meant to suggest a method of operation initially that will assist the applicant, regulatory agencies, and the public in ensuring that AMR, assuming it does get a permit, operates smoothly and with minimal effects to the community. In the event that staff determines an EIS is not necessary, once the application is supplemented according to my direction in this ruling and the participants have had an opportunity to comment, I will have to make a supplemental determination regarding whether there will be a hearing.

Truck Usage

All the intervenors raised concerns regarding the use of trucks by AMR in the event of a rail stoppage or problem that would cause the waste to remain beyond 48 hours (the limit in the draft permit) unless it was removed by truck. Particularly, NYLPI stated that based upon a reading of the draft permit (special condition no. 34) and the application materials, it would be possible for three days' waste to pile up at the facility prior to removal by truck. TR 1684-1703. Ms. Horwitz of NYLPI explained that it was possible that the railroad officials would not immediately notify AMR of a problem. Then, pursuant to the plan set forth on page 3-6 of the Contingency Plan in the Part 360 application, AMR would wait until 25 hours after notification by the railroad to stop accepting waste and to begin shipping waste out. Ms. Horwitz described a scenario where waste could already have been sitting at AMR for almost 48 hours prior to notification that the railroad was not going to pick up the waste. This would leave AMR with perhaps three days of waste to move out by truck because AMR could wait up to 25 hours after notification to stop accepting waste. Ms. Horwitz further described this situation as potentially leaving the facility with 15,600 tons of waste - causing odors and many trucks trips. Ms. Horwitz also projected that removing the waste in 72 hours pursuant to the draft permit based upon AMR's estimated one and a half hour round trip per truck to get to a location in New Jersey and back could not be accomplished. Additionally, Ms. Horwitz raised concerns regarding the weekend operation of the facility because she projected that waste coming in Saturday evening would sit until Monday prior to being moved, making it possible that trucks would be used more frequently. TR 1717-1718.

In response, AMR stated that during the discussion on rail operations Mr. Popovich of CSX provided statistics on rail failures indicating that they occurred on a very infrequent basis. Supra, at p. 24. With respect to weekend operations, Mr. Klempner of AMR explained that the rails move seven days per week and that waste coming into the facility on Saturday would leave Saturday night and early Sunday morning. TR 1718. Mr. Ryan stated that major disruptions in rail service will come with a lot of notice that will give AMR ample time to work out arrangements. With respect to rail service that is disrupted by derailments or weather events, Mr. Ryan maintained that these are usually short-lived. Mr. Ryan did concede that a literal reading of the draft permit and application could yield to the conclusions that NYLPI has presented but argued that practically, these scenarios would not occur.

Ruling

Pursuant to 6 NYCRR 360-1.2(a)(vi) and SEQRA, I conclude that these issues should be addressed in an EIS and that in any case there needs to be more information presented in the application and more conditions in the draft permit that address the contingency situations that NYLPI has presented. It is after all the words in these materials upon which the staff and the Commissioner ultimately must base their determination as to whether a permit should be issued. Thus, there needs to be supplementation of the application with respect to the exact steps that AMR will take in the event of the foreseeable types of rail disruptions that would force the applicant to resort to truck usage. In addition, there needs to be more detail with respect to the operation of trucks at the facility. Supplementation of the plan should include discussion of how the cessation of waste intake will occur and how that will affect the chain of waste generation. In other words, when AMR cannot take waste because of a rail disruption, what methods will its customers have available to transport their waste by another means.

I would also recommend that the draft permit be revised to require that AMR alert DEC officials immediately upon learning of such a disruption and that AMR stop acceptance of waste at such time as well. AMR should have to get Department approval prior to use of trucks. As indicated by Ms. Allan in her description of the Waste Management situation in early January when rail service failed due to weather, DEC and NYC DOS declined Waste Management's request to use trucks. Instead, the permittee had to stop accepting waste and trains were used to remove the waste over five days. TR 1726-1727. There may be occasions when five days will be too long a period and truck removal will be preferred but it should be up to the regulatory agencies to make this judgment. To wait over one day after learning of a rail disruption to stop acceptance of waste appears incorrect given the difficulties in recontainerizing and rerouting waste.

And, as stated above, the draft permit should limit the number of times and/or days within a year that AMR can resort to the use of trucks. While both DEC and NYCDOS staff maintain that this permit, if issued, would be for a barge-to-rail facility and thus, the facility must generally operate in this fashion or be in violation of the permit, I find that a limitation on truck use should be explicitly set forth in the permit. That will reduce possibilities of misinterpretation by the involved agencies, the applicant or any judicial reviewer. TR 1729-1731. As AMR appears willing to agree to such a condition, this should be easily achieved. TR 1686. Finally, the application and the permit should be clarified to address weekend scheduling insofar as describing exactly how the facility will be operated on Saturday and Sunday.

In the event that an EIS is not prepared, once the application is supplemented on these matters, the staff and intervenors will have an opportunity to review the materials to advise me whether they meet the requirements set forth here. At such time only can there be a determination as to whether an adjudicatory hearing will be needed.

Hazardous Waste

The Borough President's office raised questions regarding the receipt and handling by AMR of hazardous and other unauthorized wastes at the facility. TR 1733-1735. DEC staff noted that the permit condition language reflected the requirements set forth in 6 NYCRR § 360-1.14(e). Mr. Brezner, on behalf of DEC staff, explained that sometimes a transfer station may receive waste that it is not authorized to handle by error. Mr. Brezner explained that the permittee would then be responsible to ensure that it is isolated, transported and disposed of properly. TR 1735-1738. Deputy Commissioner Allan and Mr. Brezner also clarified that household materials such as oven cleaner or leftover paint are considered constituents of residential waste. TR 1740-1741. Ms. Caplan, of the Borough President's office, provided that some of these materials were not to be allowed at the landfill with which Waste Management had contracted. TR 1747. Ms. Allan added that in terms of residential waste, the sanitation workers were careful not to take items such as drums. TR 1753-1754.

The applicant explained that there will be no tipping floors at the MTS's but at AMR as the waste is removed from the barges, the excavator operator will be able to see if there are any visible unauthorized materials. Also, the four picking cranes that service the conveyers lines will allow for a visual inspection and right before the waste goes into the compactor the control room personnel will have a view of the materials. TR 1744-1745; 1755-1756. Mr. Ryan stated that the unacceptable wastes are listed in section two of the application on pages 5-1-5-2-unauthorized asbestos, sewage sludge, tanks/drums, hazardous and low-level radioactive waste, lead-acid batteries and regulated biomedical waste. With respect to certain of these wastes such as drums or asbestos and hospital waste that has been properly bagged, Mr. Ryan maintained that they are easily identifiable. He stated that a Geiger counter can be used to check for evidence of radioactive wastes and that it could be done at the AMR facility. TR 1749. AMR intends to have agreements with the commercial carters that these wastes will not be accepted and to post signs. Mr. Ryan stated that these wastes, if located, will be put in the containers next to the picking cranes and then be pulled out and removed by a contracted transporter by truck. TR 1750-1751.

Ruling

I do not find any basis for an adjudicatory hearing on this topic. The applicant stated how it proposes to handle unauthorized wastes and the Borough President's office did not offer any information as to this plan was inappropriate. However, I do find that there needs to be supplementation of the application on one item. Although Mr. Ryan described the methods that the facility operators can identify unauthorized wastes during the excavation and compacting processes, I do not find this description in the application in section 5.2.2 - Prohibited Transfer Activities. Rather, this section only speaks about random inspections on p.5-3. In response to Ms. Caplan's statement that the landfill Waste Management uses does not accept the routine household hazardous wastes that AMR now considers to be a part of its normal waste stream, I note that Appendix I of the application contains information from the Lee County landfill in South Carolina indicating that this waste would be acceptable.

Recyclables

Ms. Allan explained the City's source separation system that provides for pickup of recyclables separately at residences. TR 1757. She explained that both citizens and commercial operations have to separate recyclables from the waste stream and that commercial carters must demonstrate that they have a vendor for recyclables. TR 1757-1758. She did say that while there are more materials separated for recycling, there is no doubt that much goes into the municipal waste stream and that the transfer stations do not go through these materials again to pull out recyclables. TR 1758. NYCDOS is empowered to enforce these requirements against the commercial generators of the waste. ED argued that there was very little enforcement of the recycling requirements and that this permit should include a provision that no commercial waste should be received that does not comply with the recycling requirements. TR 1761-1768. In support of these arguments, Mr. Tripp pointed to a NYCDOS report dated March 2, 2000 regarding residential recycling diversion (Issues Conference Ex. 73) that indicates only 3.7 tons of the waste being diverted for recycling from putrescible waste transfer stations. TR 1766. In response, Ms. Allan stated that the reason for this low number was because most of the recyclable diversion takes place prior to arrival at the transfer stations and that most of these facilities do not perform this function. TR 1766. Mr. Tripp did not agree with this conclusion, stating that it was very hard to get reliable recycling data from the City but that that more likely the low number was due to the closure of the only post-collection processing facility in New York City. TR 1767. Mr. Tripp argued that AMR should be required to obtain certification from the carters that use its facility that they are not accepting recyclables. TR 1769.

In response, attorney Healy noted that while ED's goals were admirable, the recycling issues that it raises are not relevant to AMR's permit application. Moreover, AMR maintained that such a requirement should be addressed in law so that it applies equally to all transfer stations. TR 1769-1771.

Ruling

There is no requirement in the regulations that transfer stations sort for recyclables at these facilities. Nor has anyone stated that the amounts of recyclables received at this proposed facility would in some way be a significant environmental impact that requires further analysis under SEQRA. Thus, I would agree with Mr. Healy that the goal espoused by ED is admirable and one that I would encourage the regulating agencies to pursue. However, I do not find this requirement to be a basis for adjudication.

Air Issues - Permitting, Modeling Calculations, PM2.5

NYLPI argues that the applicant has failed to comply with Parts 201 and 360 of 6 NYCRR in its evaluation of the pollutant oxides of nitrogen (NOx) which is a precursor to the formation of ozone. The Bronx is part of a severe nonattainment area for this pollutant. NYLPI maintains that the applicant miscalculated the volume of emissions of this pollutant by excluding the contributions of certain equipment such as the excavators, yard hostlers, and gantry cranes. Because these emissions were not calculated in determining the volume of emissions from the facility, NYLPI argues that there was an incorrect determination made by DEC and the applicant that no Part 201 air permit was required for this facility and that significant air impacts will not occur. If a major source is found to emit under 25 tons per year of NOx - an ozone precursor - no permit is required. 6 NYCRR § 201-2.1(b)(21)(iii)((a). The other relevant pollutant based upon the sources in question in this application is sulfur dioxide - SO2 - the threshold amount in New York City for any major facility for this pollutant is 100 tons annually.

In addition, NYLPI and NEJA state that the applicant will be operating this equipment for much longer hours than presented in the application and therefore, the calculations made as part of the SEQRA evaluation are not representative of the actual emissions. And, NYLPI further argues that the applicant did not use the appropriate horsepower and emission rates in making its modeling determinations for the SEQRA analysis performed by the New York City Department of Environmental Protection (NYCDEP). Finally, NYLPI and ED argue that SEQRA mandates that AMR analyze its project in light of projected emissions of PM2.5 even though the national ambient air quality standard (NAAQS) set by EPA with respect to this pollutant has been struck down by the D.C. Circuit in American Trucking Association, Inc. v. USEPA, 175 F.3d 1027 (1999), cert granted, 120 S.Ct. 2193 (2000).

Applicability of Part 201 and Title V

The applicant explains that the equipment in question are mobile sources that are not subject to the Clean Air Act's Title V or DEC's Part 201 permitting requirements. The applicant's consultant, John Ryan, described the activities of the 3 machines that were the principal subject of this discussion. He stated that the excavators (2), while located inside the building, which will have a Venturi scrubber for pollution control, are moving pieces of equipment that will go from one end of a barge to the other and are also moved on a weekly basis as the machinery is rotated. TR 341-343. The excavators grab the trash out of the barge and place it into the compacter. Ryan explained that the yard hostlers are small tractors that pull the containers from the compactors. He stated that the gantry cranes travel the length of the railyard and move full containers on and then empty containers off the trains.

Subpart 201-3 of 6 NYCRR addresses exemptions and trivial activities under DEC's air permitting program. Exempt and trivial activities are included in calculating whether a facility is considered a major stationary source. 6 NYCRR § 201-3.1(c). Trivial activities are exempt from Part 201 and do not have to be listed in a Title V permit application. The applicant and staff rely upon 6 NYCRR § 201-3.3 (10) that defines the following sources as trivial:

  • Engine exhaust emissions and/or refueling emissions generated from mobile and portable power vehicles and
  • equipment used for the propulsion or operation of passengers and/or freight transportation vehicles,
  • marine vehicles and equipment,
  • construction and off-road vehicles and equipment, farm vehicles and equipment,
  • competition and entertainment vehicles and equipment, and/or
  • any other type of mobile or portable engine powered vehicles or equipment when these vehicles or equipment are operated anywhere outside of an enclosed facility for the purpose of their design and intended use or for compliance assessment with any safety or emission control or inspection programs sanctioned by New York State, the Federal government or any governmental entity empowered to carry out such activities.

Section 201-3.3(11) are also referenced by the applicant and staff and this provision identifies as trivial:

Engine exhaust emissions and/or refueling emissions generated from mobile and portable powered vehicles and equipment such as

  • competition and entertainment vehicles and equipment,
  • farm vehicles and equipment,
  • construction and off-road vehicles and equipment,
  • automobiles,
  • motor-cycles,
  • trucks,
  • buses,
  • marine vehicles and equipment,
  • small engine powered tools and equipment,
  • or any other type of mobile or portable engine powered vehicles or equipment which are collected and/or vented in any manner through any opening in a facility when these vehicles are operated in the facility for the purposes of their design and intended use, public safety, comfort or entertainment, facility maintenance, vehicle or equipment repair, adjustment or testing

Section 201-3.1(c) provides that "no source owner and/or operator may omit emissions from exempt or trivial activities from emission calculations to determine if a stationary source is subject to; (1) title V facility permitting; and /or (2) new source review pursuant to Subpart 231-2 of this Title; and/or (3) prevention of significant deterioration as incorporated by reference in Part 200 of this Title."

