Jeffrey L. Braun ObraunPkrarnerlevin.eorn) Karen L. Mintzer (km intzeLftkrameHevin. corn) Kerri B. Folb (kfolb rykramer1evin.com )

KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Aynerica

New York, NY 10036 (212) 715-9100 Attorneys for Plointiffi

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

NEW YORK STATE ASSEMBLY MEMBER MICAH Z. KELLNER, NEW 'YORK CITY COUNCIL MEMBER JESSICA LAPPIN, ASPHALT GREEN, INC., GRACIE POINf COMMUNITY COUNCIL by its President, George. Morin, GEORGE MORIN individually, THOMAS NEWMAN, NORMAN FLASTER, LEA FEASTER, ONE GRACIE SQUARE CORP. and ANDREW

LACHMAN,

Plaintiffs,

- against - COMPLAINT

UNITED STATES ARMY CORPS OF ENGINEERS, PAUL E. OWEN, Colonel, as Commander of the United States Army Corps of : Engineers, New York District, CITY OF NEW YORK, NEW YORK : CITY DEPARTMENT OF SANITATION and NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION,

Defendants.

Plaintiffs, by their.attorneys Kramer Levin Naftalis & Frankel LLP, for their

complaint, respectfully allege as follows:

A. Introduction

New York City's Department of Sanitation ("DSNY") wants to build a

new, 10-story-tall, 70,000-square-foot solid waste marine transfer station for processing,

2 CV 8458

••• E.L.:1:a..•••A •

containerizing and re-shipping up to 5,280 tons of garbage pef day on a platform over the East

River at East 91st Street. A worse and more ill-conceived location for a garbage transfer station

is difficult to imagine. The site is in the densely populated Gracie Point residential

neighborhood, and is surrounded by the heavily used Asphalt Green recreational complex and

two popular public parks — the East River Esplanade and Carl Schurz Park.

2. Although the transfer station itself will he separated from the surrounding

residential buildings, parks and recreational facilities by the F.D.R. Drive, there is no vehicular

access to the site from the Drive. Therefore, the only means of access to the new transfer station

for garbage trucks and other vehicles will he by a partially elevated ramp that will start at York

Avenue, in the midst of the Gracie Point neighborhood, and then will bisect the Asphalt Green

site between the complex's outdoor playing fields, basketball courts and indoor gymnasiums to

the south and its aquatic sports center and an outdoor playground for preschool-aged children to

the north. This ramp is an integral part of the proposed project,

3. The primary reason why DSNY insists on using this location is that the

City already oWns it. The site now contains the shell of a defunct transfer station that the City

built in the 1930's and deactivated in 1999. Like the proposed new transfer station, the only

vehicular access to the defunct station was by a partially elevated ramp from York Avenue.

4. When this former transfer station was built, however, the surrounding

Gracie Point neighborhood was primarily populated by busineSses engaged in light

manufacturing activities, and the Asphalt Green site was a disjointed collection of properties

containing a municipal asphalt plant and DSNY truck garages. Starting in the 1960's, economic

and demographic forces, supported and encouraged by the City's land use policies and zoning

changes, brought about substantial new construction and thoroughly transformed Gracie Point

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from a manufacturing zone into a residential neighborhood. This transformation included the

creation of the Asphalt Green recreational complex in the 1980's on what had been the sites of

industrial uses,

5. Incongruously, the new transfer station that DSNY wants to build at the

site will be about twice as large as the defunct one that is slated for demolition, In addition, it

will receive commercial waste from private carters as well as DSNY-managed residential waste,

unlike the former transfer station, which only received residential waste.

6. This new transfer station would require DSNY to perform dredging and

substantial other construction work in the East River, including the discharge of dredged material

and fill material. The river constitutes waters of the United States. Theretbre, the Clean Water

Act, 33 U.S.C. § 1251, el seq., prohibits DSNY from constructing the proposed transfer station

unless it first obtains a permit under § 404 of the Act (33 U.S.C. § 1344) from the United States

Army Corps of Engineers (the "Corps").

7. On July 20, 2012, the Corps granted DSNY's application for a § 404

permit and issued the necessary permit. The Corps' issuance of this § 404 permit was improper

and unlawful,

8. The § 404 permit is inconsistent in several material respects with the

requirements of the Clean Water Act and mandatory guidelines and regulations promulgated

thereunder. The Corps' conclusion that the permit is consistent with the Act's requirement that

§ 404 permits be issued only if they are in the public interest is irrational in view of

overwhelming evidence to the contrary. Furthermore, the Corps failed to fulfill its obligation to

properly consider reasonable alternatives to the permitted activity; the Corps acted without a

sufficient basis for concluding that the project would not degrade the waters of the United States;

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and the Corps failed to impose a legally sufficient plan to mitigate the project's likely adverse

effects on the river's aquatic ecosystems.

9. In addition, the Corps failed to perform an adequate environmental review

in connection with its issuance of the permit. The Corps erroneously truncated its environmental

review of the project and wrongfully concluded, on the basis of that circumscribed review, that

issuance of the § 404 permit would have no environmental significance. Therefore, the Corps

failed to fulfill its obligations under the National Environmental Policy Act, 42 U.S.C. § 4321, et

seq. ("NEPA").

10. Plaintiffs bring this action under the Administrative Procedure Act, 5

U.S.C. § 500, et seq. (the "APA"). The APA empowers this Court to "hold unlawful and set

aside agency action, findings, and conclusions" that are determined to be "arbitrary, capricious,

an abuse of discretion or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A).

Plaintiffs ask this Court to annul the § 404 permit that the Corps issued to DSNY and

permanently enjoin DSNY from conducting any activity purportedly authorized by the permit.

11. Plaintiffs also assert a number of state law claims against the City

defendants. These claims arise from the same nucleus of operative fac s and therefore present a

single case or controversy.

B. Jurisdiction and Venue

12. This Court has jurisdiction of this action under 28 U.S.C. § 1331 and the

APA, because the action asserts claims under the laws of the United States. Specifically, it

asserts violations by the Corps of the Clean Water Act and NEPA, as well as violations of

plaintiffs' constitutional rights. In addition, this Court has supplemental jurisdiction ofpIaintiffs'

state law claims under 28 U.S.C. § 1367.

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13. Venue is proper in this Court, because the Corps' New York District

headquarters are located at 26 Federal Plaza, New York, NY 10278, within this judicial district.

