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USA Waste Services of NYC, Inc. - Ruling, June 2, 1998

Ruling, June 2, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of USA Waste Services of NYC, Inc.
for a permit to Construct and Operate a Solid Waste Management Facility
pursuant to Environmental Conservation Law Article 27
(Collection, Treatment and Disposal of Refuse and Other Solid Waste Management)
and Title 6 of the Official Compilation of Codes Rules and Regulations of
the State of New
York, Part 360

Memorandum
and
ORDER
(Briefing Schedule)

File No. 26101-00013/00008

THE PROPOSED PROJECT and PERMITS SOUGHT

USA Waste Services of NYC, Inc., 2 North 5th Street, Brooklyn, NY 11211 (the "Applicant") seeks a permit to Construct and Operate a Solid Waste Management Facility from the Department of Environmental Conservation ("NYSDEC"). Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste Management); and Article 8 (State Environmental Quality Review Act, "SEQRA"). Also, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 360 (Solid Waste Management Facilities); and Part 617 (SEQR).

The Applicant proposes to retrofit an existing structure, currently housing a NYSDEC-registered paper and corrugated cardboard recycling operation, to accommodate both the recycling activity and a new solid waste transfer station. The transfer facility will have a daily throughput capacity of 5,350 tons per day of putrescible solid waste. Both the recycling operation and transfer station will be fully enclosed in the newly-renovated building located at 2 North 5th Street, Brooklyn, Kings County, NY.

PROCEEDINGS

During January and February, 1998, NYSDEC Region 2 Staff ("Staff" or "NYSDEC") received an application for the proposed project consisting of a "Supplement to the Environmental Assessment Statement," a 2 volume "Engineering Report," and a letter from the Applicant authorizing its consultant to act in its behalf (Exhibits 3A, 3B, 3C and 3D in the record). On March 4, 1998, NYSDEC and the New York City Department of Sanitation ("NYCDOS"), acting as Co-Lead Agencies under SEQRA, caused notice of a Conditioned Negative Declaration for the proposed project to be published in the Environmental Notice Bulletin ("ENB").

On February 26, 1998, the NYSDEC Office of Hearings and Mediation Services received Staff's request to schedule a public hearing. On March 2, 1998, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

A combined Notice of Public Hearing and Notice of Complete Application(the "Notice") was issued March 6, 1998, and was published March 17, 1998 in El Diario; March 18, 1998 in the ENB, the New York Daily News (Brooklyn Edition) and the Greenpoint Gazette & Advertiser; and March 20, 1998 in Brooklyn Jewish Week and Nowy-Dziennik. Notice was also directly mailed March 11, 1998 to the clerk and/or chief executive officers of the Borough of Brooklyn and Kings County, as well as to other persons deemed interested in this proceeding.

The Notice indicated Staff's tentative determination that the proposed project, if carried out in accordance with the conditions of Staff's Draft Permit, would meet all the applicable statutory and regulatory requirements without variance and, therefore, Staff proposed to issue the requested permit. The Notice required that petitions to intervene in these proceedings be filed by Noon, Thursday, April 23, 1998, and that written public comments on the proposed project be received by the ALJ at or before the hearing.

Following publication of the Notice, Staff received requests for a change of venue for the public hearing. After the ALJ consulted with Staff and the Applicant, the location of one of the public hearing sessions was changed to accommodate what was expected to be a large number of people, and the new location was advertised in the same publications that published the Notice.

The ALJ also received several requests for adjournment of the Issues Conference from potential petitioners, which he denied with the proviso that the concerns raised could be addressed at the conference. Excluding the requests for adjournment, no written comments on the application were filed prior to the hearing.

A petition for amicus party status was filed by the NYCDOS.