Staff maintains that it is not required to consider the excavators, yard hostlers and gantry crane to determine if the AMR facility would be a major source subject to permitting because they are "non-road engines" - mobile sources - which are not stationary sources. See, 6 NYCRR § 200.1(cc); 200.1(aw)(1). Because the air pollution sources at the proposed facility would be a small boiler that is exempt due to its size(less than 10 mm BTU/hr) and a number of mobile sources, the project was deemed not to be a major stationary source.

Ruling

NYLPI argues that the AMR equipment are not mobile sources by pointing to the definition of non-road engines contained in 6 NYCRR § 200.1(aw)((2) that provides that "an internal combustion engine is not a nonroad engine if it remains at a location for more than 12 consecutive months . . ." However, NYLPI neglects to mention the definition of location which is included in this regulation as "... any single site at a building, structure, facility, or installation." Thus, it would appear that the AMR equipment would not be exempted from the definition of non-road engines by this regulation because the equipment is not limited to a single site. Even the excavator moves in order to reach the various parts of the barge. Staff also points to 6 NYCRR § 200.1(aw)(2)(i), defining non-road engines, because the AMR equipment is self-propelled and performs other functions at the site. And, as AMR notes, the equipment does not meet the definition of stationary source contained in 6 NYCRR § 200.1(cc) - "building, structure, facility, or installation . . ." while it does fit the description of mobile sources contained in 6 NYCRR § 201-3.3(c)(10) with respect to "freight transportation vehicles" or "any other type of mobile or portable engine."

A letter from EPA Director of the Division of Environmental Planning and Protection Callahan is submitted by staff in support of its position. This July 21, 1997 letter is a response to DEC's revision of its Part 231 regulations. Among the items for which EPA sought changes is the definition of "source project" to exclude "nonroad engines." Ms. Callahan states that the Clean Air Act requires that non-road engines not be regulated as stationary sources. In contrast, NYLPI submits a December 28, 1998 letter from the same author to Mr. Bautista and Ms. Leslie Lowe indicating that EPA had not considered the application of its determination not to include mobile sources in total emissions of a facility where "such emissions occur within an enclosed structure with other stationary source emissions, and are emitted to the atmosphere via vents from the enclosed." Ms. Callahan goes on to say that EPA is reviewing how it should characterize these mobile source emissions at waste transfer stations and also states that a State or locality can be more stringent than EPA and include these sources. While these directives appear contradictory, the AMR equipment does not meet Ms. Callahan's December 28 description because the gantry crane and the yard hostler will not be stationed inside the facility building. And, while this letter indicates that EPA would allow more stringency on the part of the localities, DEC would have to revise its regulations to include these sources.

As noted by AMR in its June 8, 2000 submission, pp. 12-13, 6 NYCRR § 201-3.1(c) provides for inclusion of emissions from trivial activities in emission calculations to determine if a stationary source is subject to Title V, Part 231, or the prevention of significant deterioration (PSD) program "[e]xcept as provided under such air program requirements." The Clean Air Act provides that the requirements of Title V apply to "stationary sources" only. 42 U.S.C. § 7661a. Section 7602(z) of 42 U.S.C. also limits the definition of stationary sources by excepting non-road engines or vehicles as defined in section 7550. It is apparent after a careful review that these regulations do not require that the equipment to be utilized at the AMR facility be factored into the emissions calculation for permitting purposes.

For the first time, in its closing brief, NYLPI raises a potential issue with respect to AMR's compliance with Part 231 - New Source Review in Nonattainment and Ozone Transport Regions - stating that the applicant requires a permit under this regulatory section. Clearly, it is too late to raise a new issue in this proceeding and the petitioner has not provided any basis for this delay.

Lead Agencies' Review of AMR's Emissions Calculations under SEQRA

Pursuant to SEQRA, DEC staff and NYCDOS did require the evaluation of the air impacts of the facility, including this off-road equipment, based upon what that actual use would be - not the potential-to-emit as defined in Part 201. NYCDOS delegated to NYCDEP the review of AMR's air pollution analysis that addressed the project's potential impacts related to its emissions of NOx, PM10, sulfur dioxides, and CO. This review took place over the course of a year and is documented in the records supplied by the Corporation Counsel's office to the parties after the issues conference. According to Deputy Director Licata, NYCDEP relied upon AMR's calculations from each emission source and then the impact of this source on air quality in Hunts Point was evaluated by using the Industrial Source Complex Short Term (ISC3) dispersion model developed by EPA. This model calculates pollutant concentrations from sources based on meterological data and the dispersion of the plume as it interacts with nearby structures. Then, the facility emissions of NOx, SO2, CO and PM10 were added to background concentrations to determine whether there would be any exceedances of the federal and state air quality standards. Licata Aff., ¶¶ 16-17.

An air analyst from DEP, Shahrokh Vafadari, confirmed that the applicant had used the correct inputs for the modeling. He stated that all the on-site sources - gantry cranes, yard hostlers, tug boats, the locomotive, as well as the boiler inside the building were considered as sources. Mr. Vafadari also stated that emissions from the stacks of all the equipment, the tires as they contact the pavement, the average weight of all the on-site machinery and the distances that they travel were considered and multiplied by the emission rate to determine the emissions rates for this facility. He provided that the emission rates for the equipment were obtained from the manufacturer specifications and the emission rate for the boiler came from EPA guidance. Mr. Vafadari also confirmed that the rates were not based upon the maximum number of hours that the machinery could operate but rather on the number of hours that they would be used.

NYLPI argues that the Department did not give any meaningful review of AMR's analysis or of NYCDEP's review of that analysis. NYLPI maintains that AMR underestimated emissions and completely left out of its analysis factors related to idling and deterioration of equipment. The parties agreed generally that calculations of emissions should be based upon the source's emission rate, load factor, and hours of operation. Although with respect to this last component, NYLPI argued that "the potential to emit" should be the basis for determining emissions rather than the hours projected by the applicant.(18) AMR, DOS and staff disagreed with NYLPI's position stating that SEQRA does not require this analysis to determine significance but rather one that addresses the effects that are "reasonably expected . . ." 6 NYCRR § 617.7(c)(1).

Emission Factors - Excavators

In her affidavit in support of the analysis conducted by NYCDEP, Deputy Director Likata Misiakiewicz states that emissions factors (estimates of the amount of pollution emitted by a particular type of equipment during a period of time) for each source were derived from either AP-42, Compilation of Air Pollutant Emission Factors published by the USEPA and/or from data from engine manufacturers. Mr. Daniel Gutman, the air expert produced by NYLPI on this issue, maintained that for the excavators the emission factor for NOx should have been 6.9 grams per horsepower-hour instead of the 5.5 grams that AMR used. The EPA certification data shows that there are three versions of the engine that AMR proposes to use and AMR chose the lower emission factor in its calculations. NYLPI contends that this was not a conservative choice. However, Deputy Director Likata points out that the emission factor of 5.5 was chosen based upon its specificity for the particular engine that AMR proposes to use rather than the those set forth for a broad class of non-road engines. See, Likata Aff., ¶ 28. This view is further supported by the submission by NYCDOS of a section of the Internet site where NYLPI found the EPA certification of the Caterpillar engine that is identified for use in excavators. See, Exhibit A to Reply Memorandum of Law of NYCDOS, Issues Conference Ex. 96.

Load Factors

NYLPI also criticizes AMR's selection of load factors stating that these were improperly derived solely from conversations with manufacturers and vendors. Deputy Director Licata explains in her affidavit that "[a] load factor is the percent of an engine's rate horsepower needed to accomplish a particular task." Licata Aff., ¶ 30. Mr. Gutman maintained at the issues conference that AMR improperly relied upon load factors from engine manufacturers that are lower than those used by the California Air Resources Board (CARB). The data that NYLPI relies upon is contained in a document entitled PUBLIC MEETING TO CONSIDER APPROVAL OF CALIFORNIA'S EMISSIONS INVENTORY FOR OFF-ROAD LARGE COMPRESSION-IGNITED ENGINES(greater than or equal to 25 hp) USING THE NEW OFFROAD EMISSIONS MODEL. The notice that accompanies this document is dated December 27, 1999.

Deputy Director Licata provides that NYCDEP accepted AMR's load factors for its gantry crane and excavators that were received from manufacturers who had generated these numbers as a result of testing on engines representative of the family including those that AMR proposes to use in addition to an exhaust emission test required by CARB and/or the International Organization for Standardization (ISO) - the CARB-8 test. See, Licata Aff., ¶ 33-36; Issues Conference Ex. 71, EAS - Air Quality Analysis Back-Up Data, Section 3 ; Ex. 71a, Section 2. With respect to the yard hostler, Deputy Director Licata explains that the load factor for this equipment was calculated because the standard engine tests did not reflect the use to which the yard hostlers at AMR would be subject. These calculations were performed by the AMR representative in consultation with NYCDEP over several months and involved consideration of changes in engine size, container sizes, the speed at which the yard hostler will travel, its weight when loaded and when empty and the gear at which it operates. Issues Conference Ex. 71a, Section 3; Licata Aff., ¶¶ 37-51.

NYLPI argues also that NYCDEP was overly credulous in relying upon the data provided by manufacturers who were found to have misrepresented diesel emissions to EPA resulting in fines. It is overly simplistic to state that NYCDEP relied upon the statements of these manufacturers in reviewing AMR's submissions. There is supporting documentation submitted by NYCDOS that includes information from the manufacturers and CARB. As for the yard hostler data, this information was calculated by AMR's consultant, Weston, using data from the manufacturer, EPA AP-42 Air Guide, the container manufacturers, and the plans for the facility. Based upon an EPA rulemaking in 1994, standards for CO, NOx, hyrdrocarbons, fine particulate matter and smoke from compression ignition engines for non-road engines above 50 horsepower will be tightened. In 1998, EPA set additional new standards for mobile non-road diesel engines that will affect engines made in 1999-2006. 63 Fed. Reg. 56967 (October 23, 1998). Thus, it would appear that the calculated emissions from the applicant's equipment are greater than what would ultimately be in use assuming that AMR operates its facility. Moreover, as noted by AMR in its brief dated June 8, the CARB document that NYLPI points to does not contain standards but rather numbers taken from studies done by others. Issues Conference Ex. 89, CARB Study, pp. 5,6,8,9.

In its final closing brief, NYLPI criticizes NYCDEP and DEC for not looking to various available EPA studies and memoranda for performing the air impact analysis. While these materials may have been available and provided assistance in this endeavor, I cannot find a sufficient basis to fault the approach the co-lead agencies adopted with respect to the analysis of load factors. The City's analysis appears thorough and based upon correct data and guidelines. While NYLPI would obviously perform these calculations differently, I don't find that to be a basis for finding an issue for adjudication or directing that this analysis be re-done.

Idling

NYLPI also argues that AMR did not account for engine idling between periods of use. At the issues conference, Mr. Ryan maintained that most of the equipment would be shut off between periods of activity. TR 361-363; 401. As stated at the issues conference, AMR repeats in its brief that idling would be discouraged. TR 1578-79; AMR brief, p. 23. Deputy Director Licata states that NYLPI is in error that AMR did not account for idling when calculating the facility's emissions. Licata Aff., ¶¶ 54-59. Basically, Deputy Director Licata maintains that idling time is included within the equipments' hours of operation. This position is also supported by AMR in its brief at pp. 23-24. AMR argues that emission calculations with respect to the excavators and gantry crane were based upon the CARB-8 testing protocol which accounts for idling. In addition, idling time with respect to the yard hostler was addressed in the application. Issues Conference Ex. 71a, Section 3, p.2. While NYLPI surmises that Deputy Director Licata performed calculations to arrive at her statements in the affidavit - the information is already contained in the Air Quality Analysis. Id. And this information reveals that the total, non-travel time is 4.5 minutes per container. This period includes the period for the yard hostler to pull forward from the compactor at the facility (.5 minutes), for the gantry crane to unload/load a container (3.5 minutes) and for the yard hostler to return to the compactor (.5 minutes). As stated by NYLPI, this calculation does rely upon a one-minute interval at the facility.

There appears to be some disparity with respect to real conditions. For one, Deputy Director Licata states that the excavators will be idling half the time of their operation while Mr. Ryan maintained that the excavators will be turned off when not in operation. Licata ¶ 57; TR 361-363; 401. AMR has stated that its operational guidance will include a policy of shutting off engines during inactivity - a draft permit condition should be added that requires AMR to ensure this result. I would agree that the time periods allotted for these activities such as the yard hostler appear very tight and that any small delay would result in increased emissions that have not been analyzed. I would recommend that in scoping the EIS these considerations be included. In the event an EIS is not required by staff, an adjudicatory hearing will address the activities of the yard hostler and whether these emissions were properly factored.

Deterioration

The next subject concerning the calculations that AMR performed is deterioration. Here, the parties are in agreement that this factor was not included in the calculation. NYLPI argues that based upon studies done on non-road vehicles, DEC should have been aware that there is an increase in actual emissions due to deterioration. NYLPI argues that to account for this increase, CARB specifies an increase in NOx and particulate matter emissions over the life of the engine. In assessing AMR's air impacts, NYCDEP "assumed that AMR would follow manufacturers' recommended maintenance procedures for all sources of emissions . . ." Licata Aff., ¶ 52. Ms. Licata also remarks that NYCDEP was not previously aware of any model that adjusts emissions rates based upon deterioration of engines. While not necessarily in agreement that this element should be factored, Ms. Licata argues that because the CARB report did not appear until after the NYCDEP completed its work on this, the agency could not have considered it. Licata Aff., ¶ 53. AMR posits that because there is no standard or requirement that deterioration should be considered, AMR did not have to do so. AMR also notes in its brief that the CARB study was based upon an estimation of how the existing fleet of off-road vehicles affected the overall air quality in California and thus, addressed a wide variety of vehicles in all kinds of condition. AMR Br., p. 24, Issues Conference Ex. 84.