In addition, the garbage station that is the subject of the § 404 permit is to be located in this

judicial district, and the City's principal offices also are situated in this judicial district.

C. • The Parties

(a) Plaintiffs

14. Plaintiff Micah Z. Kellner is the New York State Assembly Member for

the 65th Assembly District, Which lies between Third Avenue and the East River in Manhattan,

extends from East 60th Street to East 95th Street, and also includes Roosevelt Island. The East

91st Street site and the surrounding neighborhood are within the 65th Assembly District, Mr.

Kellner lives at East 84th Street and York Avenue, two blocks from the route that garbage trucks

will usc to travel to and from the proposed transfer station. Mr. Kellner regularly spends time at

Asphalt Green and enjoys the East River Esplanade and Carl Shurz Park. Mr, Kellner

participated in the public proceedings leading to the § 404 permit by submitting written

comments and oral testimony to the Corps as well as written comments on a proposed mitigation

plan submitted to the Corps by DSNY.

15. PlaintiffJessica Lappin is the New York City Council Member for the 5th

Councihnanic District in Manhattan, which lies between Lexington Avenue and the East River,

extends from East 49th Street to East 92nd Street, and includes Roosevelt Island. The East 91st

Street site and the surrounding neighborhood are within the 5th Councilmanic District. As the

elected official representing this neighborhood, she is frequently present in the immediate

vicinity of the East 91st Street site. Her five-year-old son has attended day camp at Asphalt

Green during the warm weather. Ms. Lappin participated in the public proceedings leading to

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the § 404 permit by submitting mitten comments and oral testimony to the Corps as well as

written comments on DSNY's proposed mitigation plan.

16. Plaintiff Asphalt Green, Inc. is a New York not-for-profit corporation

dedicated to assisting individuals of all ages and backgrounds to achieve good health through a

lifetime of sports and fitness. Community service is at the core of its origins and at the heart of

its mission. The sports and recreation complex, located on City-owned land, operates pursuant

to a 20-year agreement with the New York City Department of Parks and Recreation, which

recognizes the critical role that Asphalt Green plays in addressing complex health issues,

foremost of which is childhood obesity. The agreement obligates Asphalt Green, Inc. to provide

swimming and other water sports, land sports and recreational and community facilities to the

community and to those with the greatest health risks from lack of physical activity. It obligates

Asphalt Green, Inc. to open its facilities to the general public regardless of ability to pay, to

provide free seTvices at least 30% of the time and to provide open access to its outdoor spaces.

The Asphalt Green complex is located between East 90th Street and East 92nd Street, on the east

side of York Avenue, between York . Avenue and the FDR Drive, The Asphalt Green campus

includes the only year-round outdoor playing fields north of 8th Street in Manhattan, outdoor

basketball courts, the Aqua Center (which houses an Olympic-sized swimming pool and viewing

stand, a fitness center and an activity room), the Murphy Center (a designated New York City

landmark that was built as the City's municipal asphalt plant but, after an extensive renovation,

now contains two gymnasiums and a theater) and DeKovats Park, which is an outdoor

playground designed for preschool-aged children. A photograph showing the Asphalt Green

complex is annexed hereto as Exhibit 1. Asphalt Green participated in the public proCeedings

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related to the Clean Water Act permit process by submitting oral testimony on the permit

application,

17. Plaintiff Gracie Point Community Council (the "Community Council") is

an unincorporated association that sues by its president, George Morin. The Community Council

has several thousand members. Its members are individuals, businesses entities and cooperative

corporations that live, raise children, work, own residences and businesses, and run institutions

in the Gracie Point community on Manhattan's Upper East Side, in the vicinity of thc East 91st

Street site. The Community Council's mission is to ensure the preservation and betterment of

the Gracie Point neighborhood as a tranquil urban residential community. Many of the

Community Council's members live within 500 feet of the East 9Ist Street site. Community

Council members regularly use and enjoy Asphalt Green and the New York City parks in the

immediate vicinity of the site. Its members live near and enjoy the East River as an important

aesthetic element of the neighborhood, and some usc it for recreational Fishing. The Community

Council participated in the public proceedings related to the Clean Water Act permit process by

submitting written comments and oral testimony on the permit application as well as written

comments on the proposed mitigation plan.

18. Plaintiff George Morin is a member of the CoMmunity Council and its

president. He resides at 1725 York Avenue in Manhattan, at the corner of East 90th Street and

York Avenue, His apartment building would be just one block from the entrance to the access

ramp to the garbage station. Odors, air pollution and noise from the construction and 24-hour-

pen-day operation of the transfer station threaten Mr. Morin's health and the use and enjoyment

of his home and the nearby parks that he frequents.

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19. Plaintiff Thomas Newman lives at 1775 York Avenue, between East 92nd

and 93rd Streets, one block north or Asphalt Green and the access ramp to the proposed transfer

station. Mr. Newman's apartment is near the East River, and he enjoys looking at the river,

which is an important aesthetic element of the neighborhood that will be diminished by the

garbage station. Mr. Newman was born without lower legs, and uses two artificial legs and a

wheelchair, His physician requires him to swim regularly for physical therapy and pain relief

He has two children who often play at DeKoyats Park, He has chosen to live at his home

because it is the only location in the City that allows him to access both a swimming pool and a

park for his children within close enough distance for him to travel with his wheelchair. To

access the Asphalt Green facilities, Mr. Newman and his children must cross the foot of the

access ramp to the proposed transfer station. Odors, air pollution, noise and traffic from the

construction and 24-hour-per-day operation of the garbage station would endanger Mr.

Newman's health, make it more difficult and dangerous for him and his children to access

Asphalt Green, and diminish their use and enjoyment of their home, Asphalt Green and

neighborhood parks.

20. Plaintiffs Norman and Lea Plaster are husband and wife and live at 1775

York Avenue, between East 92nd and 93rd Streets, onc block from the entrance to the access

ramp to the garbage station. The Flasters' apartment is near the East River, and they enjoy

looking at the river, which is an important aesthetic element of the neighborhood that would be

diminished by the garbage station. They use the facilities at Asphalt Green about three times per

week. As senior citizens above the age of 70, these visits are essential to their health and well-

being. To get to Asphalt Green, they must cross York Avenue near the ramp entrance. They

also often use and enjoy the East River Esplanade and Carl Shurz Park. Odors, air pollution,

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noise and traffic from the construction and 24-hour-per-day operation of the garbage station

threaten their health, would make it more difficult for them to access Asphalt Green, and would

adversely affect their use and enjoyment of their home and nearby parks. Mr. Fluster lived in the

neighborhood when the defunct transfer station was in operation, and he remembers the garbage

trucks lining up along York Avenue and spewing exhaust while waiting to enter the transfer

station. He also recalls the terrible odors that permeated the neighborhood and could be smelled

when he opened his windows, and also recalls the numerous rats near the station.