A consolidated petition for full party status was filed on behalf a large number of elected officials, community organizations and individuals (the "Consolidated Intervenors" or "Intervenors"). The petition specifically named the petitioners to be: Hon. Howard Golden, President of the Borough of Brooklyn; Hon. Sheldon Silver, Speaker of the New York State Assembly; Hon. Nydia Velazquez, Member of Congress from the 12th District of New York; Hon. Joseph R. Lentol, Member of the New York State Assembly for the 50th District; Hon. Martin Connor, Member of the New York State Senate for the 25th District; Hon. Joan Millman, New York Assemblywoman for the 52d District; Hon. Felix Ortiz, New York Assemblyman for the 51st Assembly District; Hon. Victor L. Robles, New York City Councilman for the 34th District; Hon. Kenneth Fisher, Member of the New York City Council for the 32nd District; Hon. Angel Rodriguez, Member of the New York City Council for the 38th District; Hon. Stephen Di Brienza, New York City Councilman for the 39th District; Hon. Kathryn E. Freed, New York City Councilwoman for the 1st District; Neighbors Against Garbage ("NAG"), an unincorporated association of persons who live or work in the north Brooklyn communities of Williamsburg and Greenpoint; El Puente de Williamsburg, Inc. ("El Puente"), a non-profit corporation and community group; Make a Difference Community Action Project ("MADCAP"), an unincorporated volunteer association of residents of the Williamsburg community of Brooklyn; Williamsburg Around the Bridge Block Association ("WABBA"), an unincorporated association of persons who live or work around the Williamsburg Bridge in Brooklyn; Northside Community Development Council, Inc., a non-profit corporation and community group; the Watchperson Project, a not-for-profit corporation dedicated to protection of the environment and public health in the Greenpoint/Williamsburg section of Brooklyn; The Sierra Club; the United Jewish Council of the East Side, Inc; the South Manhattan Development Corporation; Katherine and Alex Kudiash, and Phil Smrek, who reside directly across the street from the proposed transfer station.

The ALJ convened the public hearing on Wednesday, April 29, 1998 at 2:00 PM at the Williamsburg Art and Historical Council, 135 Broadway, Brooklyn NY 11211, and again at 7:00 PM at the Harry Van Arsdale High School, 257 North 6th Street, Brooklyn, NY 11211. DEC Staff were represented by Laurieann Silberfeld, Esq., Regional Attorney. The Applicant was represented by Sive, Paget & Riesel, P.C., David Paget, Esq., of counsel. No comments were made at the afternoon session. The evening session was attended by an overflow crowd estimated in the news media at 1,200 to 2,000 people. Sixty-one comments were taken at the evening session before it concluded after 11:00 PM. Several of the speakers were elected officials from the community, including the Borough President. To accommodate the large number of persons wanting to make statements but were unable to wait, the written comment period was extended for one week. Numerous written comments were filed with the ALJ both at the hearing and in the extended comment period. Opposition to the proposed project was virtually unanimous.

The issues conference was convened at 9:30 AM Thursday, April 30, 1998, at the Williamsburg Art and Historical Council. DEC Staff and the Applicant appeared through their aforementioned representatives. The NYCDOS appeared through the City of New York Law Department, Susan C. Moon, and Robert Orlin, Esqs., of counsel. The Consolidated Intervenors appeared principally through Ward, Sommer & Moore, LLC, Douglas H. Ward, Esq., of counsel. Other attorneys representing the Consolidated Intervenors were: Frank J. Pannizzo, Esq., Counsel to the President of the Borough of Brooklyn; Brooklyn Legal Services Corporation A, Foster Maer, Esq., of counsel; New York Lawyers for the Public Interest, Sam Sue, and Edward Copeland, Esqs., of counsel; Finder and Cuomo, LLP, Matthew A. Cuomo, Esq., of counsel; Rosalind Rowen, Esq., Sierra Club; and Samara Swanston, Esq., The Watchperson Project, Inc.

At the issues conference, the relevant documents were identified and potential issues were discussed. No one contended that the then-named Consolidated Intervenors did not have the "environmental interest" required to participate in an adjudicatory proceeding.