The applicant agrees to be bound by a permit condition that imposes an equipment maintenance obligation. This seems like a reasonable solution; however, the EIS should also address the potential for increased emissions related to equipment aging in order to assess whether it is a concern that will be adequately addressed through such a condition. The fact that there is no binding standard or regulation governing deterioration is not determinative under SEQRA. In Lane Construction Corporation v. Cahill, 270 AD2d 609 (3d Dep't 2000), the Third Department declined to discount the Commissioner's decision to deny a mining permit based, in part, upon visual concerns despite the lack of specific standards due to the fact that the decision was premised upon SEQRA. And, as now noted by NYLPI in its final closing brief, on May 31, 2000, EPA released a new version of its non-road model that provides for a deterioration rate. See, NYLPI Final Post Issues Conference Brief, p. 11 citing EPA Memorandum, Changes to the Nonroad Model for the April 2000 Version Used in Support of the 2007 Heavy-Duty Diesel Engine Rule available at http://www.epa.gov/otaq/models/nonrdmdl/hdddoc11.pdf This model, while not determinative, could be used as guidance. In the event that the staff declines to require an EIS, AMR will supplement its air analysis to address deterioration.

Permit Condition No. 31

The last item that is related to the matter of emissions calculations concerns the change in operations necessitated by staff's clarification of draft permit condition number 31. This condition, as now worded by staff, requires that the two doors located on the water side of the facility must remain closed except when barges are entering or leaving the facility. While the doors are open, unloading activities must be stopped. Based upon this change, AMR admits that operations will take longer. However, the applicant contends that the equipment will not operate any longer than previously assessed as the added time will result in equipment down-time and thus, this change does not result in any additional emissions. NYLPI disagrees with this conclusion due to increased idling time. As stated above, idling should be specifically addressed in the EIS and a permit condition should be developed to minimize it. NYLPI's arguments regarding how this permit condition relates to the efficacy of the negative air pressure system are discussed on p.60, infra.

In its last submission, NYLPI argues that the revised condition still allows for both doors to be open. Br., p. 14, Issues Conference Ex. 98. This statement appears to reflect a misunderstanding on the part of NYLPI with respect to this condition. The issue that arose at the conference was that the doors would remain open for potentially hours while the barges came in and were excavated. TR 688-689, 691-693. The staff clarified that there was to be no excavation while the doors opened and the revised condition reflects that intention. However, for the brief periods that the barges come in and out, of course, the doors would have to open. Since the barges arrive covered and are covered again when empty prior to departing the facility, condition 31, in addition to the other odors controls, should mitigate odor problems. See also, Part 360 Application, Engineering Report, p.2-2.

Ruling

Overall, I find that AMR generated a thorough analysis of the potential air emissions from the facility. While NYLPI criticizes the co-lead agencies for their reliance upon NYCDEP, SEQRA does not require that the lead agency itself take on the detailed analysis of each potential impact. Rather, it is appropriate to rely upon experts as long as the lead agency does perform some independent oversight of the results. See, ECL § 8-0109(3); 6 NYCRR § 617.4(c); Coca-Cola Bottling Co. v. Board of Estimate of the City of New York, 72 NY2d 674 (1988). From the documentation submitted by NYCDOS it is apparent that it maintained oversight of the air analysis. Issues Conference Exs. 71-71jj. Department staff indicate that they concur with the analysis that was performed. See, Sefedian Aff. and supporting memorandum dated June 12, 2000. However, DEC staff does not appear to have had any role in oversight of the air analysis until recently. Based upon a stipulation in City of New York v. NYSDEC, Index No. 7218/91 (Albany Co. Supreme Court 1992), so ordered by Supreme Court Justice Conway in March 1992, these two agencies are designated as co-lead agencies for transfer station permit applications when both DOS and DEC have jurisdiction. The stipulation does not specifically address which agency shall address air impacts. Whether NYLPI or this ALJ would have assigned the air analysis to the City is not significant in terms of whether or not a proper review was performed under SEQRA.

Despite what appears to be a careful review of the air impacts, there are a few matters that require further review and/or the development of specific permit conditions as noted above. Idling and deterioration should be examined as part of an EIS and relevant permit conditions developed to ensure that these events do not significantly increase emissions. In the event the Department staff do not require the preparation of an EIS, then I find that the idling factor with respect to the yard hostlers should be the subject of adjudication. The applicant, staff and NYC DOS will have the opportunity to present evidence on how the air analysis supports the outcome based upon the idling factors. NYLPI, through Mr. Gutman, will present evidence on how this factor would change the outcome of the air analysis. With respect to deterioration, AMR will have to supplement its application and then after the participants have an opportunity to review that material, I will rule on whether it should be included in a hearing.

PM2.5

NYLPI and ED argue that AMR's environmental assessment was deficient due to the omission of a review of the incremental PM2.5 impacts that the proposed facility will have on the community. PM2.5 are fine particles that include particles with a diameter of 2.5 micrometers or less. There is currently a NAAQS for PM10 that includes particles with a diameter of 10 microns or less. In 1997, EPA promulgated a standard for PM2.5 based upon findings that fine particulates that are generated by diesel engines and other sources, both stationary and mobile, penetrate and deposit into tracheobronchial and alveolar regions of the lung. 62 Fed. Reg. 38651-38701 (July 18, 1997). Particulate matter is a general expression for a broad class of chemically and physically diverse substances. The inhalation of fine particulate matter potentially causes and exacerbates a number of respiratory and cardiovascular conditions such as depressed immune systems, hypoxia, apnea, asthma, and hypertension. See, Issues Conference Exhibit 68, Review of the National Ambient Air Quality Standards for Particulate Matter, Policy Assessment of Scientific and Technical Information, OAQPS Staff Paper, USEPA, July 1996, pp. V-6-8. The new PM2.5 standards are comprised of an annual standard set at 15 microns per cubic meter and a 24-hour standard set at 65 microns per cubic meter. The intent of these regulations is to provide protection for the health related effects described and thus, decrease hospital trips, school and work absences, and mortality. See, Clean Air Act Handbook, David R.Wooley, 9th edition, p. 1-14.

The PM2.5 regulations promulgated by EPA were overturned in American Trucking Association v. USEPA, 175 F.3d 1027 (D.C. Cir. 1999), cert granted, 120 S.Ct. 2193 (2000). The D.C. Circuit found that EPA's interpretation of the pertinent sections of the Clean Air Act resulted in an unconstitutional delegation of legislative power because there were no specific criteria to set standards for pollutants that have no known threshold for damaging health. The difficulty with particulates is that there is risk of adverse health with any exposure above zero and thus, the court demanded that EPA explain better the choice of any nonzero level. This same decision, however, rejected industry claims that there was insufficient data to establish the links between particulate inhalation and problematic health concerns. The court remanded the standards to EPA for a better articulation of the rationale to support the choice in standards. See also, Environmental Compliance & Litigation Strategy, Vol. 15, No. 1 (June 1999), pp. 3-6.

In addition to the court's rejection of these regulations, the applicant, the City, and DEC staff argue that even if the regulations were in effect, EPA has set forth a slow process towards their implementation. Particularly, these parties point to a memorandum of President Clinton dated June 16, 1997 that seeks to imbue this process with flexibility, reasonableness, and minimum burdens. Also mentioned in this memo is the plan for EPA to review the particulate matter standard within 5 years of issuance of the standards. By July 2002, the federal agency would decide whether to revise or maintain the standards and this determination will be prior to any with respect to designation of nonattainment areas and imposition of specific controls. During this period, EPA was to establish a monitoring network to assess ambient levels of PM2.5. In addition to guidance from EPA (63 Fed. Reg. 8196 [February 18, 1998]; 63 Fed. Reg. 65,593 [Nov. 27, 1998]), in 1998, Congress reauthorized the Intermodal Surface Transportation Efficiency Act (ISTEA) that included a rider regarding Clean Air Act implementation schedules. This rider provides more time for implementation.

Assuming that the 2002 date for assessment of attainment areas is met, areas will then be given 3 years to develop and submit control plans to EPA and 10 years to attain the standards with the possibility of two 1-year extensions. See, Clean Air Handbook, supra at pp. 1-28-1-32. Staff also cites the memo from John S.Seitz to EPA Regional Directors on Interim Implementation of New Source Review Requirements for PM2.5, October 21, 1997 (Issues Conference Exhibit 66), pp. 1-2, in which Mr. Seitz discusses the lack of tools sufficient to calculate PM2.5 emissions and to project air quality impacts. He also provides that in the interim, PM10 would serve as a surrogate for reducing PM2.5 emissions. Staff also maintains that there is insufficient data to determine background levels for PM2.5 in the vicinity of the project. Two DEC monitors in the Bronx produced data that exceeded the new standard while two others showed concentrations below the standard. Based on the data DEC has compiled thus far, the two monitoring sites closest to the Hunts Point area and the AMR site showed average background concentrations of 14.3 micrograms per cubic meter and 15.9 micrograms per cubic meter, respectively. See, Issues Conference Exs. 62, 63, 64.

Staff acknowledges a letter from the Director of EPA's Region II Division of Environmental Planning & Protection dated April 20, 2000 that indicates that an analysis of PM2.5 emissions is appropriate if the project involves significantly increased PM2.5 emissions particularly in areas of high particulate matter levels. Staff emphasizes Director Kathleen Callahan's remarks regarding the limitations on "analytical techniques available to estimate PM2.5 impacts" particularly with respect to mobile sources. However, Ms. Callahan goes on to say that "it is still possible to assess a project's fine particle impact now" and points to EPA's advice to project sponsors in New York City that this analysis should be done where increased diesel traffic was an anticipated impact. Issues Conference Ex. 87.

Based upon staff's view that there is insufficient data available to perform the PM2.5 analysis, they find that the use of PM10 was appropriate since the results of the modeling indicate that emissions will be below the NAAQS for this pollutant. Issues Conference Exhibit 7, Negative Declaration, pp. 12-15. Staff points out that this approach is consistent with the City's technical manual on City Environmental Quality Review that uses the NAAQS to determine whether criteria pollutants will have significant effects. City of New York Environmental Quality Review Technical Manual, December 1993, pp. 3Q-35-3Q-36. Staff and others also cite Justice Goldberg's decision in Golden v. NYCDOS, Index No. 42723/98 (Kings Co. Sup. Ct. 1999), Issues Conference Exhibit 67, in which the court found in this challenge to the City's interim contracts to close Fresh Kills, inter alia, that the "[p]etitioners have made no showing that SEQRA or the Manual requires study of particulates other than PM-10." However, NYLPI notes in its final closing brief that PM2.5 was not made an issue in Golden except in an affirmation of counsel in response to the assertions of its adversary's medical expert.

In Assistant Corporation Counsel Mark McIntyre's affirmation of July 11, 2000, he provides additional information regarding the two projects that Ms. Callahan cites in her letter. Specifically with respect to the Harbor Navigation Study, he states that its next phase is the "development of a harbor master plan that will assess maritime facilities in the Ports of New York and New Jersey over the next 60 years." Mr. McIntyre provides that City personnel involved with this project state that no decision has been made regarding a PM2.5 analysis. Additionally, he notes that the EIS for this plan will not be completed for 3-5 years so it is conceivable that during this time the PM2.5 issues will be resolved by EPA. Citing an October 29, 1999 letter from EPA's Hargrove to Letitia Thompson of the Federal Transit Administration, with respect to the Second Avenue Subway, Mr. McIntyre explains that EPA's only direction regarding particulates has called for a PM10 analysis. See Exhibit B to McIntyre Aff., Issues Conference Ex. 96.

In its closing brief, ED seeks a supplemental environmental assessment because PM2.5 is a major air pollutant of health concern which adherence to the PM10 NAAQS does not address. ED questions AMR's remarks in its memorandum of law and during the issues conference that the operation will have no effect on PM2.5 levels because the project will result in a reduction of truck-to-truck transfer of putrescible waste, stating that there is no support for this claim. ED states that this outcome is possible but needs to be carefully examined in addition to requiring conditions that cap waste throughput in the Bronx. ED disputes the staff's claims that there are inadequate tools to analyze PM2.5 emissions and effects. ED states that most of the emissions from the diesel equipment are particulates in the PM2.5 category and that the ISC model is applicable to finding out the concentrations at the site boundary. ED propounds that these results could be added to the background levels found at the DEC air monitors to obtain a total concentration. ED Br., p. 21, Issues Conference Ex. 86. Mr. Gutman, the air expert for ED and NYLPI, explained at the issues conference that the Seitz memo's purpose was to offer guidance on the development of a control program rather than modeling an individual source. TR. 1339-40. He argued that the White House memo was written before there was any data on levels of PM2.5 but now there is data that is sufficient for this project and the models in use for PM10 are applicable to PM2.5. TR 1340-1343.

ED also points to the Callahan letter as support for a SEQRA analysis in these circumstances while acknowledging that Ms. Callahan mentions the lack of a reliable method for mobile emissions (she does not distinguish between on-road or off-road vehicles in this letter). However, ED maintains that emissions of off-road engines are well known because they must meet EPA emissions standards for particulates. And, ED argues that the background data available to DEC is sufficient for a SEQRA analysis.

In further support for its position, ED presents a letter by Robert W. Hargrove, Chief, Strategic Planning and Mult-Media Programs Branch, EPA dated June 27, 2000 to Deputy Commissioner Martha Hirst of NYC DOS in which Mr. Hargrove provides comments on the City's draft EIS for its SWMP. As part of his comments, Chief Hargrove states that in addition to the PM10 evaluation performed by the City, "an analysis of PM2.5 emissions is appropriate if this project involves significantly increased PM2.5 emissions and especially in areas that are affected by elevated particulate matter levels . . . [including] most, if not all of New York City . . ." He further acknowledges that while there are limits to the analytical techniques available for this purpose, he finds that "at least a qualitative analysis . . . should "be included in the final EIS."

Leon Sedefian of DEC's Bureau of Technical Support for the Division of Air Resources stated at the issues conference that the Seitz memorandum was directed at source permitting and DEC understands that it is to use PM10 as a surrogate for PM2.5 to determine ambient background levels to which a source contributes. However, Mr. Sedefian disagreed with the concept that the modeling for PM10 and 2.5 would be the same because he stated that the sources are different. TR 1343-44. While he agreed that anything could be modeled, he asserted that without data to rely upon with respect to ambient concentrations it would be "very difficult to get a clear picture on what this source or ... any other individual source might do." TR 1345.