21. Plaintiff One Gracie Square Corp. is a New York corporation that owns

the land and cooperative apartment building at One Gracie Square in Manhattan, situated on the

southeast corner of East End Avenue and East 84th Street. The building contains 17 cooperative

apartment units. It is immediately across the street from the children's playground in Carl

Schurz Park and one-half block from the East River Esplanade. The shareholders-tenants of One

Gracie Square Corp. regularly use and enjoy Carl Schurz Park and the East River Esplanade, as

well as Asphalt Green. Odors, air pollution and noise from the construction and 24-hour-per-day

operation of the transfer station threaten the health oldie shareholder-tenants and their use and

enjoyment of their homes and the nearby parks that they frequent.

22. Plaintiff Andrew K. Lachman resides in Manhattan and has a 13-year-old

daughter who is a member of the Asphalt Green Wave Soccer Club's U-13 team, a try-out based

competitive club travel soccer team. Ills daughter practices with her team on Asphalt Green's

outdoor playing field three afternoons per week . during soccer season and plays "home" games

there on Sundays. Mr. Lachman is an assistant coach of the team and attends many practices and

"home" games. He is also the founder of Parent Leaders of Upper East Side Schools ("PLUS"),

an unincorporated association in formation of parents from many Upper East Side schools that

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use Asphalt Green for recreational activities, and that oppose the proposed transfer station

because of its adverse effects on health and safety. Odors, air pollution, noise and traffic from

construction and operation of the proposed transfer station would threaten the health and safety

of Mr. Lachman's daughter and the other children who play sports at Asphalt Green.

23. Due to their proximity to the East 91st Street site and the East River and

their use and enjoyment of the neighborhood, its recreational facilities and aesthetic resources,

the Community Council, its members and the other named plaintiffs all have particularized

interests that are adversely affected by the unlawful actions of the Corps in issuing the § 404

permit and finding that there would be no significant environmental effects of doing so. The

relief requested from this Court would redress these injuries, because the proposed transfer

station cannot be constructed without the § 404 permit, which should not have been issued

without compliance with the Clean Water Act and the applicable rules and mandatory guidelines

thereunder, and without a proper analysis of environmental impacts as required by NEPA.

Plaintiffs' particularized interests also give them standing to raise their state law claims.

(2) Defendants

24. Defendant United States Army Corps of Engineers is the federal agency

charged with considering and granting or denying applications for permits under § 404 of the

Clean Water Act allowing the discharge of dredged or fill material into the waters of the United

States. The Corps must comply with NEPA before granting a § 404 permit. The Corps'

headquarters are in Washington, D,C., but it has a District Office in New York. The Corps' New

York District issued the § 404 permit at issue in this action and conducted the inadequate

environmental review of the permit application.

25. Defendant Colonel Paul E, Owen is the Commander of the Corps' New

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York District, and is sued solely in his official capacity.

26. Defendant City of New York is a New York municipal corporation and a

political subdivision of the State of New York. The City owns the East 91st Street site that is the

location proposed for the solid waste transfer station at issue in this case.

27. Defendant DSNY is a department of the City established pursuant to § 751

of the New York City Charter. Its responsibilities include "the removal and disposition of ashes,

street sweepings, garbage, refuse, rubbish and waste" (Charter § 753(a)(2)). DSNY is the agency

to which the § 404 permit for the East 91st Street garbage station was issued.

28. Defendant New York City Department of Design and Construction

("DDC") is a department of the City established pursuant to Charter § 1200. DDC "exercises

powers of the city relating to city construction projects" (Charter § 1202(a)) and is exercising

those responsibili ties for construction of the proposed East 91st Street transfer station.

D. The City's Solid Waste Management Plan

29. The City is required by New York State law (see § 27-0107 of the

Environmental Conservation Law) to have a solid-waste managemen plan (a "SWMP") for the

collection and disposal of its solid waste that has been approved by the New York State

Department of Environmental Conservation ("NYSDEC"). The City's current SWMP was

proposed in 2004 and approved by NYSDEC in 2006.

30. According to DSNY, there are approximately 50,000 tons of waste and

reeyclables collected each day within the City of New York. Of that total, DSNY collects and

manages approximately 12,000 tons per day ("tpd") of putrescible waste (i.e., waste containing

organic matter susceptible to odor and decay) and approximately . 2,200 tpd of recyclables, which

are generated by City residents and public institutions. The remainder of . approximately 35,800

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tpd is commercial waste and consists of putreseible waste, mixed construction and demolition

. debris, fill material and recyclables generated by the City's commercial businesses or by

construction activities. Commercial waste is collected and managed by privately owned waste

management companies.

31, The City's residential waste was and continues to be handled by DSNY in

one of three ways: (a) it is transported by DSNY collection vehicles directly to transfer stations

or disposal facilities outside the City; (b) it is transported by DSNY collection vehicles to

privately owned transfer stations in the City that are licensed by DSNY, and then transferred by

private long-haul trucks to sites outside the City; or (c) a small portion (approximately 1,800 tpd

as of 2004) is transported by DSNY collection vehicles to the Harlem River Yard in the Bronx,

directly across the Harlem River from Manhattan, and then transported out of the City by rail.

32. All residential waste generated in Manhattan (as opposed to other

boroughs) is transported in DSNY collection vehicles directly to a disposal facility in New

Jersey. None of Manhattan's residential waste is processed or disposed of in any other borough

of the City.

33. In the 2004 SWMP, DSNY proposed to build four new marine solid waste

transfer stations at which it would containerize waste and transfer it to barges for shipment

outside the City by water. Two of these facilities were to be built in Brooklyn, and one was to

be built in Queens. The fourth facility was to be built at the East 91st Street location. Each

facility was to have a lifespan of over 50 years. The Queens facility and one of the two Brooklyn

facilities are in construction, but not in operation. Construction of the other two proposed

facilities has not commenced,

34. According to the City, these four new transfer stations are intended to

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reduce the adverse impacts of the current truck-based transfer and disposal network on

residential neighborhoods by reducing air pollution from truck traffic, and also are intended to

reduce transportation costs and improve long-term economics for the garbage disposal system as

a whole.