The issues conference was continued on May 4, 1998, at the Brooklyn Borough Hall, 209 Joralemon Street, Brooklyn, NY. Community Board #1 was added to the list of Consolidated Intervenors over the objection of the Applicant. The Consolidated Intervenors also submitted other documents to supplement their original petition, which was objected to by the Applicant. The discussion, however, was confined to and completed on the issues broached in the original petition.

The issues conference was adjourned on May 4, with the ALJ advising the participants that he would determine whether or not the Consolidated Intervenors' supplemental documents should also be considered (with an opportunity for the other participants to respond), and what, if any, matters could be resolved immediately and what may need further briefing.

POSITIONS OF PARTICIPANTS AT THE ISSUES CONFERENCE

NYSDEC and NYCDOS, as "Co-Lead Agencies" under SEQRA, both agreed that they were "jointly and severally" responsible for the overall environmental review of the proposed project. Their Conditional Negative Declaration ("CND") for the proposed project indicates their determination that, subject to conditions specified in that document, the construction and operation of the proposed project would not have a significant adverse impact on the environment.

NYSDEC Staff have also determined that the proposed project, if carried out in accordance with the terms of its Draft Permit, meets all statutory and regulatory requirements within NYSDEC's purview.

The Applicant agreed to accept the terms and conditions contained in both the "CND" and the Draft Permit.

Applicant and the Co-Lead Agencies agreed that the agencies' SEQRA determinations rested on the Applicant's Supplement to the Environmental Assessment Statement ("SEAS") and its accompanying 2 volume engineering report. They also indicated, however, that "background" information previously submitted and not identified on this record as part of the application may also have been relied upon by the Applicant and the Co-Lead Agencies for the purposes of evaluating environmental impact. The Applicant requested the opportunity to put in the record such information as needed to refute assertions of the Intervenors. The Consolidated Intervenors indicated that they were unable to receive timely access to this information through Freedom of Information Law procedures, and cited this as reason to be given further opportunity to raise issues. NYCDOS responded that the FOIL request to it was made too late. Applicant, NYSDEC and NYCDOS assert that this background information is not required to be part of the application. The Intervenors' alleged lack of opportunity to assess underlying information was threaded through the discussion on the various issues that the Intervenors attempted to raise.

Segmentation, Cumulative Impacts, TMF

The Intervenors, citing SEQRA Handbook criteria, said that the Truck Maintenance Facility ("TMF"), indicated in plans for an adjoining parcel of land (with the existing TMF on the project site to be raised), must be considered to be part of the proposed project, and that considering it separate is improper "segmentation" (simply, the dividing of a project with potentially significant environmental impact (requiring an environmental impact statement) into separate smaller projects, none of which by themselves would be considered significant). The Applicant and Co-Lead Agencies contended that the TMF is a separate project, does not depend on the proposed project, and has always been represented as such.

The Intervenors argued that the "cumulative impacts" of the TMF, proposed project, and the registered existing (and to-be-permitted) recycling facility were not considered. Applicant and the Co-Lead Agencies agreed that because "baseline" measurements were taken while the existing TMF and recycling facilities were operating, "cumulative impacts" have already been accounted for.

The Intervenors further argued that if the TMF is considered to be part of the proposed project, the total floor area would exceed the SEQR threshold for a "Type I" action, which is ineligible for "CND" treatment and which usually requires preparation of an Environmental Impact Statement.

To avoid further concerns related to the TMF, the Applicant asserted that the TMF would not be built.

"Designated Open-Space" and "Type I"

Pointing to a memorandum of understanding between the governor, senate majority leader and assembly speaker indicating that the Eastern District Terminal ("EDT") site (which includes the project site) would be eligible for funding from the 1996 Environmental Quality Bond Act; and NYSDEC's draft State Open Space Conservation Plan which identifies the EDT as park land; the Intervenors argued that the proposed project will be located contiguous to "designated open space," reducing the 240,000 square ft. threshold for a type I action to only 60,000 square feet. Such a reduced threshold would make the proposed project a "Type I" action, even without the TMF. Thus, the Intervenors want the application remanded to the Co-Lead Agencies for an Environmental Impact Statement. While no one disputed that the proposed project would exceed 60,000 sq. ft., NYSDEC and the Applicant argued that the contiguous area had not been publicly "designated" as open space because it had not yet been acquired for, or formally dedicated(through zoning or otherwise) to, open space and, thus, the reduced threshold would not apply.