Ruling

SEQRA requires that potential environmental impacts of a project subject to permitting be assessed and if these impacts may be significant, an EIS is mandated. ECL § 8-0109. All the parties to this proceeding are in agreement that PM2.5 is a cause of detrimental health effects in people. While ordinarily that would seem to be a sufficient basis to analyze the impacts of this pollutant under SEQRA, the status of the PM2.5 regulations has convinced the staffs of the co-lead agencies otherwise. Despite the D.C. Circuit, however, the Environmental Protection Agency has provided somewhat contradictory guidance with respect to the course state and local agencies should pursue when reviewing air impacts from various projects.

Environmental Defense points to the Commissioner's decision in the 1983 Con Edison coal conversion case as precedent for requiring an analysis of PM2.5 in this matter. In the Matter of the Applications of Consolidated Edison Co. of New York, Inc., 1983 WL 166627 (Sept. 14, 1983). In this permit application proceeding pursuant to 6 NYCRR § 225.2(c), Con Edison applied to DEC to authorize it to burn coal at three plants in the City of New York. Among the issues addressed in that proceeding were the effects of SO2 emissions on the NAAQS and on acid rain in the Northeast, and the costs and benefits of certain air pollution control equipment, particularly flue gas desulfurization (FGD) equipment and electrostatic precipitators. Commissioner Williams concluded that the proposed conversion to coal burning in the Northeast viewed cumulatively would appreciably increase acid rain and that out of all the proposed conversions, Con Edison's project was substantial - one-third of the total SO2 emissions predicted for 27 power plants in the Northeast that intended to convert to coal burning. While acknowledging that there had been substantial improvements in the ambient air quality for SO2, the Commissioner found that the Con Edison application along with the other proposed conversions in the Northeast would use up a large portion of the SO2 "window" available, thus curtailing the ability of other business to expand in the City. Accordingly, in balancing these factors and others, Commissioner Williams determined that the applicant would have to install FGD equipment at two of the three facilities in order to burn coal.

I agree that this case supports the need to look at the incremental effects of this project. As noted by ED, while the reviewing staff found that AMR would not exceed the PM10 standard, it will use up 29% and 13% of the remaining increment that would cause an exceedance of the 24-hour and annual standards, respectively. See, EAS, Appendix J, Table 7, p. J-11, Issues Conference Ex. 6. This factor is similar to considerations in the Con Ed application. In contrast to the Con Ed scenario, this record does not reflect a specific number of similar projects planned for this area. And, the scale of AMR's project can't be compared to the project in that application. However, as discussed throughout this ruling, the area is already subject to a number of other waste facilities and other enterprises that rely extensively on trucks that are contributors of particulate matter in the ambient air. And, the limited data available does reveal background levels of PM2.5 near or above the proposed standard. Thus, it would appear imperative in light of the scientific evidence regarding the health effects of this pollutant to prepare an analysis of the potential effects of the emission of PM2.5 from this facility.

Apparently, EPA has begun to address appropriate models for individual sources as noted by ED in its closing submission but also recommends that model users consult with EPA's regional office. Because EPA has been the source of much of the conflicting guidance on this issue and is clearly the leading authority on PM2.5 effects and the means to address them, I recommend that the co-lead agencies' staff in coordination with the applicant seek this federal agency's assistance in performing this review.

In its final closing submission, ED makes a very strong argument that because the agency responsible for assessing air pollution effects has determined that PM10 is not protective of the public health, it is imperative that in assessing the impacts of a project, PM2.5 be considered. I agree. Because I find that an EIS is warranted in this project, I recommend that this assessment be done as part of that process and that consultation with EPA take place as part of any scoping that occurs on air impacts. Included in the preparation of the DEIS, the applicant and/or the co-lead agencies must address the contingent use of trucks at this facility which would potentially cause significant impacts with respect to particulate emissions in light of the other truck-based solid waste facilities in the area. At such time, there should be more ambient data as well as additional and clearer guidance from both EPA and the courts with respect to the modeling of individual sources and PM2.5 impacts.

I also recommend that the permit provide, in addition to any penalties extracted from AMR for the use of trucks pursuant to ED's suggested permit condition no. 10, an annual limit to their use so that any environmental impacts from this source would be lessened. I also recommend that in addition to these conditions, the staff and AMR consider the placement of a monitor in the vicinity of the facility to provide ongoing data on PM2.5 in the area. From the issues conference discussion, I gathered that a monitor had been moved due to maintenance difficulties at a school location. Perhaps using a private site would enhance DEC's monitoring program. There should be careful consideration of the placement of this monitor in order to ensure that it does reflect the conditions that are borne by the population in this community.

In the event that staff decide not to require an EIS, at minimum, I find that this issue is appropriate for supplementation of the EAS. 6 NYCRR § 621.15(b). Without such information, it is impossible to determine whether the project has insignificant impacts with respect to fine particulate matter. In the event an EIS is not prepared, the applicant will have to supplement its application with an analysis of the project's PM2.5 impacts. Once this information is submitted to the Department, the issues conference participants can review it and make recommendations as to whether the conclusions are in accord with SEQRA. At such juncture I will be in a position to determine whether a hearing is necessary on this matter.

Negative Air Pressure and other Odor Control Measures

NYLPI claims that the negative air pressure system designed for this facility will fail and therefore, will not operate effectively to prevent odors from escaping into the community. To support this claim, NYLPI had Barbara Warren, Director of the New York City Toxic Air Pollution Project of the Consumer Policy Institute, present its views at the issues conference.(19) Ms. Warren argued that the projected air flow of 230,000 cubic feet per minute would provide basic general ventilation but would not work as a negative air pressure system.(20) Negative air pressure is a design that provides when a door or window is opened, air rushes from the outside in so that odors and other air pollutants do not travel outside. Ms. Warren maintained that due to the presence of other doors and windows in the building that would also affect the air flow, the system was inadequate.

The application (pp. 2-20 - 22 of the Engineering Report) ) addresses building ventilation, the odor and dust scrubbing system, and the odor neutralizing mist system. The report states that the building will be ventilated by using exhaust fans and a scrubber system for particulate and odor emission control.(21) The exhaust system is supposed to create negative pressure within the building so that all air from the building will pass through the scrubber. Because the odor compounds are water soluble, the applicant presents that the wet/chemical scrubbing system will be effective in defeating them. The doors will be kept closed except when barges are moved in or out and the other entries described by Ms. Warren would not be open during the operation such as the emergency ventilation doors.(22)

Based upon the staff's interpretation of draft permit condition 31 and AMR's April 28th submission, Operational Impact Assessment Regarding Draft Permit Condition 31 Interpretation (Issues Conference Exhibit 79), the marine doors will be open for only 60 minutes per day - 12 minutes per barge exchange - the time needed for the barges to enter or leave the facility building. The staff stated that while negative air pressure might be slightly compromised during the opening of a door, it would be localized and temporal and therefore, the impact would be very limited. As long as there was unloading going on in the building, the doors on the water side (south side) would be closed. In addition, special condition no. 37 of the draft permit requires that whenever there is waste in the building, it shall be under negative air pressure and all air exiting the building will be treated by the facility scrubber.

On this matter, I do not find that the petitioner, NYLPI, has raised a substantive and significant issue. Ms. Warren provided conclusory statements that the system would not work. While stating that the system was inadequately sized to provide the negative air pressure intended, she did not present any analysis to back up these conclusions. The application does contain a description of how this system is intended to work. In raising matters for adjudication, the burden is on the intervenor to present a case and NYLPI has failed to do so here. In response to the ALJ's question regarding whether Ms. Warren would be the witness in the event there was an adjudication of this issue, she replied that she would look for "another air expert . . . on this as well as other issues." But the time to set forth the objections to the project and the technical support for these was in the petitions and at the issues conference. In addition to my finding that Ms. Warren does not appear to have the engineering expertise to support NYLPI's claims on this matter, I also find it problematic that this petitioner is continuing to "look for experts" at the time of the issues conference. Daniel Gutman, the shared air expert of ED and NYLPI, did comment briefly on the negative air pressure system during the April 6 session of the issues conference. However, his comments were equivocal - "I'm not sure that even having the doors closed is efficient . . .", "I'm not sure, I don't know" - and therefore, cannot serve as the basis for any determination that this issue is adjudicable. TR 1530. Mr. Gutman did agree that a fan of sufficient size could be installed to provide sufficient pressure. TR 1531.

Marine Doors

In NYLPI's post-issues conference submission of June 13, 2000, the petitioner states that the marine doors will never be completely closed due to their fabrication of vinyl-coated polyester and mesh. Part 360 application, pp.2-6, 2-7. Thus, NYLPI questions whether the facility can maintain the negative air pressure with the marine doors always being effectively open. See, NYLPI Br., p. 18. And, NYLPI argues that based upon the different interpretations of condition no. 31 by staff and the applicant, the staff reviewed a very different operation from what AMR intended and thus, this "dispute" should be the subject of adjudication.

The design of the doors appears to be misunderstood by NYLPI - the mesh panels will be at the bottom of the doors and extend underwater according to the applicant. TR 1525-26. These are designed to resist wave, current and ice loading and do have a fine mesh construction to allow for ventilation while trapping dust and litter. The main part of the doors are to be constructed of panels of vinyl-coated polyester fabric supported by aluminum beams. AMR Part 360 Permit Application, Engineering Report, p. 2-6. While staff and AMR did vary in their interpretations of condition no. 31, AMR has agreed to be bound by staff's interpretation. And, while this may lengthen operations, this does not become a basis for an adjudicable issue.

Other Odor Control Measures

Regarding the more general issue of odors generated by the facility, NEJA stated that the barge covers are not air-tight so that off-gassing of putrescible waste appears possible and also that there were no odor controls for the barge staging area and for the trains. In the context of the failure to do an environmental impact statement, Congressman Serrano raised the issue of trains sitting for days in railyards potentially within 500 feet of some residences. The Borough President sought a limitation of a 24-hour period for waste at the transfer station based upon concerns of odors and vectors. ED argued that there were no odor standards and provisions for monitoring in the draft permit and potential odor problems from trains and other facilities had not been adequately addressed.

In the Engineering Report and the EAS-Air Quality Analysis Back-up Data (as well as the Operational Impact Assessment Regarding Draft Permit Condition 31 Interpetation of April 28, 2000), the applicant presents several features of the proposed facility that are intended to abate odors. AMR has agreed to a permit condition requiring that the barges that come from the MTS's will be covered with an impermeable cover (except in weather conditions that prevent this) and has proposed a permit condition to that effect in its submission of March 30, 2000 (Issues Conference Ex. 36). As stated above, AMR provides in the Engineering Report (2-19) that as a barge arrives at the facility, the marine doors to the building located on the south side will open and then close. The unloading process is to take place with the doors closed. Condition number 31 of the draft permit, which addresses these doors' operation, was not understood by the applicant to mean this. Thus, it was apparent that the staff had to rewrite the permit condition to make it clear that as long as waste is being excavated inside the building, the doors must be closed. The staff has done so on page 13 of its brief:

The two roll-up doors on the south wall of the subject facility shall remain closed, except during the time the barges are entering or leaving the facility. At these times the doors may be opened for the time it takes the barges to pass through the doorways. While the doors are fully or partially open, all unloading activities of barges shall be suspended until the doors are fully closed. All other facility doors shall remain closed, except while vehicles, equipment or personnel are entering or leaving the facility.

Spray System and Intermodal Containers

According to the Engineering Report (2-20), the excavators which remove the waste from the barges will place the waste on a walking floor hopper that will transport it to the conveyor system to the compactor. The application provides that if a "particularly malodorous barge of waste" arrives, the excavators will be prepared to spray the waste in the barge. The compactors are also to be outfitted with a spray system to use on the waste prior to compaction when necessary. Engineering Report 2-22, Issues Conference Ex. 5. The application also contains a description of an outdoor misting system along the perimeters of the facility at intervals of 50 feet that will be used when weather and/or odor conditions require. Id.

Once compacted, the waste will be placed in an intermodal container. Mr. William Gay, of a subsidiary of Allied Waste known as ECDC Environmental, attended the issues conference on March 14, 2000 to speak about rail service and these containers. TR 754-757. ECDC manages the rail movements for Allied Waste and he is personally responsible for rail movement of about 2500 tons of waste per day.(23) In addition to describing the service that he had seen provided by CSX on the train lines that are proposed to serve AMR as well, Mr. Gay spoke to the nature of the intermodal containers. He described the containers as flat all the way around with a teflon-like lining. He explained that when these containers were tipped at the landfill almost all the waste came out with the remaining being swept out. He stated that the smoothness of the containers assists in removal of waste that could get caught in older types of containers and potentially lead to odors.

These containers have only one opening, a gasketed tailgate, that is designed to be water tight. (See, EAS-Air Quality Analysis Back-up Data, p. 2). Photographs that were submitted into the issues conference record on April 4 (Exhibits 46 and 47) show these containers. The representative of Accurate Industries, Mr. Gary Stotz, attended the issues conference on April 4 and described these containers in detail. Supra, pp. 31, 38. With the aid of additional photographs, he demonstrated how weaknesses in design and structure in other types of containers, e.g., shoebox type container, might allow for the escape of odors from the cargo. TR 1034-1037; Issues Conference Ex. 46.

48-Hour Requirement

In addition, to the seal on the containers and the misting system that are designed to minimize exposure of solid waste and attendant odors to the outside environment, the applicant maintains that because the waste will remain at the facility for 48 hours after it is received, this will also reduce the potential for odors. Special condition no. 33 provides for the 48-hour limitation except for waste received on a legal holiday - then 72 hours are allowed for removal. The applicant has also offered a permit condition that would require the waste to leave within 24 hours once it is loaded on the train. In the event that the waste does not leave and nuisance odors result, AMR would pay $10,000 into the Environmental Improvement Fund for each day the shipment was delayed.(24)

Monitoring and Enforcement

With respect to monitoring of the facility for nuisance-causing odors, the staff provided that it will be inspecting the facility regularly if it should be permitted. ED responded that there needed to be a very specific permit condition to address this because otherwise it will be very difficult to establish AMR's responsibility for odors based upon a number of possible sources. ED proposed that there be a monitor installed that picked up organic compounds or a human monitor stationed at the facility on a regular basis. The applicant stated that the regulations already prohibit the creation of a nuisance condition and that the draft permit provides for a monitor. See, special condition no. 39. The permit terms do not state how frequently the monitor will be at the facility and the applicant stated this was to be discussed. TR 429.