35. Notwithstanding these professed aspirations, the proposed new garbage

station at East 91st Street would not receive DSNY-managed residential garbage from all of

Manhattan, but only from areas on Manhattan's East Side. The rest of Manhattan's residential

solid waste would continue to be transported by truck to a facility in New Jersey. Furthermore,

the proposed new East 91st Street transfer station would re-introduce heavy truck traffic to a

residential neighborhood from which it was eliminated when the defunct transfer station ceased

operations in 1999.

36. The former garbage station accepted only residential waste collected by

DSNY. By contract, the new garbage station at East 91st Street also would accept commercial

waste collected by private carters anywhere in the City. Private carters would be permitted to

bring commercial waste to the facility between the hours of 8:00 p.m. and 8:00 a.m. Diesel

trucks emit unhealthy amounts of fine particulate matter, which is a known risk factor for heart

disease and lung cancer. Significantly, the trucks used by private carters are notoriously dirtier,

smellier and louder than DSNY trucks. DSNY trucks use ultra-low-sulfur diesel fuel and retrofit

technology to reduce particulate emissions, but the City will not impose similar restrictions on

private carters.

37. In addition, this new transfer station would not be economical. In a May

2012 study, the City's Independent Budget Office estimated that it would actually cost more than

two times as much to construct and operate the East 91st Street garbage station ($554.3 million)

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than it would cost to continue to transport all of Manhattan's residential waste to New Jersey

($218.9 million).

E. The East 91st Street Site in General

38. Unlike the sites proposed for the three other new transfer stations, the East

91st Street site is located within a heavily populated residential neighborhood. This Gracie Point

neighborhood generally is bounded by the East River to the east, East 84th Street to the south,

Second Avenue to the west and East 96th Street to the north.

39. This neighborhood was once primarily the home of light industrial and

manufacturing uses, particularly automotive uses, warehouses and a municipal asphalt plant.

The now defunct transfer station that was built at the East 91st Street site in the 1930's was, at

the time of its construction, consiStent with the neighborhood's then industrial character.

40. However, the East 91st Street site is now in a residential neighborhood

characterized primarily by high-rise apartment buildingS, sidewalks lined with trees, parks and

recreational facilities. One residential building is directly across York Avenue from the foot of

the ramp that provides the only access to the transfer station site — a distance of only 100 feet.

Several other large apartment buildings also are in close proximity to the ramp. A large, multi-

building New York City Housing Authority public housing complex is just a few hundred feet

away. The former municipal asphalt plant is now a City landmark, Murphy Center, which is part

of the Asphalt Green complex and contains gymnasiums and a theater.

41. This transformation of Gracie Point has been supported and encouraged by .

land use policies deliberately and continuously implemented by the City over the course of

decades. Over the last 35 years, many properties in the neighborhood have been rezoned from

commercial CS zones, where residential development is prohibited, to C2 or R zones, where

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residential development is permitted. These rezonings recognized the emerging residential

character of the neighborhood, and facilitated the development of new high-rise apartment

buildings. Now the neighborhood is overwhelmingly residential.

42. Despite the rezonings that have occurred in the blocks surrounding the

East 91st Street site, the City has maintained the site itself— which the City owns — as an M1-4

zone. This zoning is no longer consistent with the surrounding zoning designations, but is a

vestige of the prior industrial and manufacturing character of the neighborhood that ceased to

exist long ago, The City's continuation of this obsolete zoning designation is a result of a

conflict of interests on the part of the City, which is simultaneously responsible to the

community as a whole for the establishment of sound and reasonable zoning designations but at

the sante time is itself a property owner with a proprietary interest in this particular site.

43, According to 2010 Census data, 14,018 people live within one-quarter of a

mile from the East 91st Street site. This neighborhood is socially, economically,

demographically and ethnically diverse. Es 14,018 residents include 2,235 children, 2,100 senior

citizens, 3,000 people who are considered racial minorities, 3,292 people who are foreign-born

and 1,270 people who are below the poverty level. None of the three other sites proposed for

marine transfer stations in the 2004 SWMP is comparable in character.

F. Asphalt Green

44. Asphalt Green Occupies a five-acre site on the east side of York Avenue

between East 90th and 92nd Streets. The campus surrounds the garbage station site and is one of

the most important and unique public resources in Manhattan. Its facilities are used by 138

different schools, other not-for-profit institutions and businesses from around the City. In total,

56,151 people used Asphalt Green in fiscal year 2012, with over 2 million people part cipating in

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Asphalt Green activities on and off campus that year, an increase of almost 10% from the

previous year.

45. Free activities in 2011-2012 served 25,999 people accounting for 46% of

Asphalt Green's total services, or 1,374,488 free visits. These free visits were made mostly by

public school children who attend nearby schools in Harlem and East Harlem. Asphalt Green

provides free sports league play for under-served youth, which is one of the few opportunities for

New York City middle school students to play organized team sports. In effect, Asphalt Green's

playing fields serve as the sehoolyard for thousands of children. In addition, during the 2011-

2012 year, Asphalt Green offered 165 scholarships worth almost $200,000. Thc largest share of

the scholarship funds, 53%, went to children to attend Asphalt Green's summer day camp. The

summer camp, with the majority of activities occurring on the field and other outdoor spaces

immediately adjacent to the garbage station ramp, served 700 campers in the summer of 2012.

Asphalt Green instructors and staff members also visit public schools around the City, where

they provide counseling and coaching services to the children at those schools,

46. In addition, Asphalt Green runs a "Waterproofing" program that has

taught over 30,000 primarily African-American and Latino public school students water safety

and swimming for free. This program is part of Asphalt Green's commitment to eliminating

obesity and drowning in New York City, Drowning is the second leading cause of injury-related

deaths among children, and it affects children of color four times more frequently than it affects

Caucasian children, Asphalt Green also runs a program for competitive swimming, Asphalt

Green United Aquatics ("AQUA"), and awards scholarships to AQUA based on financial need,

talent and dedication. Lia Neal, who won a bronze medal at the 2012 Olympic Games in London

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and is only the second 'African-American female swimmer in U.S. Olympic history, has been

swimming at Asphalt Green on an AGUA scholarship since shc was eight years old.

47. It is the obligation of plaintiff Asphalt Green, Inc, to protect the safety of

the children and adults who use its facilities while they are using its facilities.