Numbers of Trucks, Traffic and Air Quality

Based on the proposed throughput tonnage of the facility, the capacity of NYCDOS trucks, and indications in the application that the facility may receive waste from NYCDOS, the Intervenors contended that the Applicant's estimate of truck trips to and from the facility was erroneously low. The Intervenors contended that the allegedly erroneous estimate caused the assessments of air pollution and traffic to also be erroneous, and indicated they were prepared to challenge the assessment of these impacts with expert testimony. (The Intervenors also allege this with regard to noise in their supplemental petition, however, the other participants have not yet had an opportunity to respond to this.)

Regarding traffic, the Intervenors questioned the choice of the particular intersections that were analyzed contending that the chosen intersections were underutilized.

Regarding air pollution, the Intervenors argued that a greater number of truck trips would cause more trucks than estimated to idle in the queue, increasing pollutant emissions. The Intervenors indicated that they were not relying on the National Ambient Air Quality Standards ("NAAQS") to determine the significance of the proposed project to air quality.

The Applicant submitted documentation from a prior application indicating that its estimate of truck trips was based on 30 cubic yards per truck. This amount was divided into an estimate of the total facility throughput expressed in cubic yards to derive the number of truck trips. Staff indicated this was reasonable based on their experience. Regarding air quality, the Applicant argued that even if its estimate of truck traffic was wrong, the Intervenors had shown no significance to their contention because they did not show that any NAAQS would be exceeded. To avoid having to deal with the contentions concerning its estimate of truck traffic, the Applicant offered to limit the number of trucks trips associated with the proposed project to that which was stated in its SEAS.

Community Character, Plans and Goals

The Intervenors contended that the "CND" did not adequately address negative impacts on the existing and future character of the community and neighborhood surrounding the project site and its impacts on "open space." They argued that the Williamsburg area has evolved into a vital and desirable residential area and that heavy industrial use is not comparable with the change in the community. The Intervenors noted that the proposed project conflicts with Community Board #1's ("CB1") draft "197A Plan" which calls for open space, waterfront public access and rezoning for lighter uses. (A CB is authorized to develop formal zoning recommendations.) They argued that this plan reflects what the neighborhood has become. The Intervenors again noted the identification of the EDT for acquisition for open space. The Intervenors also contended that the City Planning Department has applied to rezone the area and argued that this should have been discussed. The Intervenors propose to offer the statements of residents, publicly available documents, and the testimony of planning experts, petitioning elected representatives, and one of the authors of the "197A Plan" to establish their contentions.

NYCDOS and Applicant noted the SEAS' land use map and description of existing conditions and analysis of neighborhood character. Applicant claimed that the New York City Comprehensive Waterfront Plan has no application to this location and the proposed facility. NYCDOS argued that the Waterfront Plan makes a recommendation to identify areas for further study within the Department of City Planning, and that it doesn't constitute a recommendation by City Planning for any rezoning or outside action at all. NYCDOS asserted that there is no pending Department of City Planning recommendation to rezone the area, and, because it has not yet been voted upon by CB1 and gone through other stages of approval, no "197A Plan." Applicant and NYCDOS pointed to the earlier use of the site as a 2,000 ton per day transfer station by NEKBOH, and Applicant argued that this did not prevent the transformation of the neighborhood that the Intervenors spoke of.

NYSDEC noted that in the criteria for determining significance at 617.7(c)(1)(iv), one has to look at whether or not there is a creation of material conflict with the community's current plans or goals as officially approved or adopted. NYSDEC argued that if the Waterfront Plan is a recommendation at best, then it's not officially approved. NYCDOS claimed that the Waterfront Plan was "put out for suggestion" and the Applicant claimed that it "has no official status."