The Borough President's Office, NEJA, Congressman Serrano's office and NYLPI stressed that the various waste handling facilities in this area often create odors that are troublesome to the community and that the response of the regulators has not been sufficient to deter this problem. On behalf of Congressman Serrano, attorney Torres (who lives on Manida Street close to the Oak Point railyards) stated that the Borough President and the Congressman sit on an environmental quality committee for Hunts Point and receive odor complaints on a regular basis from the community. He stated that many of these complaints come from residents who live near the railyards where waste is currently received from Waste Management and Republic solid waste facilities. Mr. Torres stated that when trains carrying garbage were held at the railyards, odors resulted, affecting nearby residents. He agreed that fines had been assessed by the City but that the results have been inadequate to address the ongoing problem.

NYCDOS spoke to its mechanisms for responding to citizen odor complaints and taking enforcement measures. Department staff also stated that it is their policy to respond quickly to citizen odor complaints while acknowledging that it was not always simple to determine the exact source of the odors given the various facilities in the area that can generate them.

In its March 30 submission, the applicant proposed that an AMR community advisory committee be organized that acts as a liaison between the community and AMR and an environmental conservation officer (ECO) that is assigned to the area of the South Bronx where the facility is located. The ECO would be responsible for investigating odor complaints and if found to be due to AMR's activities, the ECO would notify AMR in writing. Upon receipt of such notice, AMR would have to implement odor control measures as specified in the contingency plan and identify the cause of the odors, the steps taken to address them, and long- term measures to prevent such conditions. According to this proposed condition, AMR would also designate a telephone number that the community advisory committee could use to alert the company to complaints. At the issues conference, the applicant stated that it wished to enter into a dialogue with the other parties to establish appropriate mechanisms for addressing any potential odor problems.

DEC staff and the City representatives agreed that they too would be willing to enter into these discussions. Ms. Suchman, on behalf of NYLPI, stated its opposition to such discussions prior to the completion of an EIS. However, she did agree that as long as it was understood that NYLPI would not give up its objections to the lack of an EIS, it would be willing to talk. I have received no information from the parties indicating that these discussions ever took place.

Ruling

As indicated above, the petitioners have raised a number of concerns with respect to generation of odors from this facility based upon their experience with other transfer stations and other waste-handling facilities in the area of the project. While it appears that the applicant has proposed a number of potentially effective measures to minimize odors, the experience of this community has been that the odors persist despite permit conditions and regulatory enforcement. In addition, based again on past experience, even if the applicant is vigilant in its use of the odor control measures, the prospect of the intermodal containers sitting on trains in the railyards for days due to problems with rail service is worrisome.

The petitioners have not presented technical information to demonstrate that AMR's control measures will not work. Nor have they presented a list of expert witnesses that could address these issues effectively. However, pursuant to the State Environmental Quality Review Act, the proponent of a project must consider the cumulative impacts of similar facilities within the same community. 6 NYCRR § 617.7(c)(2); Save the Pine Bush v. City of Albany, 117 AD2d 267 (3d Dep't 1986), 70 NY2d 193 (1987) (cumulative effects of project and others pending must be considered in environmentally sensitive area); Friedman v. Adirondack Park Agency, 165 AD2d 33, (3d Dep't 1990) app den, 78 NY2d 853 (1991) (residential development's impacts must be considered with respect to other existing developments that could cumulatively produce contamination feared). In Hunts Point, there are approximately 21 waste facilities proximate to AMR's site.(25) While it may be that if permitted AMR would be state of the art in terms of these facilities, it cannot be ignored that the applicant would be bringing up to an additional 5200 tons of waste to a community that already has a large concentration of waste coming in. Based upon the magnitude of this volume of waste and the problems that currently exist with respect to existing transfer stations, AMR should be required to prepare an EIS.

As is discussed in other sections of this ruling, there are a number of other issues raised by the petitioners such as effects of PM2.5 emissions and impacts of the project on natural resources that point to the necessity for an EIS. Specifically, with respect to odors, there needs to be an analysis of the proximity of residences to the railyards and the potential effects of rail delays on them. On our visit to the facility site and the surrounding community, we noted that at a number of transfer stations, basic permit conditions such as prohibitions on open doors and truck idling were ignored. Thus, there appears to be a significant gap between permit conditions and the ability of the agencies to effectively enforce them. The applicant has offered permit conditions to address this gap such as a citizens' committee. However, there needs to be further analysis of how these measures would work and whether the agencies have the resources to address problems once they come to their attention. Because, as noted as the issues conference, the citizens may have all the information about particular violations of a permit or odor-causing conditions, but their recourse is to file these complaints with the agencies.

While I find that the potential for cumulative effects of this project warrant the production of an EIS, I do not find that the issue of odor controls alone is one for adjudication. The petitioners have not demonstrated that AMR's proposals with respect to mitigation will not be successful. Although I believe that potential odor impacts and the regulatory response to odor complaints is are serious problems in this community based upon the statements at the legislative hearing and the issues conference, the petitioners have not proposed witnesses or proof with respect to odor impacts other than to generally state that they find AMR's mitigation measures insufficient.

Environmental Justice

Congressman Serrano, as well as many commenters at the legislative hearing, asked that the ALJ and DEC Commissioner look at the fact that the Interstate Materials Corp. (IMC) application for a proposed solid waste transfer station on Staten Island was deemed to have potential for significant effects on the environment so that a positive declaration was issued by NYSDEC and NYCDOS. A review of the AMR application materials and the notice of positive declaration and scoping meeting for IMC, indicate that these projects have similarities and differences. IMC, like AMR, is proposed to be sited in an area that is zoned for heavy industry by New York City. IMC currently operates a clean fill material transfer station close to the proposed site. AMR's proposed site is located in an area where there are approximately 21 other solid waste facilities. Interstate Materials Corp. is to be primarily a truck-based facility that will process almost 9,000 tons of solid waste per day including dredged materials, construction and demolition debris and putrescible solid waste. Both facilities propose dredging and are to receive barged materials and thus, will impact water resources. IMC is located near a public park and AMR is close to Tiffany Pier and visible to North Brother Island. The petitioner and those who spoke at the legislative hearing emphasized that while AMR is proposed to be located in a mainlypoor and minority community, IMC is located near a white community. These concerns form part of the basis for Congressman Serrano's position that issues of environmental justice must be addressed with respect to this application.

In addition to Congressman Serrano, NYLPI and ED raised the issue of environmental justice in their petitions. In its petition, the Bronx Borough President's office addressed "fair share," a policy that would require each borough to handle its part of the waste stream. New York City Charter § 203(a). Ms. Lowe stated that NEJA did not raise this issue due to lack of time and its belief that the other petitioners would sufficiently address it.

Background on Title VI Provisions and EPA Procedures

Title VI of the Civil Rights Act of 1964 provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.

In 1994, President Clinton issued Executive Order 12,898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." This Order requires Federal agencies to ensure compliance with Title VI for all Federally-funded programs that affect human health or the environment. EPA awards grants to New York and other states to administer programs under the Environmental Protection Agency's statutes. As a condition of receiving funding under these programs, state agencies must comply with EPA's Title VI regulations. EPA has determined that all program and activities of a state agency are subject to Title VI, even those programs that are not EPA-funded.

If EPA finds discrimination in a recipient's permitting program and the recipient does not come into compliance voluntarily, EPA is required by Title VI regulations to initiate procedures to deny, annul, suspend, or terminate EPA funding. 40 CFR §§ 7.115(e), 7.130(b). EPA may also refer matters to the Department of Justice. 42 USC § 2000d-1; 40 CFR § 7.130(a). Whether individuals may also seek relief in federal court based upon discriminatory effects is in question.(26) To obtain a finding from EPA, a party may file a complaint with EPA that sets forth the claim of discrimination.(27) 40 CFR § 7.120(d)(1). EPA's Office of Civil Rights (OCR) will investigate to determine whether the permit issued will create a disparate impact or add to an existing disparate impact on a racial or ethnic population. If no finding is made, the complaint is dismissed. If OCR makes an initial finding of discrimination, the recipient and the complainant will be notified and the recipient will be required to make a response within a certain time. The recipient will have to rebut the finding, provide a plan for mitigation, or demonstrate that there is an important interest in proceeding despite these circumstances. OCR will then have to decide if there is noncompliance or whether the recipient has made a satisfactory response. OCR will send a notice that may include recommendations for voluntary compliance or negotiations. 40 CFR § 7.115(c). If a resolution does not occur, OCR will issue a formal written determination of noncompliance. 40 CFR § 7.115(d). The recipient will have 10 days from receipt of this determination to comply or EPA will start procedures to terminate funding. 40 CFR §§ 7.115(e), 7.130(b). The recipient also may ask for a hearing before an ALJ and also appeal the ALJ's decision to the EPA Administrator. 40 CFR § 7.130(b)(1)-(3).

To date, EPA has not completed a Title VI investigation and in October 1998, President Clinton signed a bill containing a rider that placed a moratorium on EPA accepting new Title VI complaints until the agency issues final guidance on Title VI. See, Appropriations Act for Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies for Fiscal Year Ending September 30, 1999, Pub. L .No. 105-276 (H.R. 4194), 112 Stat. 2461, 105th Cong. tit. III (1998).(28) In 1998, in Select Steel, EPA did accept for investigation a complaint with respect to the siting of a steel mill in a minority community in Michigan. However, EPA dismissed this complaint in less than 3 months based upon a determination that the plant would not have an adverse impact on minority residents because the air permit involved would comply with the National Ambient Air Quality Standards in question. See, Letter from Ann E. Goode, Director, EPA's Office of Civil Rights, Re: EPA File No. 5R-98-R5 (Select Steel Complaint) to St. Francis Prayer Center (Complainant) and Michigan Department of Environmental Quality (Recipient). Thus, it appears when EPA finds that a proposed project meets relevant health-based standards, it will not find disparate impacts. See, The Law of Environmental Justice, supra, pp.49-50.

EPA's Interim Guidance for Investigating Title VI Administrative Complaints Challenging State Environmental Permits (Interim Guidance) sets forth five basic steps for determining whether a disparate impact exists.(29) The first step is to identify the affected population that is affected by the permit and the second is to determine the demographics of the affected community. The third is to determine what other facilities exist in the area that affect this population and are under the jurisdiction of the recipient. The fourth step is to determine whether persons protected by Title VI are being affected disparately. Finally, the fifth step is to decide whether the disparity is significant under Title VI.

The ECL and Environmental Justice

Environmental justice is not specifically addressed in the Environmental Conservation Law and in Title 6 of NYCRR. This void was the basis for my query of the parties at the issues conference as to how I was authorized by New York State law to address this important question.(30) In response, Mr. Torres indicated that 6 NYCRR § 624.4(c)(2) and the draft permit's requirements that the permittee comply with state and federal law provide a basis for this forum to address whether AMR is violating the constitutions of New York and the United States and Title VI. He also stated that 6 NYCRR § 624.4(c)(6)(i)(a) pertains based upon the irrationality of the determination of non-significance as compared to the Interstate project.

With respect to the Interstate project, Mr. Torres pointed to portions of the Notice of Positive Declaration and Scoping Meeting of January 12, 2000 (Issues Conference Exhibit 15), where it is indicated what the EIS would address: proximity to the Clay Pit Ponds Preserve, effects of the planned facility's discharge on the sewage treatment plant, and potential air quality impacts including those from on-site equipment. Mr. Torres stated his disagreement with the position of NYCDOS that because the Interstate project was truck-based, the two facilities were not comparable. He emphasized that the decision to require an EIS in the Staten Island project raised "serious concerns about the difference in treatment . . ." TR 486. He remarked on the number of existing solid waste transfer stations near AMR's proposed site that received permits without an EIS. And, he also stated that even though the AMR project may be situated on an area less than 10 acres, it is a large-scale facility. Mr. Torres noted that the residential are as located closest to the Interstate project are further than those nearest the AMR site.

With respect to the demographics of the community, most of the issues conference participants agreed that the AMR site is located in a community that is comprised largely of poor and minority residents.(31) There also was agreement that under SEQRA, the lead agency is obligated to look at the impacts on the community in which the proposed facility is to be located. The applicant agreed with both of these conclusions but stated that the first issue to examine is whether the project's impacts would be disproportionate on that community.

Department staff pointed to its environmental justice analysis that is appended to the negative declaration and stated its agreement with the applicant that the first step is to determine whether there are significant negative environmental impacts. Since the staff determined there would not be these effects, they did not find an environmental justice issue. Assistant Regional Attorney Nehila also reported that there had been a positive declaration issued for a proposed autoclave facility at 137 Viele Avenue. He further stated that two other facilities - one on Casanova Street and one in East Bay - were denied permits by the Department staff. Mr. Nehila explained that these facilities, like the Interstate project, were to be truck-based and staff had concerns about air pollution resulting from diesel emissions. He also stated that a full air analysis has been performed as part of the EAS for the AMR project. With respect to leachate, the Interstate facility did not have City approval to take leachate from the facility while AMR maintains that it did have that agreement. Interstate also exceeds the 10-acre threshold for Type I projects.

Deputy Commissioner Allan, from NYCDOS, stated that the triggering event for the positive declaration for Interstate was its plan to handle dredged spoils. Ms. Allan also made the point that an environmental justice complaint is addressed, as described above, in the context of an EPA administrative review which is triggered at the point a permit is issued and a complaint has been filed. She argued that it is not an issue to address in a state or local permit proceeding. In response to this comment, Mr. Torres remarked that Title VI does not require that the permit be issued prior to triggering action under this statute.