48. The ramp from York Avenue to the garbage station, which would provide

the only means of vehicular access to the garbage station, would traverse Asphalt Green's

complex. It would he adjacent to the outdoor playing fields on one side, and the Aqua Center

building and the DeKovats outdoor park, designed specifically for preschool-aged children, On

the other side. Benches, a small practice area adjoining the playing fields and the outdoor

passageway that connects the outdoor playing fields and basketball courts and the Murphy

Center's gymnasiums with the Aqua Center building, would be immediately adjacent to and

underneath the elevated portion of the ramp where garbage trucks would queue while they wait

to enter the garbage station.

49. Vehicular traffic to and from the garbage station would pose a threat to the

safety of Asphalt Green v s tors. Buses delivering children and seniors to Asphalt Green for

swim classes, summer camp and other programs discharge their passengers on York Avenue

south of the defunct access ramp that was built to service the defunct former transfer station, and

that would be replaced by the new ramp. These buses now park on York Avenue,.where garbage

trucks would queue to enter the ramp for the garbage station. Children then walk north, across

the foot of the existing ramp, to the Aqua Center. Once their visit to Asphalt Green is finished,

they walk back across the foot of the existing ramp to get back on their buses. Children

attending camp at Asphalt Green walk back and forth between the playing fields and the Aqua

Center via the open-air passageway under the ramp several times a day. These crossings are now

17

safe, because there is no traffic on the existing ramp, but they would become perilous due to

truck traffic once construction of the new garbage station and ramp begins, and once they are in

operation. A photo that shows children crossing across the foot of the existing ramp is annexed

hereto as Exhibit 2.

50. Emissions of particulate matter from truck traffic on the ramp would

further endanger the health and safety of people using the playing fields and DeKovats Park.

The adverse health effects of particulate matter emissions are well known, and include strokes,

heart disease, respiratory.ailments such as asthma, lung cancer and premature death, Particulate

matter emissions pose a greater health risk to people while they are. exercising than while they

are at rest, because people inhale more deeply during exercise and, as a result, draw particulate

matter deeper into their lungs. Children are at still higher risk from emissions of particulate

matter, which exists at a higher density closer to the ground, because children are outside more

frequently and have higher activity levels, and their developing lungs are more susceptible to

irrevarsible damage from particulate matter.

51. In addition, Asphalt Green visitors would be endangered by construction

activities, which would involve demolition of the existing ramp and construction of the new one.

Demolition and construction activities associated with the ramp would interfere with and limit

access to the playing fields, thereby depriving significant numbers of children of opportunities

for exercise that cannot be provided at their schools, and also would pose a danger to children

and adults while they use the playing fields. Demolition and construction also could expose

Asphalt Green users to hazardous materials that are unearthed by the excavation of soil to

remove and install pilings for the ramp, or dust from lead-based paint and PCB-containing

materials that is released into the air during demolition of the ramp and building. These potential

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dangers have not been studied by DSNY or acknowledged by the Corps. Demolition and other

construction activities also threaten Asphalt Green's facilities with physical damage.

52. Before the now defunct transfer station at this location, which accepted

only DSNY-managed waste, was shut down in 1999, Asphalt Green's facilities, especially the

outdoor facilities, regularly were subjected to offensive odors that were particularly obnoxious

during warm weather when Asphalt Green's summer camp was in operation. In addition,

Asphalt Green's.facilities suffered severe rat infestations when the former garbage station was in

operation, because rats regularly escaped from the garbage trucks while they were queuing for

access to the garbage station, and rats also exited from the transfer station itself and used the

ramp to gain access to the Asphalt Green campus.

53. Since the transfer station shut down in 1999, Asphalt Green's annual

operating revenue has increased from $5.77 million to an estimated $15,5 million in the fiscal

year that will end June 30, 2013, This increase represents an average annual revenue growth in

excess of 7% per year, This growth, especially in the day camp and other outdoor activities,

accelerated significantly since the former transfer station was closed.

54. Asphalt Green's leadership and staff believe that construction and

operation of the proposed garbage station would significantly diminish perhaps by as much as

35% — participation in Asphalt Green's programs, andtherefore severely diminish its revenues.

A substantial diminution in revenues would severely limit Asphalt Green's ability to provide free

services to members of the general public, especially school children,

G. The East River

55. The new East 91st Street garbage station is to be constructed on a new

platform over the East River. The East River is part of the waters of the United States, and has

19

been inventoried by NYSDEC as a tidal wetland. The transfer station and its platform are to be

built atop a littoral zone, which is an area that contains a nutrient- and oxygen-rich environment

that supports complex marine ecosystems. In recent years, as industrial uses near the river have

diminished, the river has become cleaner, and its ecology has improved significantly. Residents

of the area fish in the East River near the East 91st Street site, and have reported catching striped

bass, flounder and bluefish.

56. As confirmed by the materials submitted by DSNY to the Corps, winter

flounder eggs and larvae and adult winter flounder have been found in the vicinity of the East

91st Street site, which provides habitat for this species. The winter flounder is a species whose

habitat has been designated under the Magnuson-Stevens Fishery Conservation and Management

Act (16 U.S.C. §. 1801, et seq.) as essential for protection. The winter flounder previously

suffered a near population collapse, from which it only has been recovering since approximately

2004.

57. The East River also is home to several species that have been listed as

endangered under the Endangered Species Act (16 U.S.C. § 1531, et seq.), including the Atlantic

sturgeon, the shortnosc sturgeon and four species of sea turtles.

58. Recent events affecting the East River show the enormous fallacy in

locating a garbage station at the East 91st Street site. This site is located in a hurricane flood

zone that has been classified "A" by New York City's Office of Emergency Management, Areas

in Zone A face the highest risk of flooding from any hurricane that makes landfall close to New

York City, The F.D.R. Drive, which is adjacent to the East 91st Street site, has flooded more

than six times in the past four years, causing temporary closures, Hurricane Sandy devastated

New York City, flooding the F.D.R. Drive near East 91st Street and all other areas in Zone A.

20

The storm surize reached as high as 13 feet in New York Harbor. Last year, Hurricane Irene also

flooded the F.D.R. Drive, Major hunicanes appear to have become annual events in New York

City.

59. Flooding of the garbage station or the barges carrying garbage from the

facility could contaminate the East River and nearby residential neighborhoods with garbage.