Need

Citing 617.9(b)(5)(i), the Intervenors claimed that there is no public need for this project, and offered the testimony of an expert to establish such. Applicant countered that one only has to look at need in the context of an EIS.

Safety

Interpreting "public safety" to apply to "on-site safety," the Intervenors claimed that the facility would be unsafe (i.e., not protective of the public health, safety and welfare per 360-1.11(a)(1)). The intervenors alleged the facility would be too small for safe loading and unloading. They offered the testimony of an expert who will say that the proposed design and operating procedures are "unacceptably risky."

NYSDEC Staff noted that Part 360 requires detailed submissions and provides for a comprehensive review of the proposed activities, noted that they reviewed the plans and found them to comply with the requirements. Staff argued that the Intervenors' bold statements that the facility is unacceptably risky, too small and inefficient are not sufficient to meet their burden. The Applicant echoed NYSDEC Staff's contentions and also argued that there was a lack of expertise behind the proffered testimony.

Water Quality

Pointing to 360-1.14(b) which provides that solid waste must not be deposited in and must be prevented from entering surface or ground waters, the Intervenors claimed that the project may adversely affect water quality because there is no storm water runoff plan. NYSDEC indicated that because the activities will be conducted inside a building, no plan is needed. Applicant cited the Engineering Report's plans for spill control and cleanup, litter control, oil-water separator, etc.

Supplements to the Petition Submitted on May 4, 1998

In their supplemental petition (Exhibit 7F), the Intervenors assert that because the project is not designed for residential waste, the public need is not served. With regard to trucks and traffic, the Intervenors allege that the NYCDOS-specified routes are unenforceable for private haulers, that the underlying traffic analysis is unavailable for review, that NYCDOS-collected waste would result in different routes being used than those discussed in the SEAS, that carbon monoxide levels need to be examined, that CEQR requirements for a negative declaration of traffic impacts were not met, that future conditions do not appear to have included the vehicle maintenance facility, that for various reasons the estimate of the number of truck trips was low, and that the "CND" was based on an inaccurate estimate of trips and not based on an analysis of project traffic on highways. The Intervenors further contend that the wrong methodology was used to analyze the trucks' noise impact and that the underestimate of truck traffic caused an underestimate of the noise impact.

The Intervenors also argue that there was a failure to properly assess and mitigate the effects on air quality. In this regard they note the "CND"'s claim that the proposed action will not cause a significant adverse impact on air quality, allege that the applicable "significant source project threshold" of NOx emissions is 25 tons per year, and point out that the SEAS estimates that 48 tons per year would be emitted. The Intervenors then produced a post-SEAS February 3, 1998 submission by Applicant to NYCDOS purporting to be a refined analysis that shows the NOx to be only 23.5 tons per year (suggesting that the Co-Lead Agencies relied on this document rather than the SEAS). The Intervenors, however, are prepared to show that the emissions would be even greater than that reported in the SEAS. The Intervenors further contend that there is a strong potential that a 10 ton per year criterion (6 NYCRR 201-2.1) of a major source of hazardous pollutants will be exceeded, and that a determination of significance cannot be made without characterizing air toxic emissions.

The Intervenors analyze and challenge the "Refined Emission Analysis" in their Exhibit 7G. Exhibit 7H provides more detail of the Intervenors' allegations regarding the facility's design (size and safety concerns) and storm water concerns, alleges a violation of 360-1.7(a)(2)(ii) pertaining to 100-year floodplains, and alleges various omissions and inconsistencies that purportedly compromise and/or make it impossible for the agencies to conduct a proper review and determine compliance with applicable requirements. Exhibit 7I further explains the Intervenors' position regarding community character and plans.

The Applicant, NYSDEC and NYCDOS have not had an opportunity to respond to the contents of the Intervenors' supplemental materials.