Ruling

In this administrative forum, I cannot address matters of constitutional import such as whether the granting of a permit to AMR would violate the Equal Protection Clause of the U.S. Constitution. 73 C.J.S. § 65 (1983). Rather, these administrative proceedings are governed by the State Administrative Procedures Act, the Environmental Conservation Law and the regulations that implement those laws and other relevant State laws. With respect to Title VI, based upon the Interim Guidance for Implementation of Title VI, EPA is responsible for investigating complaints of disparate impact.(32) The Department's decision to grant a permit in this matter would be potentially subject to EPA's jurisdiction under Title VI and DEC would wish to avoid the loss of funding that could result from a negative finding by EPA under Title VI. And, while the Department has no specific law or regulation that guide it with respect to Title VI concerns, it does have the State Environmental Quality Review Act.(33) Bills have been proposed, but not passed, to amend SEQRA to specifically require that an EIS examine whether a proposed action will cause disparate impacts on poor or minority communities, e.g., New York State Bill No. A01621, § 3 (Jan. 16, 1997). Without any specific state law or regulation or even federal case law or EPA opinion to guide, addressing the matter of environmental justice in this permit proceeding could be a daunting task.(34) But SEQRA already requires that agencies consider impacts to the environment including "land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." ECL §§ 8-0105(6), 8-0109. This is a very broad mandate and would appear to encompass the concerns of environmental justice that arise with respect to this application.

As noted by the applicant and DEC staff, the first matter to determine is whether the project may cause significant environmental impacts so as to also potentially cause disparate effects on the community. In court cases under Title VI, the first step for the plaintiff is to demonstrate that the defendant's facially neutral actions have a significant disproportionate adverse impact upon a protected class. See, The Law of Environmental Justice, Gerrard, (1999), p. 38 citing, inter alia, Scelsa v. City University of New York, 806 F.Supp. 1126, 1141 (SDNY 1992). By doing a proper analysis under SEQRA, the lead agencies will determine what impacts are to be expected from the project, whom they will affect and what measures must be taken to ensure that these effects are mitigated to the maximum extent practicable. These steps will ensure that environmental justice considerations are addressed.

In this matter, in its application, engineering report, environmental assessment and related documents, the applicant has addressed many impacts and issues of concern to the community such as odors, air pollution, water quality, and natural resources. As is discussed in other parts of this ruling, the co-lead agencies determined erroneously that the project would not have significant environmental impacts and thus, an EIS was not required. I am remanding the application back to staff for the purpose of a reexamination of its negative declaration. I believe that an environmental impact statement is warranted in an application of this scale. See, Miller v. City of Lockport, 210 AD2d 955 (4th Dep't 1994), lv to appeal den, 85 NY2d 807 (1995). AMR proposes to bring 5,200 additional tons per day into the community by use of a barge-to-rail system. The potential effects to the littoral zone, other natural resources as well as to the community due to the incremental addition of waste that may cause additional odors and air pollution particularly in the event that rail service is disrupted require the detailed review that an EIS will provide.

In March 2000, a report titled A Regulatory Strategy for Siting and Operating Waste Transfer Stations was prepared by the National Environmental Justice Advisory Council (NEJAC), a federal advisory committee established in 1993 to provide advice to EPA on matters related to environmental justice. NEJAC identified best management practices for waste transfer stations to mitigate impacts. See, report at pp. 21-26. It recommends that a best management practices manual address potential impacts resulting from operation of these facilities such as degradation of air quality, odors, noise, vectors, and truck transportation. These are precisely among the matters that the applicant and co-lead agency have examined and which should be the subject of an EIS.

The report also calls for strategies to address the problem of community impacts due to the clustering of transfer stations in certain low-income neighborhoods. This reflects what has been identified by many of the petitioners as well as members of the public who spoke at the legislative hearing as a key problem. This issue has not been sufficiently addressed by the review done of this project. The conclusion of the applicant and co-lead agencies is that AMR is a superior facility because it is not truck-based and thus, it will not add to the impacts of the other waste facilities. However, AMR will bring additional waste into a community already burdened by a great deal of it. If rail service does not work as expected, the draft permit condition allowing the unlimited contingent use of trucks will allow this operation to work as the other waste facilities currently do, thus negating, at least to some extent potentially, the key distinction.

The NEJAC report also identifies the need for public input early on in the consideration of a transfer station's permit application. See, id., pp.27-28. An obvious place to address this concern is to provide for scoping pursuant to 6 NYCRR § 617.8. In this way, the public can participate in the process of identifying all the issues that should be addressed in an EIS.

Many of the measures the NEJAC report recommends to mitigate the problems cited by communities regarding waste transfer station siting and operation have been proposed by the applicant and DEC staff in the draft permit. The report specifically cites to the use of marine transfer stations as a method to alleviate the impacts associated with truck-based facilities. In addition, such measures as load tarping, waste processing inside a building, and environmental monitors are also recommended. While the AMR facility may in many respects be state of the art in terms of its mitigation of many potentially negative impacts, there has been insufficient review of some of these impacts and the facility's operation to accept those conditions in lieu of a full review.

I find that environmental justice concerns are addressed by SEQRA in this context and thus, I do not find it appropriate to separately adjudicate them. While a comparison of the Interstate facility with the AMR project may be interesting, I do not find that it would be a wise use of resources to as this forum is not appropriate for adjudication of whether there has been a violation of Title VI. In the event that staff's redetermination results in a finding that an EIS is not necessary, after supplementation of the EAS and application, a hearing on the noted issues will provide for the development of a record on what impacts from this facility will result and whether the facility plan meets the applicable regulatory requirements.

Community Character

Zoning and Proximity of AMR Site to Residences and other Community Sites

In many ways, the issue of community character, as raised by petitioners NYLPI and Congressman Serrano is very similar to that of environmental justice. These parties argue that this project will be harmful to the community by adding to economic blight, creating health hazards, eliminating access to the waterfront and open space and discouraging more "sustainable" local development. NYLPI states that conflicts with rail usage and a negative environment caused by odors and other effects of the increased garbage will deter new business and cause current businesses to leave the community. As cited by NYLPI, in Chinese Staff and Workers Association v. City of New York, 68 NY2d 359 (1986), the Court of Appeals found that SEQRA requires the lead agency to address potential impacts of a project on "community and neighborhood character."(35)

In determining significance, the SEQRA regulations provide that "creation of a material conflict with a community's current plans or goals as officially approved or adopted"; or "the impairment of . . . community . . . character" indicate significant adverse environmental impacts. 6 NYCRR §§ 617.7(c)(1)(iv), (v). The Commissioner has decided that adopted local plans must be accorded great weight in determining the impacts of a project. See, In the Matter of Miracle Mile and the Town of Henrietta, Commissioner's Decision (1979)(proposal consistent with General Development Plan for Monroe County and Town of Henrietta Comprehensive Plan). See also, Horn v. IBM, 110 AD2d 87 (2d Dep't 1985) (Second Department held that Town's decision to change zoning to accommodate office complex was in conformity with Town plan - an EIS had been prepared); Kravetz v. Plenge, 102 Misc.2d 622 (Sup. Ct. Monroe Co. 1979) (supreme court held that City's amendment to zoning ordinance affecting an historic district was improperly based upon a conclusory environmental review that did not consider adequately the historic district).

In its EAS, the applicant stresses that the proposed project is in accord with the zoning - M3-1 - industrial - and is also consistent with prior uses at the site although the land has remained vacant for ten years. Issues Conference Ex. 6, p. I-1. The Honerkamp lumber warehouse is adjacent to the site and the New York Organic Fertilizer Company (NYOFCO) - a sludge pelletization plant - is a neighbor to the east. There are vacant property and railyards to the west of the project site. According to the EAS, within 400 feet from the site's perimeter are a vacant lot with debris piles, the railyard, a food distribution facility with truck loading docks, a warehouse northeast of the site as well as the lumber warehouse and NYOFCO. South of the facility site, as noted elsewhere in this ruling, are the North and South Brother Islands in the East River. Id., pp. I-2-3. Tiffany Pier, also discussed elsewhere in this ruling (at pp.12-14) is located about .25 miles to the east of the site. Id., I-4.

While mentioning that this project would be located in Community Board 2 and stating that the project has received support from two community groups (this is apparently not the case at least from the perspective of one of the groups - see, Issues Conference Ex. 23), in the EAS, AMR does not address any potential conflicts of this project with the residents in Hunts Point including the potential cumulative effects resulting from the addition of 5200 tons of waste a day. In fact, in the section on local community context, there is no mention of the proximity of residences to the project. While there are residences on the west side of the Bruckner Expressway from the project site, there are also residences north east of the site that are less than 3,000 feet away.

Plan for the Bronx Waterfront

During the issues conference, the parties referenced and presented a number of documents that concern planning for this area of the Bronx. Plan for the Bronx Waterfront (Issues Conference Ex. 29) is part of the 1992 Comprehensive Waterfront Plan (CWP) that presented long-range visions and practical strategies for development of the waterfront. Many of these goals were incorporated into the 1993 waterfront zoning amendments but by themselves, these plans are not officially adopted policy. General Counsel Terri Blank confirmed that the Plan for the Bronx Waterfront was not adopted by the City Planning Commission in her letter of March 21, 2000 to me. Issues Conference Ex. 33. The Plan for the Bronx Waterfront does identify Hunts Point's extensive and active industrial resources and draws attention to the need for improvements in truck, rail and barge transportation. While this report recommends maintaining and enhancing certain natural areas and parks, it stresses the revitalization of the working waterfront. Towards this latter end, this plan recommends that the South Bronx be designated as a Significant Maritime and Industrial Area (SMIA). It would appear that the AMR project would be consistent with the emphasis placed on industrial development of the waterfront contained in this plan.

Position of Bronx Borough President and Bronx Borough Board and the The New Waterfront Revitalization Program - A Proposed 197a Plan (WRP)

Ms. Blank acknowledged in her March 21st letter that the AMR facility is consistent with the 1992 CWP and the 1999 update known as the Waterfront Revitalization Program; however she stated that based upon the "minimal amount of water dependent industries . . . [in this area currently], the Bronx Borough President and the Bronx Borough Board object to language in those plans implying that the sites on the Bronx and East Rivers might be targeted for waterborne shipment of waste." This objection was formally expressed in the Resolution adopted by the Bronx Borough Board in January 1998 that opposed the New York City Department of City Planning's proposal to designate Hunts Point as a SMIA due to the potential for concentration of "unwanted municipal facilities in the area . . ." See, Issues Conference Ex. 34. In this resolution, the Board stresses the concentration of transfer stations that already exist in this area and its opposition to the "disproportionate distribution of solid waste handling facilities in the Bronx . . ." Id., p.2. Presumably, this resolution expresses the concerns of many who reside and work in the Bronx, particularly in Hunts Point. However, it is not an officially adopted policy of the City.

Despite the resolution passed by the Bronx Borough Board, The New Waterfront Revitalization Program - A Proposed 197a Plan (WRP) was approved by the City Council of New York on October 13, 1999. Pursuant to the Coastal Zone Management Act (CZMA), approval of this revised NYC coastal zone management plan is still pending from the NYS Department of State. This Department must ensure that any actions it approves in the coastal zone are consistent with an approved waterfront revitalization program. 6 NYCRR §§ 621.3, 617.11(e). Among the ten policies set forth in the City's revised WRP, policy 2 supports water-dependent and industrial uses in NYC coastal areas and includes SMIAs such as Hunts Point in the South Bronx. See, Issues Conference Ex. 35, pp. 12-14. Since this WRP has not been approved yet by the Department of State, for the purposes of consistency with the CZMA, the 1992 WRP governs. But for purposes of identifying an approved local policy that governs activities in the area of the application, it would appear the 1999 WRP does control along with the zoning that is in effect.

The Bronx Community District Needs

The Bronx Community District Needs (December 1998) is a community profile developed by district community boards to establish a basis for budget priorities. Because this document was referenced by a number of parties during the issues conference, I asked Ms. Blank to provide me with a copy and I have included it as Issues Conference Exhibit 92. The document includes a section on the Hunts Point area that addresses its history and development. The document states that the Borough and the Hunts Point Economic Development Corp. have rehabilitated a lot of old housing and have constructed new low-density housing in this area. The report notes the demographics of the area as mainly Hispanic (79%) and Black (19%) with a median age of 25.4 years. In addition, the report provides statistics on some of the significant problems of this area such as the lack of high school diplomas among the residents and the low median household income - $9,900 per annum. Poor health and health care as well as the incidence of violent crime are noted among the community's other important issues. The report comments on the City's designation of the waterfronts of Hunts Point and Port Morris as SMIAs and the residents' disappointment in this classification based upon the desire for more parkland and waterfront access for recreation. The report notes the lack of parkland and the proposal for a Hunts Point Riverside Park to address this scarcity. Finally and most notably, the report speaks to the high volume of diesel truck and concomitant air pollution and safety hazards and the concentration of solid waste facilities. Community District 2 has adopted a policy of zero tolerance for any proposed new waste transfer station in this district. Once again, this profile is informational only and thus, is not an official statement of how the community will grow. It is up to the City, in coordination with the community board, to decide new policy, law, or zoning and whether these views should be incorporated into such officially adopted law or policy.

The Bronx and the City's Solid Waste Management Plan

In 1997, Bronx Borough President Fernando Ferrer submitted The Bronx Solid Waste Management Plan to Mayor Giuliani asking that its recommendations be part of future revisions to the City's solid waste management plan (SWMP). See, Issues Conference Ex. 17. These recommendations stress waste reduction and recycling measures, the establishment of environmental benefit funds out of penalties collected from waste facilities for violations, and the participation of the community in the monitoring of waste handling facilities. And, this plan finds that there has been an undue burden of waste processors borne by Community Districts 1 and 2 in the South Bronx causing many negative effects on the quality of life such as vectors, odor, congestion and exhaust from truck traffic. Once again, this document contains recommendations to the City, but is not an officially adopted plan.

The City's draft modification to its SWMP, which was revised and made public in May 2000, proposes a borough-based waste plan that would mean that facilities like AMR would not be used for residential waste from outside the Bronx. However, in this document the City does find that use of the site for these purposes is consistent with the City's goals of making the waterfront into a working one. See, e.g., Section 6.16 of DEIS for SWMP, Issues Conference Ex. 100c.

Ruling

The application is for an industrial project that integrates water-dependent use and thus, appears to be in conformity with the officially adopted local plans such as the zoning and WRP. Thus, at least with respect to 6 NYCRR § 617.7(c)(1)(iv), the application appears in compliance with SEQRA. AMR has agreed to two of the recommendations contained in The Bronx Solid Waste Management Plan - community monitoring and an environmental benefit fund. See, draft permit condition no. 26 (Issues Conference ex. 8) and AMR's draft suggested permit conditions nos.2-4, 7 (Issues Conference Ex. 36). However, an EIS would provide a comprehensive basis for the development of permit conditions.