During Hurricane Sandy, sewage, bacteria, gasoline and debris contaminated New York City's

waterways, threatening human health. River water containing this contamination flowed down

resideMial side streets from the F.D.R. Drive toward York Avenue. In addition, Asphalt Green's

facilities suffered water damage from the hurricane, and the defunct garbage station, which is

over the East River, is likely to have suffered damage as well.

60. After Hurricane Sandy, Governor Cuomo declared that New York City

must adapt its infrastructure to the reality of extreme weather patterns, including the construction

of dikes, seawalls and flood-proofed buildings. He said:

There has been a series of extreme weather incidents. That is not a

political statement. That is a factual statement. Anyone who says there's not a dramatic change in weather patterns, I think is denying reality.

The City defendants' continuing insistence on building the East 91st Street transfer station is

inconsistent with this new understanding of the reality of climate change and its impacts,

H. Prior City and State Approvals

61. The 2006 approval by NYSDEC of the City's 2004 SWMP did not

constitute approval of the actual construction of the four new solid waste transfer stations and

other facilities proposed in the SWMP. Instead, the City was required to obtain various permits

for each of the proposed garbage stations.

21

62. In connection with the City's adoption of the SWMP, DSNY was required

to conduct an environmental review of the SWMP, including the garbage stations proposed in

the SWMP, in compliance with the New York State Environmental Quality Review Act,

Environmental Conservation Law § 8-0101, et seq. ("SEQRA"). DSNY therefore prepared a

final environmental impact statement ("RIS") and, on February 13, 2006, issued a statement of

findings under SEQRA in which it concluded that the East 91st Street garbage station would

have no significant adverse environmental impacts that could not be mitigated,

63. DSNY also was required to submit the proposed construction of the four

new solid waste transfer stations for review and approval pursuant to the Uniform Land Use

Review Procedure (or "ULURP") established by §§ 197-c, 197-d and 199 of the City's Charter.

On January 12, 2005, in the exercise of its advisory role under ULURP, the local community

board responsible for the district in which the East 91st Street site is situated recommended

disapproval of the proposed construction of the new solid waste transfer station at the site. On

January 27, 2005, the Manhattan Borough President similarly recommended disapproval of the

project, On April 13, 2005, the City Planning Commission — the majority of whose members are

appointed by the Mayor — voted to approve the project. On June 8, 2005, the City Council voted

to disapprove the City Planning Commission's determination, On June 14, 2005, Mayor

Bloomberg vetoed the City Council's resolution, thus reinstating the City Planning

Commission's approval of the East 91st Street transfer station.

64. A lawsuit challenging the City's determination to build the East 91st

Street transfer station and the adequacy of the FEIS was unsuccessful. Ass 'n for Community

ReihrinINlow ("ACORN") v. Bloomberg, 52 A.D.3d 426, 861 N.Y.S.2d 325 (1st Dep't), app.

denied, 11 N,Y.3d 707, 868 N.Y.S.2d 599 (2008).

22

65, A lawsuit challenging construction of the ramp For the proposed transfer

station as violative of New York's public trust doctrine (vvhich requires legislative approval of a

non-park use of a dedicated public park) also was unsuccessful. Powell v. City of New York, 85

A.D.3d 429, 924 N.Y.S.2d 370 (1st Dep't), app. denied, 17 N.Y.3d 715, 933 N.Y.S.2d 655

(2011).

66. DSNY also applied to NYSDEC for permits necessary for construction

and operation of the East 91st Street facility, including a solid waste management facility permit,

a tidal wetlands permit, a use and protection of waters permit and a water quality certification.

On October 14, 2009, NYSDEC issued the requested permits to DSNY. A lawsuit challenging

these permits was unsuccessful, Gracie Point Comm 'ty Council v. NY.S. Dep't of

Environmental Conservation, 92 A.D.3d 123, 936 N.Y.S.2d 342 (3d Dep't 2011), app. denied,

19 N.Y,3d 807, 950 N.Y.S.2d 105 (2012).

67, The SWMP, as proposed in 2004 and approved in 2006, includes an

implementation schedule under which the East 91st Street garbage station was to be constructed

by 2006 and the other three facilities were to be in operation by 2011. None of these milestones

has been achieved. Work on two other facilities that are components of the SWMP — i.e.,

recycling facilities to be built On West 59th Street and Gansevoort Street in Manhattan — also has

not yet begun. In March 2012, DSNY prepared a Technical Memorandum to consider whether

to prepare a supplemental environmental impact statement for the SWMP due to changes in the

implementation schedule, the availability of new information and changes in guidance

concerning environmental reviews. DSNY decided not to prepare a supplemental EIS, and

despite State regulations to the contrary, NYSDEC did not require DSNY to modify the SWMP

in light of the missed milestones. These issues arelhe subject of a lawsuit that now is sub judice

23

before a Justice of the Supreme Court of the State of New York. Matter of Kellner, et at v. City

of New York Dep't of Sanitation, et al., New York County Index No. 102950/12,

• The Statutory and Regulatory Scheme for a 404 Permit

68. The Clean Water Act (33 U.S.C. § 1251, et seq.) was enacted in 1972 with

a stated purpose "to restore and maintain the chemical, physical, and biological integrity of the •

Nation's waters." 33 U.S.C. § 1251(a). The Act prohibits the discharge of any "pollutant" into

the "waters of the United States" except in compliance with the Act. Id, at § 1311(a). Section

.404 of the Act, 33 U.S.C. § 1344, authorizes the Secretary of the Army to issue permits for the

discharge of dredged or fill material into the waters of the United States if certain conditions are

met. The § 404 permitting program is administered by the Corps. Unless expressly exempted by

the statute, all discharges of dredged or fill material into waters of the United States must he

authorized by the Corps through the issuance of a § 404 permit. The discharges that would result

from construction of the East. 91st Street garbage station are not exempt from this requirement,

69, 'Ile Clean Water Act's implementing regulations set forth general

regulatory policies for evaluating permit applications, including a "public interest review." 33

CFR § 3204., The Corps is prohibited from issuing a § 404 permit if it "determines that it would

be contrary to the public interest." Id. at § 320.4(a)(1). In making this determination, the Corps

is required to consider, among other things, conservation, economics, aesthetics, general

environmental concerns, wetlands, historic properties, fish and wildlife, flood hazards, land use,

recreation, safety, and the "needs and welfare of the people," Id,

70. The Clean Water Act's implementing regulations also require the Corps to

consider related laws, such as the Fish and Wildlife Act (16 U.S.C. § 742a, et seq.), the

Endangered Species Act (16 U.S.C. § 1531, et seq,) and the Coastal Zone Management Act (16

24

U.S.C. § 1451, et seq.), and consult with other agencies, including the U.S. Fish and Wildlife

Service, the National Marine Fisheries Service and various State agencies, See 33 CFR

§§ 320.2(b), 320,3(i), 320.4(c).