DISCUSSION

The Intervenors want the "CND" remanded for a "hard look" at the proposed project's environmental impact. An ALJ cannot do this without first finding that the determination was irrational or otherwise affected by an error of law (6 NYCRR 624.4(c)(6)(i)(a)). Under this standard, staff determinations to not prepare an Environmental Impact Statement ("EIS") are to be reviewed by an ALJ in only rare and obvious circumstances. The question is whether this is one of those circumstances. I am reluctant to embark on such a task without further response from the parties (including petitioners for party status), which response I provide for at the end of this memorandum.

Since a SEAS and a "CND" were prepared which address in some fashion the relevant areas of environmental concern, there was at least a "colorable" compliance with SEQRA. However, the responses to Intervenors' questions regarding the TMF and the truck trip estimates make it appear that a "hard look" may not have been taken. Also, the wording of the "CND" that seems to rely on materials not in the record (of which Intervenors have complained), and the CND's seeming failure to address what may be conflicting information in the application, heighten this appearance.

The Intervenors pointed out that if the new TMF depicted on application diagrams was considered to be part of the proposed project, the Type I threshold would be exceeded. Usually Type I actions require a full EIS. While views can differ on whether the TMF should be treated as part of the proposed project, the Intervenors' argument is logical and compelling when one considers that the application shows that an existing TMF will be demolished to make way for the proposed project (which creates a need for a new TMF). In other words, if the Co-Lead Agencies had treated the TMF as part of the project, declared the project to be Type I, and required an EIS, those determinations likely would have been found to be rational. The Applicant responded to the Intervenors' concerns by asserting affirmatively that the TMF will not be built. If the Co-Lead Agencies or NYSDEC accept this information and incorporate it into the "CND" or draft permit as a condition, it avoids the ALJ having to decide the rationality of their not having treated the TMF as part of the proposed project.

The Intervenors also pointed out what seems to be a flaw in the estimation of truck trips, where the Applicant assumed that all waste would arrive at the facility in 30 cu. yd. garbage packers. The Applicant apparently estimated the total daily facility throughput at 9,700 cu. yds. (instead of using the 5,350 tons proposed to be permitted) and divided this by 30 cu. yds. to derive the 324 inbound/outbound trips for incoming waste that is reported in the application (see Exhibit 3A, p. 8-11). However, the application also indicates that city packer trucks, which hold only up to 10 tons, are expected to use the facility (see Exhibit 3B; pp. 6, 13). Dividing city packer capacity into the facility's 5,350 tons daily throughput results in a number of trips on the order of 50 per cent greater. This potential that Applicant underestimated the number of truck trips undermines the validity of the Co-Lead Agencies' determinations regarding traffic, noise, and air quality impacts, and even impact to community character (to the extent it is affected by the foregoing). Although the Applicant's SEAS points out that City thresholds of environmental significance for traffic (32.5 seconds delay), noise (3 dBA increase at night), and air quality (65 total vehicle trips/hr) are not exceeded, the numbers that resulted when the Applicant used its estimate of truck trips indicate that these thresholds are approached (i.e., 30 seconds delay, 2.9 dBA, 64 vehicle trips)(see Exhibit 3A: pp. 3-8, 8-14 and Tables 8-4 and 8-6; Chapter 14 section M; Appendix C). The differences between the foregoing estimated values and the thresholds leave little margin for error in the truck trip estimate.

Since the environmental assessment stage is used to determine only the possibility that a significant adverse environmental impact could occur which would require further study in an EIS, reason indicates that the truck-trip estimate should have been based either on the smaller-sized trucks expected to use the facility or, at the very least, on a mix of sizes that could be expected based on information from similar facilities. Because the truck-trip estimate figures heavily in the calculation of traffic, noise and air impacts, basing the trip estimate on the capacity of the largest incoming packers (and also assuming that they will all arrive filled to capacity) seems illogical. Rather than address the possibility of impacts from a greater-than-estimated number of trucks, the Applicant has proposed to limit the truck trips to the levels stated in the SEAS. If the Co-Lead Agencies or NYSDEC accept this information and incorporate it into an enforceable "CND" or draft permit condition, it might avoid the ALJ having to decide the rationality of their relying on the Applicant's estimate.