NYLPI has offered the testimony of longtime residents as well as experts from the Pratt Institute Center for Community and Environmental Development to speak to community character but does not specifically identify what these individuals would address. With respect to a hearing, I find the petitioners' offer of proof too vague to establish grounds for adjudicable issues.

SEQRA does not consider purely economic impact and thus, I do not find an adjudicable issue related to this matter. See, In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992). However, in an EIS related to this facility, an analysis of economic impacts of AMR's facility should be included so that there will be a basis for the balancing that occurs after the EIS's preparation. ECL § 8-0109. That is, to the extent negative environmental factors cannot be mitigated, economic considerations can play a role. See, Environmental Impact Review in New York, Gerrard, Ruzow, Weinberg at 5-109. In Meschi v. DEC, 114 Misc.2d 877, 879 (Sup. Ct. Albany Co. 1982), the court found that DEC had erroneously issued a negative declaration for a solid waste transfer station by not considering the allegations of the town assessor that property values would be lowered. The issue however is not property values but what environmental factors are involved that potentially result in such circumstances. In this application, the petitioners have only raised general claims that AMR's facility will cause economic detriment. However, with respect to specific impacts such as air pollution, I refer the reader to the sections of this ruling that address the environmental effects that are alleged to be the basis for damage to community character.

I did not find the offer of proof with respect to impacts on the Hunts Point Food Market persuasive. The remarks that were offered consisted largely of speculation and revealed a lack of review of the application. There was no support supplied for the theories that the AMR facility would cause vectors or odors at the food market which is located over 6,000 feet from the proposed site and where food handling is entirely indoors. As for potential conflicts with rail service for the Market, that matter is addressed elsewhere in this ruling. See, pp.23, 26-28.

As for health effects, this issue has been linked to air pollution throughout these proceedings and is addressed in the air sections of this ruling. With respect to open space, I determined above at pp. 12-14 that the project was misclassified as unlisted based upon its proximity to Tiffany Pier and an environmental impact statement should be prepared to address among other things the loss of littoral zone. If an EIS is not prepared, I have found an adjudicable issue with respect to natural resources. However, I do not find an issue regarding the loss of open space because the property in question is privately owned. Any potential use of this site for river access is speculative and cannot be used as a basis for the Department to deny the permit or establish additional conditions.

Proposed Permit Conditions

In their petitions, several parties, including the Bronx Borough President's Office and Environmental Defense, proposed specific permit conditions or limitations that should be required of AMR in the event the Department permitted the facility. Specifically, these measures related to offsets and throughput, restrictions on waste materials and mandated recycling, and enforcement provisions. ED submitted a list of draft permit conditions by e-mail dated May 9, 2000 and submitted revised versions of this list based upon comments made by the Bronx Borough President's office with its closing brief dated June 12, 2000 and by letter dated July 13, 2000. During the issues conference, the ALJ encouraged the parties to meet outside of the conference to discuss these conditions and others including those that the applicant submitted by letter dated March 30, 2000. On behalf of NYLPI, Ms. Suchman objected to such a meeting based upon the position of NYLPI that the negative declaration was in error. However, all agreed at the issues conference that a meeting without requiring any party to resign its position in this proceeding would be feasible. Yet, I do not know if such a meeting ever occurred.

Offsets

Bernd Zimmerman, Director of Planning and Development of the Bronx Borough President's Office, addressed this issue by pointing to a permit issued by DEC to Waste Management to operate its Harlem River Yard facility that included a condition requiring the permittee to reduce waste handling capacity elsewhere in the Bronx equal to what the new facility would be handling. (Issues Conference Exhibit 27, special condition no. 7). Mr. Zimmerman also stated that the AMR facility, if permitted, would undermine the principle of borough self-sufficiency in the then-existing City SWMP because the facility would accept waste from other boroughs. Also on behalf of the Bronx Borough President's Office, Ms. Caplan commented that in the event that the AMR facility did handle residential waste it would be subject to the City's Fair Share Rule.(36) Environmental Defense concurred with the offset requirement and recommended that it could be accomplished by the enforcement of the applicable regulations by DEC and the City resulting in a reduction of throughput of the other waste-handling facilities in this area. The staff provided that the Waste Management facility was accepting waste by truck and that was the impetus for this requirement. In addition, Assistant Regional Attorney Nehila stated that the facilities that Waste Management closed were its own.

NYCDOS pointed out that this requirement was imposed by the New York State Department of Transportation in its record of decision for the 99-year lease of the Harlem River Yard. Deputy Commissioner Allan stated however that her agency had no authority to impose offsets however meritorious they might be. The applicant agreed and stated that DEC would also have no authority to require such a condition. Mr. Healy emphasized that the applicant had agreed to a community host benefit condition that the community could use for environmental benefit programs including but not limited to the purchase and closure of these facilities. He emphasized that to require offsets of AMR would undermine its commercial viability and the applicant would object strenuously to such a requirement. TR 550-551. The Borough President's General Counsel Blank stated that the community host benefit funds should not be used for this purpose and in any event, the amounts garnered by this program would be insufficient (approximately $750,000 per annum is estimated).

Ruling

In response to my request for legal support for an offset requirement, General Counsel Blank cited to 6 NYCRR § 360-1.11 that addresses mitigation of adverse impacts. The regulation requires that each permit issued under Part 360 must mitigate, to the extent practicable, significant adverse impacts to "public health, safety or welfare, the environment or natural resources" and that the activity comply with other applicable laws. This regulation provides some examples of acceptable mitigation measures such as inspection, financial assurance, reporting, monitoring, and sampling. While the list is not exhaustive, there is no mention of offsets. In other program areas such as air pollution control, there are specific regulatory requirements for offsets. See, e.g., 6 NYCRR § 231-1.5. As noted by the applicant's counsel, such a requirement would place a tremendous financial burden on the applicant for which there is no legal authority. The Waste Management permit is not comparable as apparently, the permittee agreed to the measure and was able to shut its own facilities to comply with it. In addition, § 360-1.11(a) speaks to mitigation of significant adverse impacts - while I have found in this report that an EIS is necessary to determine the extent of impacts, it is premature to find that this facility will have such adverse impacts.

Enforcement Measures

As mentioned above in the section of this ruling regarding odor controls, there is a great concern among the petitioners and other commenters in this proceeding that the agencies with jurisdiction to regulate the waste handling facilities in the South Bronx are not up to the task of enforcement. The Bronx Borough President's (BBP) office staff conducted a windshield survey of such facilities in the Hunts Point peninsula in the summer of 1999. The BBP's staff started with documentation from DEC Region 2 that indicated the location of permitted facilities. The BBP staff discovered additional facilities that DEC had "closed" earlier but were still operating. In addition, the BPP staff observed violations such as dirty sidewalks, sidewalk obstructions, waste spills, open doors and gates, on-street truck queuing, dust emissions, dirty tipping floors, waste piles over the legal limits, and vectors. The BBP staff provided a list of facilities to DEC that were not permitted, not registered, or were open waste dumps. This personnel also determined that of the violations found, 60% were in Community District 2. This was not a clear statistic as Mr. Zimmerman indicated that this figure was based upon borough-wide violations but there was no indication of a borough-wide survey.

In addition to the special conditions in the draft permit that direct the facility to operate to minimize effects on the surrounding community, such as the odor requirements (special condition nos.31, 33, 37), the draft permit provides for the establishment of a fund for an environmental monitor (special condition no. 39). In addition, prior to the commencement of the issues conference, AMR submitted a proposed set of draft conditions. Issues conference exhibit 36. Among these proposals, AMR suggested that an AMR community advisory committee be organized (and funded out of the environmental improvement fund) to provide a communication avenue between the community and AMR. The CAC would also be the liaison between the community and the environmental conservation officer (ECO) assigned to this area of the Bronx and who would be responsible for investigating odor complaints related to the facility operations. If the ECO found such problems, he would be responsible for notifying AMR and AMR would be required to implement odor control measures set forth in the contingency plan and to submit a report to DEC. Mr. Healy explained at the issues conference that as a result of observations during the site tour, AMR was convinced that there should be an ECO assigned to the South Bronx that would address concerns regarding AMR and the other transfer stations in the vicinity. He expressed that AMR would be willing to help fund such a position. TR 1789-1794.

I don't find that there needs to be an adjudicatory hearing on the issue of enforcement. It is obvious to me as it appears to have been to almost all the parties that there are problems with enforcement of the environmental regulations with respect to the transfer stations in the area of the AMR facility. It appears to be a combination of lack of enforcement personnel and low penalties that fail to make a significant impression on these facilities to adhere to the law's requirements. AMR and ED have offered a number of significant conditions that would enhance the draft permit with provisions for better monitoring and enforcement. Throughout this ruling I have noted additional conditions that participants and I have suggested should be considered such as: additional limits on number of barges at facility, phase-in of the operation, unit train requirement, immediate notification to DEC in the event of a rail failure, immediate cessation of acceptance of waste in such circumstances, Department approval for truck usage, limit on truck usage, prohibition on idling, deterioration measures, PM2.5 monitor, and waste to leave railyard within 24 hours. Assuming that an EIS is prepared, there will undoubtedly be additional measures that would be incorporated into a draft permit and thus, it would be premature to attempt to revise the permit at this stage.

However, in the event that an EIS is not prepared, I direct the staff to draft a revised permit that reflects this ruling as well as the suggested conditions of AMR and ED. This draft permit should be circulated to all the participants in the issues conference and will be addressed in the future proceedings of this matter.

Sale of the EPIC Terminal

On pages 16-18 of its final brief, NYLPI raised a new issue regarding the sale of the EPIC Terminal in Newark, New Jersey. This facility was previously identified as a location for AMR to store extra intermodal containers. NYLPI claims that the sale of this terminal raises a significant question with respect to AMR's contingency plan and also raises certain financial and ethical concerns. NYLPI raises the latter concern with respect to the involvement of AMR's consultant in certain of these financial matters thus potentially raising an issue with respect to a conflict of interest.

In response, AMR states in letters dated July 25 and 31, 2000 (Issues Conference Exhibits 102a and 102b) that its compliance with 6 NYCRR § 360-11.2(a)(3)(vi) regarding identification of an alternative waste handling system would not be affected by this change of ownership because the facility would still be available for that purpose. AMR further argues that NYLPI fails to support its claim as to how the sale of the EPIC facility by certain AMR investors would affect AMR's compliance with draft permit condition no. 25(i) that requires AMR to provide certain financial assurances prior to construction.

Staff also submitted a response dated July 25, 2000 in which it stated that a transfer station's disposal sites often change during the duration of a permitted operation but before any change is made DEC must be notified. The facility must also demonstrate to DEC that the receiving facility will accept the waste and is permitted by local authorities to accept the waste before DEC approves such a change. 6 NYCRR §§ 360-1.7(a)(1)(ii) and 360-11.2(3)(i). With respect to the financial assurance matter, the staff contends that this is resolved with the $950,000 bond requirement in the draft permit that must be provided no less than 30 days prior to commencement of any construction authorized by the permit. This bond must be maintained for the life of the five year permit. With respect to any conflicts of interest vis-a-vis AMR's consultant and this application, Assistant Regional Attorney Nehila maintains that even if such an alleged conflict exists, it would only be relevant to the credibility of the consultant at a hearing.

Ruling

I don't find this brand new claim by NYLPI to be an adjudicable issue in this proceeding. This matter was raised for the first time in the very last submission by this petitioner. I authorized the participants to address only the specific matters that I outlined in my memorandum to the parties dated April 11, 2000. While NYLPI may have come to this SEC information late, the document that it submitted as attachment E to its brief indicates that the filing was dated May 22, 2000. I can see no reason why it was brought to the issues conference at the eleventh hour. Moreover, based upon the responses of staff and AMR, I do not find NYLPI's allegations to have sufficient merit to warrant further examination.

CONCLUSION

Based upon the factors I discuss above including the size of this project, the cumulative impacts with respect to odors and air pollution and the potential impacts on the natural resources near the site, I find that an environmental impact statement should be prepared. Section 624.4(c)(6)(a) of 6 NYCRR provides that the ALJ may review staff's determination of nonsignificance. I have found that the lead agencies' negative declaration is legally erroneous based upon the misclassification of the project and the failure to take a hard look at issues such as the potential impacts to the littoral zone and the potential cumulative impacts resulting from the contingent use of trucks and the additional waste load to this area. The threshold for requiring an EIS under SEQRA is low and this large solid waste management facility with all its potential impacts meets that threshold. As noted in the ruling, the Department staff must complete a Coastal Assessment Form as part of its redetermination consistent with 6 NYCRR § 621.3(a)(8).

The regulations do not provide me with authority to require the EIS. If after staff's redetermination, the outcome is the same, I have determined in this ruling that a number of specific issues require supplementation pursuant to 6 NYCRR § 621.15. These are:

  1. The rail component
  2. Issues Conference Ex. 79 - barge movement time line
  3. Clarification of weekend operations
  4. Transloading operation - Issues Conference Ex. 65
  5. Contingency truck flow
  6. Handling of unauthorized waste
  7. Deterioration factor
  8. PM2.5
  9. Role of Allied Waste
  10. Impact analysis of proximity of railyard to residences

It is premature to set a schedule with respect to this supplementation in light of anticipated appeals and the staff's redetermination. Once these matters are decided, if this process is to continue, I will reconvene the parties for a discussion on a schedule for supplementation, review and comment by the issues conference participants, and my supplemental issues ruling on whether an adjudicatory hearing is needed for these matters.

As noted in this ruling, so far, I do find two issues for adjudication: 1) the nature of the benthic macroinvertebrates at the site and how and if that community supports other organisms that would be adversely affected by the project and 2) whether the emissions of the yard hostlers have been correctly analyzed with respect to idling. Obviously, if an EIS is to be prepared, these matters will be further analyzed in that document and there will not be a hearing at this time. In the event staff declines to require an EIS, these matters along with any of the supplemented issues I decide require adjudication, will be heard at the same time. With respect to all other proposed issues, I have declined to find them to be adjudicable matters. For any proposed issues not explicitly addressed in this ruling, I have considered them and found them not to raise matters for adjudication.