71. Pursuant to authority granted by the Clean Water Act (33 U.S.C.

§ 1344(b)), the U.S. EnvironmentatProtection Agency (the "EPA") has published guidelines for

issuance of a § 404 permit. These guidelines, which are binding on the Corps, are often referred

to as the "404(b)(l) Guidelines," and are codified at 40 CFR Part 230. The Corps is prohibited

from isguing a § 404 permit unless there is "sufficient information to make a reasonable

judgment as to whether the proposed discharge will comply with these Guidelines," 40 CFR

§ 230.12(a)(3)(iv). The 404(b)(1) Guidelines prohibit the issuance of a permit if there is a

practicable alternative that would have less of an adverse impact on the aquatic ecosystem (40

CFR § 230,10(a)), or if the discharge "will cause or contribute to the significant degradation of

the waters of the United States" (40 CFR § 230.10(c)),

72. The Guidelines also require the applicant to take "appropriate and

practicable steps" to "minimize potential adverse impacts of the discharge on the aquatic

ecosystem." 40 CFR § 230.10(d). The regulations that have been promulgated by the Corps

authorize the Corps to deny a § 404 permit based upon "the lack of appropriate and practicable

compensatory mitigation options," 33 CFR § 332.1(c)(3).

73. In addition, the issuance of a § 404 permit is a "major federal action"

within the meaning of NEPA. 40 CFR § 1508.18(b)(4), NEPA is intended to "promote efforts

which will prevent or eliminate damage to the environment." 42 U.S.C. § 4321. The purpose of

NEPA is to "help public officials make decisions that are based on understanding of

25

environmental consequences, and take actions that protect, restore, and enhance the

environment," 40 CFR § 1500.1(c).

74. The Council on Environmental Quality ("CEQ") has promulgated

regulations implementing NEPA. 40 CFR Part 1500. Pursuant to these regulations, all Federal

agencies are required to prepare, for "major federal actions" such as the issuance of a § 404

permit., an Environmental Assessment (or "EA") that "provide[sj sufficient evidence and

analysis" to allow the agency to determine whether it is necessary to prepare an environmental

impact statement, or whether, instead, the agency may issue a finding of no significant impact,

known as a "FONSI." 40 CFR § 1508.9.

75. The Environmental Assessment must analyze the need for the proposed

action, alternatives to the proposed action and the environmental impacts of the proposed action

and alternatives. 40 CFR § 1508,9(b).

• 76. Pursuant to authority granted under 40 CFR § 1507.3, the Corps has

adopted its own procedures for implementing NEPA. 33 CFR § 230.1 et seq., Part 325,

Appendix B. The Corps' NEPA regulations require its district engineer to "establish the scope of

the NEPA document to address the impacts of the specific activity requiring fa] permit and those

portions of the entire project over which the district engineer has sufficient control and

responsibility to warrant Federal review." 33 CFR Part 325, App. 13, § 7(b)(1). These

regulations further provide that, "for those activities that require" a permit from the Corps "for a

major portion of a shoreside facility, the scope of analysis should extend to upland portions of

the facility," and should not be limited to consideration of only the impacts on the waters of the

-United States. Id, at § 7(b)(3). The regulations explain:

For example, a shipping terminal normally requires dredging, wharves, bulkheads, berthing areas and disposal of dredged material in order to

26

function. Permits for such activities are normally considered sufficient Federal control and responsibility to warrant extending the scope of analysis to include the upland portions of the facility.

la.

J. The Review of DSINV's Application for a 404 Permit

77. On or about August 14, 2008, DSNY submitted to the Corps its

application for the § 404 permit under the Clean Water Act that is required to construct the

platform and garbage station and the over-water portion of the access ramp, and to perform

associated fill and dredging.

78. By letter dated August 14, 2008, the Corps initiated informal consultation

with the Protected Resources Division of the National Marine Fisheries Service under the

Endangered Species Act "pertaining to the occurrence of shortnose sturgeon (Acipenser

brevisrostrum), sea turtles (various species), and marine mammals (various species) in the

vicinity of the proposed East 91st Street MTS project," At that time, however, the Corps already

had concluded that "construction arid dredging activities" for the proposed garbage station "may

affect, but are not likely to adversely affect the listed aquatic endangered and threatened species"

(emphasis added), and the Corps sought the Protected Resource Division's concurrence with this

conclusion,

79. At the same time, the Corps also initiated what it characterized as an

"abbreviated" Essential Fish Habitat consultation with the Habitat Conservation Division of the

National Marine Fisheries Service, transmitting to the Habitat Conservation Division a copy of a

four-year-old Essential Fish Habitat assessment that had been prepared for DSNY in 2004. This

assessment was based on sampling data that had been obtained al the proposed site on a single

occasion in March 2004, and did not include the collection of data regarding adult finfish.

27

However, even this assessment revealed that the East 91st Street site contained abundant eggs

and larvae for some species subject to Essential Fish Habitat management, including winter

flounder.

80. On the following day, August 15, 2008, the Corp issued a public notice

that it had received DSNY's application, was requesting public comments and would hold a

public hearing. This notice to the public also contained a preliminary determination by the Corps

that the proposed activity was not likely to affect any federally-listed endangered or threatened

species or its critical habitat, and that the adverse effects on Essential Fish Habitat would not be

substantial,

81. On September I, 2008, the 1.1abi tat Conservation Division advised the

Corps that completion of the necessary Essential Fish Habitat consultation would require the

submission of a proposed m ligation plan.

82. On September 16, 2008, the Corps held a public hearing on DSNY's

permit application. There were 88 speakers at the hearing, the overwhelming majority of whom

opposed the garbage station.