The "CND" purports to address noise, hazardous materials in subsurface soils and groundwater, surface water, air quality, traffic, land use and community/neighborhood character, socioeconomic analysis/displacement, community facilities, open space, historic and archeological resources, natural resources, waterfront revitalization, public health and safety, solid waste and energy. For a number of these areas, it is not clear what information, methodologies or standards the "CND" relies upon.

Regarding noise, the "CND" imposes the condition of a to-be-designed noise barrier wall and canopy. It notes that the New York City Department of Environmental Protection (NYCDEP) analyzed on-site stationary and off-site mobile sources, and concludes that noise generated from the equipment used at the site is not expected to produce a significant noise impact if mitigated by the condition. Although purportedly analyzed, no conclusion regarding off-site mobile sources is presented. It is unknown what data (measurements, estimates, assumptions), standards (CEQR thresholds, Part 617 thresholds, concepts of public nuisance or some other frame of reference) and methodologies were relied upon by NYCDEP to make its analysis and arrive a conclusion. Other than the conclusion, NYCDEP's analysis is not set forth or otherwise available for review in the record of this proceeding. The conclusion seems to have ignored the City's 3 dBA threshold mentioned in the application.

Regarding air quality, while the "CND" claims that NYCDEP analyzed all vehicular trips generated and to be generated by existing and pending solid waste transfer stations, including the proposed project, and concluded there would be no significant adverse impact on air quality from mobile sources, the analysis itself is not in this record. Again, it is unknown what data, standards and methodologies were used to arrive at the conclusion. The conclusion seems to have ignored the City's 65 vehicle trip threshold noted in the application.

Regarding traffic, the "CND", in essence, claims that the New York City Department of Transportation ("NYCDOT") reviewed the EAS and traffic study, validated information, and, using applicable methodologies and standards, concluded that none of the thresholds indicating a significant traffic impact would be exceeded. NYCDOT's report, however, is not available in this record. The "CND" contains no explanation of where the greatest impact will occur and why it will not be significant. The "CND" also cites an evaluation by the Applicant regarding the project's cumulative traffic impact with other proposed transfer stations, yet, other than a statement in the application that a review was made (Exhibit 3A, p. 8-14), such a review is not found in the record.

Regarding land use and community character, the "CND" finds no significant adverse impact because the proposed project is consistent with the site's zoning and related requirements, the site historically was used as a solid waste transfer station, and the City has no plans to rezone the area. Similarly the "CND" concludes there will be no significant impact to waterfront revitalization, alleging the project to be consistent with the New York City Comprehensive Waterfront Plan ("Waterfront Plan") and the City's Waterfront Revitalization Program Policies. In conclusory fashion, the "CND" also finds no significant adverse socioeconomic/displacement impact because the proposed action "will not directly or indirectly change the population, housing stock, or economic activities in the area."

The application, somewhat in contradiction, says that the Waterfront Plan recommends the Brooklyn Eastern District Terminal area (which includes the project site) for rezoning to medium density residential and light manufacturing (with medium density residential and local retail identified as suitable alternative reuses), and that the Department of City Planning and the Planning Commission have taken steps that are intended to legalize existing non-conforming residential uses and are expected to increase residential use of areas nearby.(Exhibit 3A, pp. 3-4, 3-5, 4-2; Exhibit 3B, p. 3). Furthermore, the application shows that the "Special Northside Mixed-Use District," intended to retain and expand manufacturing and residential uses where compatible, and the "Williamsburg Special Mixed Use District R6 (M1-2) ," created "to permit the expansion of both light manufacturing and residential uses where such uses are deemed compatible," are respectively 1 and 2 blocks from the project site. (Exhibit 3A, pp. 3-3, 3-7 and Fig. 3-2).