Section 624.4(c) sets the standards for adjudicable issues. Because the staff has determined that the project meets applicable regulatory standards, the burden is on the intervenor to show that the issue proposed is both substantive and significant. 6 NYCRR §§ 624.4(c)(4). An issue is substantive if there is sufficient doubt about the applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further based upon the full issues conference record. 6 NYCRR § 624.4(c)(2). An issue is significant if the adjudicated outcome can result in permit denial, modification to the project or imposition of significant conditions in addition to those staff has already proposed. 6 NYCRR § 624.4(c)(3). The lack of information on certain topics requires that I seek additional information from AMR. 6 NYCRR § 624.4(c)(7). And, with respect to the two issues concerning idling and the biological community at the site, I found that the conflicting opinions of the applicant and the expert testimony propounded by the intervenors sufficient to require that there be further inquiry. Dr. Cantelmo's opinion that there needs to be further investigation of the site to determine the nature of the project's impacts on the littoral zone is sufficient for me to doubt the project's compliance at this time with the requirements of 6 NYCRR Part 661 and SEQRA. Likewise, the conflicting information on the activity of the yard hostlers and whether idling time was appropriately calculated makes it necessary to find this to be an adjudicable issue as well.

I find that it is premature to rule on party status. Even if the staff determines an EIS is not necessary, I will have to issue a supplemental issues ruling depending upon what issues are supplemented and which I ultimately decide become adjudicable. This outcome will determine which participants have party status.

In the event that an EIS is not forthcoming, with respect to draft permit conditions, I am directing staff to include the following:

  1. Further limitation on the number of barges
  2. Barge covers
  3. Phase-in of the project
  4. Unit train requirement
  5. Immediate notification requirement to DEC - failure in rail service
  6. As soon as practicable - cessation of waste acceptance

Rail service failure

  1. Department approval for truck usage
  2. Limit on use of trucks
  3. Prohibition on idling
  4. Maintenance requirement to address deterioration emission factor
  5. PM2.5 monitor at facility
  6. Waste to leave railyard within 24 hours once on unit train

In addition, staff is to incorporate the conditions proposed by AMR in its submission of March 30, 2000 as well as to consider the proposals of ED in its submission of July 13, 2000. With respect to these proposals, staff is to specifically frame conditions relating to barge covers, a community advisory board and environmental monitor, penalties in the event that AMR does not comply with the time requirements for removing waste from the facility and the railyard and notification to the community in the event AMR seeks to modify its permit/operation.

APPEALS

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis. 6 NYCRR § 624.8(d)(2). Ordinarily, expedited appeals must be filed to the Commissioner in writing within five days of the disputed ruling. 6 NYCRR § 624.6(e)(1).

Allowing extra time due to the number and length of these rulings, any appeals must be sent to the Commissioner John Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York 12233-1010) before 5 p.m. on September 28, 2000.

The parties shall ensure that transmittal of all papers is made to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No submissions by telecopier or e-mail will be allowed or accepted.

Appeals should address the ALJ's ruling directly, rather than merely restate a party's contentions. To the extent practicable, appeals should also include citations to transcript pages and exhibit numbers.

TRANSCRIPT CORRECTIONS

While reviewing the issues conference transcript, I corrected various apparent transcription errors. As soon as I am able, I will circulate a list of these corrections, which shall be considered made unless I receive objections to them. My list is not meant to be comprehensive and if any party has found additional errors that it wishes to note, please submit your own lists. If there are any objections to any of these corrections, please make them in writing so that I can rule on them and the transcript can be settled.

/s/
By: Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
August 25, 2000

TO: Attached Service List

1. While the hearing was noticed to commence at 6:00 p.m., the late arrival of the translator delayed the start.

2. The Corps elected to use DEC's legislative hearing to take comments on AMR's proposal to dredge and dispose of sediment in the East River and to install bulkheads, a pier, and walkways pursuant to Section 10 of the Rivers and Harbors Act of 1899 and the Clean Water Act § 404.

3. That being said, attorney Kevin Healy, on behalf of AMR did reserve the applicant's right to challenge the standing of any intervenor should the matter result in a judicial proceeding.

4. In a letter dated May 22, 2000, Ms. Suchman on behalf of NYLPI argued that the additional material discovered by DOS should not be considered as part of the issues conference record. In the alternative, she proposed that these materials be subject to discovery to determine how they were relied upon by the co-lead agencies. NYLPI also asked for additional time to respond to these materials. The ALJ denied the request for depositions on these materials while granting the request for additional time to respond as set forth above.

5. Mr. Tripp submitted a letter to me dated August 4, 2000 with an attachment concerning the response of CSX Transportation to certain proposed permit conditions. Given the lateness of this submission, I have not made it a part of the issues conference record.

6. At the issues conference, NYLPI supported the continued request of NEJA for an adjournment in order to obtain the assistance of a rail expert. ED also requested additional time to consult with its air expert, Mr. Daniel Gutman.

7. And, due to the need to schedule a number of additional days for the issues conference, the rail and and much of the air matters for which these petitioners requested additional time were not discussed until April 4-6, 2000.

8. In a letter dated July 12 in response to my request for information on the revised SWMP, Deputy Commissioner Allan stresses the independence of the permit review process from the SWMP modification process. See, Issues Conference Ex. 99. While this letter elicited a response from Ms. Horwitz of NYLPI dated July 18, 2000, I had not requested any and will not consider these cumulative arguments.

9. As stated, most of this waste is residential; however, Visy Paper, a private recycler, does have a contract with New York City to take waste paper with two private barges through a City MTS.

10. There was also mention of Barretto Point at the Legislative Hearing and in these proceedings. Barretto Point is 13 acres of brownfield waterfront property adjacent to Tiffany Pier that the City is attempting to reclaim for two purposes - a park and expansion of the City's Hunts Point sewage treatment plant. Because it is not currently designated as park or open space, this area could not serve as the basis to classify the project as Type I pursuant to § 617.4(b)(10).

11. It is true as counsel Healy pointed out that in Lorberbaum a small portion of the golf course phase of the project did meet the border of Valcour Bay - an historic site. However, it is clear from the Appellate Division's interpretation of the regulation and its reference to the important visual impacts that the limited physical connection was not critical. See, 182 AD2d at 899-900.

12. In the Environmental Assessment, the applicant states at p.I-3 that the islands are located south of the site in the East River. The EA notes that combined the two islands form one of the largest waterbird rookeries in the region. The assessment concludes that the major shipping channel existing between North Brother Island and the facility, the distance between the areas, the use of barge covers, and the enclosed nature of the facility indicate that there will be no adverse impacts to these resources resulting from AMR's activities.

13. In these respects, this matter differs from the circumstances in the Interim Decisions of the Commissioner in Application of William W. Reidemeister and William Hagerman, 1983 WL 166633 (no CAF prepared and analyzed before determination of non-significance); Application of Ben Heller, 1983 WL 16635 (applicant directed to prepare CAF and submit it to staff so that staff can make a re-determination on significance).

14. On August 7, 2000 I received two letters from Mr. Tripp regarding CSX's response to ED's proposed permit conditions. While the content of these letters would certainly contribute to a discussion of permit conditions with respect to the rail component of this operation, in fairness to all the participants, I am not making it part of the issues conference record because the record was closed on July 31, 2000. I had made clear in my letter of July 25, 2000 that after AMR's submission of its reply to NYLPI's unsolicited comments in its closing brief the record would close. Of course, this decision is not meant to deter any of the participants from discussing permit conditions that would address these concerns.

15. At the issues conference (TR 962-963), Mr. Healy responded to my stated concerns with respect to lack of information in the application materials with respect to the rail component by stating that 6 NYCRR § 624.4(c)(2) requires the ALJ to look at the entire issues conference record in assessing adjudicable issues. However, I do not believe that this regulation means that the application itself can rely on the issues conference record for supplementation. And, clearly, as stated above, SEQRA requires that the lead agency perform its analysis of potential impacts prior to its determination of significance which would be before any issues conference.

16. While Mr. Whitehead's resume was offered (Issues Conference Ex. 30) and it appears that he has much relevant expertise, at no time did he attend the issues conference, nor did NYLPI or NEJA provide a written or oral summary of what his testimony would address. While I fully appreciate the great expense that is incurred by the employment of experts in these proceedings, that cannot be grounds to require less than is provided in 6 NYCRR § 624.5(b)(2)(ii).

17. In referring to Mr. Akins here, please note that it was Ms. Lowe who spoke to these issues at the conference on March 14. But Ms. Lowe made clear that these concerns were those raised by Mr. Akins who did attend the issues conference on April 4 when he addressed these concerns again. The transcript pages reflecting his statements on April 4 begin at TR 991.

18. Section 201.1(bk) of 6 NYCRR defines "potential to emit" as "[t]he maximum capacity of an air contamination source to emit any regulated air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the emission source to emit a regulated air pollutant, including air pollution control equipment and/or restriction on the hours of operation, or on the type or amount of material combusted, stored, or processed, shall be treated as part of the design if the limitation is enforceable by the department and the administrator."

19. Ms. Warren has been involved in analysis of environmental issues with respect to sources such as municipal waste incinerators and dry cleaners. She is a registered nurse with a masters degree in environmental health science (industrial hygiene).

20. Ms. Warren referred to 4 million as the number for the air handling system that was to be found in the February 25, 1999 EAS air quality analysis backup. Mr. Ryan corrected this figure by stating it should have been 3.4 million cubic feet as the volume of the building with 230,000 being the correct figure for the ventilation system. This figure was correctly stated in the Engineering Report.

21. In the applicant's submission of April 28, 2000, Operational Impact Assessment Regarding Draft Permit Condition 31 Interpretation, AMR provides additional information that "[p]usher fans, to the extent deemed appropriate, could be located along the interior side of the east and west walls of the building, where they would "push" air across the unloading barge and into the . . .manifolds at the unloading platform and conveyers."

22. During contingency situations, that is when the waste would have to be recontainerized into 20-foot containers if it had to be trucked rather than sent out by rail, AMR will have to back the yard hostler into the building through a door that would remain open until the waste was emptied back into the barge. Supra, pg.36.

23. At the issues conference, the applicant stated that Allied Waste would be responsible for the transportation of the waste and its disposal, once it was loaded on the rail cars. I have not found anywhere in the application materials where this was addressed. As the potential environmental effects of this facility obviously go beyond the boundaries of the building and in fact go into the railyard and beyond, the status of Allied Waste's relationship to this project should be clarified. This appears to be a deficiency of the draft permit and the application. The Department has placed a great deal of importance on the compliance history of permit applicants. Without an opportunity to examine the record of the entity that has responsibility for a project or segment of it and its role, the Department is stymied in its ability to ensure that this entity will carry out the terms and conditions of any permit that may be issued. See, e.g., In the Matter of the Application of SES Brooklyn Company, L.P. and the City of New York, Commissioner's Fifth Interim Decision (September 9, 1993), p.8; In the Matter of Application for permits by Waste Management of New York, LLC, Interim Decision (May 15, 2000).

24. Special Condition no. 26 provides that AMR has committed to contributing a fee of $0.50 for each ton of waste received at the facility into an Environmental Improvement Fund that will be used for projects that benefit the residents of the South Bronx.

25. There was some debate on this point at the issues conference. The staff acknowledges that about half of that amount of transfer stations exist. However, the intervenors also consider unpermitted facilities along with other types of waste handling operations that may only require a registration from DEC. Both the City and State representatives asked for and were supplied with information from the intervenors regarding alleged unpermitted operations. See, Issues Conference Exs. 45, 75, 76, 77.

26. In Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), vacated, 119 S. Ct. 22 (1998), the Third Circuit had found such a private right but on appeal, theU.S. Supreme Court determined that the case was moot because the Pennsylvania agency revoked the permit in question. In doing so, the Court vacated the Third Circuit's decision. See also, NEJA v. Guiliani, 504 F. Supp 2d 250 (SDNY 1999).

27. I understand that one or more of the petitioners has already filed a complaint related to AMR's application. However, until such time as DEC issues a permit for this facility, my understanding is that pursuant to the Interim Guidance, EPA will not proceed on this complaint.

28. EPA recently published notice of revised guidelines for processing Title VI complaints. The public comments period ends August 28, 2000. Once EPA completes this rulemaking process, the newly revised guidance will replace the Interim Guidance upon which the moratorium was placed. See, 65 Fed Reg 39650-01, 2000 WL 817659.

29. By resolution dated March 26, 1998, the Environmental Council of the States determined that EPA's interim guidance was not workable and should be withdrawn based upon potential conflicts with existing programs such as zoning laws, brownfield redevelopment programs, and other environmental statutes. ECOS - Resolution Number 98-2.

30. New York State has formed an advisory group on environmental justice but it is in the formative stages of conducting public meetings and has not issued any guidance on State permitting matters.

31. NYCDOS expressed some uncertainty with respect to whether under the Title VI criteria "the community" would be defined as Hunts Point or would encompass a larger area.

32. Pursuant to Part 602 of Title VI, EPA has promulgated regulations that prohibit a recipient agency from engaging in practices that result in disparate effects including the siting of a facility where it will have discriminatory effects; thus, discriminatory intent need not be established to find a violation of Title VI. 40 C.F.R. § 7.35(b).

33. The Nuclear Regulatory Commission has applied the Interim Order by performing an analysis as part of its environmental impact review under the National Environmental Policy Act (NEPA).

34. In response to Mr. Torres' statement that general provision number 5 in the draft permit requiring compliance with all State, local, and federal laws is a ground for Title VI jurisdiction here, I find that this condition puts the prospective permittee on notice of other potential obligations. It does not however mean that the Department has plenary jurisdiction to consider any and all other legal requirements.

35. In Matter of Lane Construction Corp. v. Cahill, 270 AD2d 609 (3d Dep't 2000), the Appellate Division reaffirmed that community character is certainly a valid consideration under SEQRA in upholding the Commissioner's denial of a mining permit that would have disturbed historic and aesthetic attributes in a community. However, in Lane, the intervenors focused very particularly on the specific effect of the mine's proposed removal of a mountaintop with the presentation of a visual expert.

36. Ms. Caplan was referring to § 203 of the City Charter that provides for City Planning Commission rules requiring the fair distribution of city facilities. However, based upon the new draft SWMP that does not provide for AMR's handling of City waste, this provision would be inapplicable to the AMR facility.

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