The application notes that the CEQR Technical Manual, with reference to socioeconomic/displacement concerns, suggests considering "Whether the action constitutes a use or concentration of uses generally considered undesirable which may impede efforts to attract investment to the study area or which may result in disinvestment." (Exhibit 3A, p. 4-1). 6 NYCRR 617.7(c)(1) makes "creation of a material conflict with a community's current plans or goals as officially approved or adopted" a criterion for determining significance.

Land use, community/neighborhood character, waterfront revitalization, and socioeconomic analysis/displacement concerns here all involve existing and potential residential uses. Undoubtedly, transfer stations are generally considered undesirable neighbors for residences and can be expected to be a disincentive to investment in residences. Since the proposed project is within a couple blocks of areas already specifically zoned to preserve and encourage residential use, it would be reasonable to expect existing and future residential uses in these locations would be discouraged, displacement would occur, and plans for more residences would be impeded. With this as background, clarification of why these things will not happen is conspicuously absent in the "CND". Also, since the Waterfront Plan recommends rezoning the Eastern District Terminal for medium density residential and light manufacturing, and also identifies several privately owned sites in Greenpoint and Williamsburg for medium density residential and local retail development (see Exhibit 3A, p. 3-4), an explanation of why the project is not in material conflict with such goals appears to be needed.

As evidenced by the public hearing, the project's host community overwhelmingly believes that this project will lead to its destruction. However, if the Co-Lead agencies' conclusions of "no significant adverse impact" are correct, then community fears are unfounded. Unfortunately, the absence of explanatory information in the "CND" invites speculation on how the conclusions were made, fuels distrust, and impairs the ability of people to challenge what they believe is a wrong decision. If the Co-Lead Agencies are sure that the project will not cause a significant adverse impact, then they need to explain this in terms that the community can understand. Regardless, it is premature for me to try to identify which facts are disputed when it is unclear which facts the Co-Lead Agencies are relying upon. Giving the Co-Lead Agencies the benefit of the doubt, they may have the data and reasoning to back up their determinations. However, the information seems to be scattered among several government entities in places that are outside this record. This needs to be fixed before this matter can proceed further.

The Applicant's proposals to not build the TMF and to limit the truck trips to the numbers estimated in the SEAS could eliminate the need to consider some issues and narrow the focus of others. Thus, the Co-Lead Agencies or NYSDEC need to decide how the Applicant's proposals should be handled. The Intervenors need to decide what, if any, substantive and significant issues would remain assuming that the Applicant's proposals are incorporated into either the "CND" or Draft Permit.

ORDER

I direct that the issues conference participants brief each of the matters discussed above.

The Co-Lead Agencies (jointly) are asked to explain how Applicant's proposals regarding the TMF and limitation of truck trips will be handled. The Co-Lead Agencies also are asked to further explain their "CND" and submit for the record any documentation relied upon that is not already marked for identification in the number 3 or number 4 series of exhibits. Particular attention must be given to cure the deficiencies in the "CND" identified in the discussion above. The Co-Lead Agencies should also address the matters discussed in the Intervenors' supplemental materials (Exhibits 7F, 7G, 7H and 7I), with NYSDEC addressing the allegations that refer to particular sections of Part 360.

The Applicant may respond to the allegations of the Intervenors' supplemental materials.

The Intervenors (in consolidated fashion) are asked to review the issues broached in their original and supplemental filings, parse out those that rely on construction of the TMF and truck trips at levels in excess of those stated in the SEAS, and explain what issues remain, why, and what they intend to present in evidence. In their brief they are expected to confine themselves to the materials they've already submitted and narrow the scope of issues they've already proposed. The Intervenors are not to expand into new areas in their brief.

After submitting briefs, the participants are asked to reply to each other's briefs, presenting new material only as needed to address matters raised in another participant's brief.

Briefs are to be received no later than June 22, 1998. Replies are to be received no later than July 10, 1998.

____________/s/____________
Frank Montecalvo,
Administrative Law Judge

June 2, 1998 Albany, New York

To: Official Service List attached

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