83. On October 1, 2008, the National Marine Fisheries Service's Protected

Resource Division advised the Corps that it concurred with the Corps' conclusion that

construction and dredging activities for the East 91st Street garbage station were "not likely to

adversely affect any federally listed endangered species," and further noted that "shortnose

sturgeon and sea turtles are rarely found in the East River." However, this advice did not

conclude the consultation with the National Marine Fisheries Service's Habitat Conservation

Division regarding the effects of the project on species that are protected by Essential Fish

Habitat managemea

28

84. DSNY did not provide the Corps with a proposed mitigation plan for the •

adverse impacts on Essential Fish Habitat until May 2011, more than two and one-half years

after it was requested. This plan, as proposed by DSNY in 2011, purported to mitigate only the

impacts that.would result from the fact that the new East 91st Street facility would have a larger

footprint than the existing defunct structure, and therefore would increase the area of water in the

river that is covered by a platform and not exposed to sunlight.

85, On July 25, 2011, the Corps forwarded DSNY's mitigation plan to the

Habitat Conservation Division with a transmittal letter in which the Corps reiterated its August

14, 2008 determination that the project would not adversely affect aquatic species that are listed

under the Endangered Species Act as endangered or threatened,

86. On the same day, July 25, 2011, the Corps issued a public notice that

DSNY had submitted the proposed mitigation plan.. Plaintiff Community Council and thousands

of other individuals then wrote to the Corps, expressing their objections to the proposed transfer

station and the mitigation plan.

87. The mitigation plan states that its objective is to address unavoidable

impacts on open water resulting from construction of the garbage station, which is expected to

cover about 1.13 acres of open water i.e., 0.98 acres by the footprint of the garbage station

itself plus 0,15 acres by the barges moored at the site. The plan addresses these impacts at a ratio

of 11. In other words, because the garbage station will cover 1.13 acres of water, the plan

proposes to create 1.13 acres of open water elsewhere. This new open water is proposed to be

created at an existing South Bronx marine transfer station and at the Bush Terminal in Brooklyn,

both of which aro owned by the City. At the South Bronx site, DSNY would remove over-water

structures to create about 0.97 acres of open water, while at Bush Terminal DSNY already is

29

removing several piers as part of its mitigation for another new transfer station, and would

remove additional fill and debris to create an additional 0.14 acres of open water.

88. Significantly, the Hush Terminal site is contaminated. it has been

designated by NYSDEC as a New York State Inactive Hazardous Waste Site, and has been

undergoing remediation.

89. On August 24, 2011, the Habitat Conservation Division provided the

Corps with its comments on DSNY's proposed mitigation plan, including questions as to

whether the proposed off-site mitigation would be "potentially out-of-kind" with the species to

be disturbed at East 91st Street. The Habitat Conservation Division also expressed concern that

Bush Terminal had "a history of contaminated soil, groundwater, and sediments that have

thwarted previous efforts to use this site."

90. In response to these comments, the Corps asked DSNY to provide

additional information, including detailed current information about species assemblages at East

93st Street and at the proposed mitigation sites, and information about contamination at Bush

Terminal,

91. DSNY responded by trying to persuade the Corps that DO further

information was necessary. Eventually, however, on January 9, 2012, DSNY provided a partial

response, consisting of some information about contamination at Bush Terminal, which included

a January 2012 Essential fish Habitat assessment of the site with a perfunctory discussion of the

effects of toxicity on fish eggs and larvae.

92. The Corps then responded to the Habitat Conservation Division's concern

that the off-site mitigation would be "potentially out-of-kind" with species present at the East

91st Street .site, asserting that on-site mitigation was not practicable, and that the off-site

30

mitigation sites in fact would provide "in-kind" mitigation and "would have a greater likelihood

of offsetting the proposed impacts." This assertion was based on DSNY's January 2012

Essential Fish Habitat assessment, which indicated, according to the Corps, "that the existing

habitat, including salinity, temperature and dissolved oxygen at the proposed project site and the

two proposed mitigation sites are similar:' and that, with some exceptions, "the species and life

stages of EFH,designated species expected at each site are the same."

93. On February 22, 2012, DSNY provided an additional report dated

February 2012 and entitled "Evaluation of Fish Species Assemblages at the Proposed East 91st

Street Converted Marine Transfer Station and South Bronx MTS and Bush Terminal Mitigation

Sites." This report re-confirmed the prior findings from 2004 that the East 91st Street site

contains (and thus provides habitat for) winter flounder eggs and larvae, and also found that the

site contains adult winter flounder — a phenomenon that DSNY's 2004 field work had not

investigated or considered.

94. On March 8, 2012, the Corps forwarded this report to the Habitat

Conservation Division, and stated that the Corps bad determined that "the project as proposed

may adversely affect EFH or EFH-managed species that could be found at the sites and/or that

may potentially use the sites, but ... will not cause substantial impacts" (emphasis added). The

Corps requested concurrence with these conclusions within 30 days.

95. The Habitat Conservation Division responded to the Corps' request for

concurrence on July 12, 2012. In its response, the Habitat Conservation Division acknowledged

that the project may adversely affect Essential Fish Habitat, and set forth conservation

recommendations to be implemented in connection with demolition, construction and operation

31

of the East 91st Street garbage station, demolition activities at the South Bronx mitigation site,

and mitigation activities at the Bush Terminal site.

K. The Corps' Issuance of the § 404 Permit, and Its Environmental Assessment

96. On July 20, 2012, the Corps issued the requested § 404 permit to USNY.

A copy of the permit is annexed hereto as Exhibit 3. Issuance of the permit was supported by a

July 17, 2012 "Memorandum for Record," which contained sections constituting the Corps'

Environmental Assessment under NEPA, its evaluation of the 404(b)(1) Guidelines, its review of

the public interest and its statement of findings. This Memorandum for Record was made

available to plaintiffs on August 6, 2012. A copy of the memorandum is annexed hereto as

Exhibit 4.

97. The Corps' Memorandum for Record states that the Colps had determined

that the basic project purpose was "to provide a marine terminal to load sealed containers of solid

waste onto barges," and that the overall project purpose was "to reconstruct a Marine Transfer

Station so as to reduce truck traffic and air pollution and allow for equitable distribution of waste

transfer, by providing barge transportation of solid waste for the residents of Manhattan" (p..2).

98. The Corps also determined that the project is water dependent, as follows: .

"To fulfill the basic project purpose in this case, direct access to a navigable waterway is

required for barge transportation of solid waste, therefore the project is determined to be water

dependent" (p. 2).

99, The Corps further determined in its Memorandum for Record that the

proposed discharge necessary for construction of the garbage station complied with the 404(b)(1)

Guidelines, and that issuance of the permit was not contrary to the public interest (p. 146).

32

100. The Corps also determined that "this permit action would not significantly

affect the quality of the human environment," and that, "Wherefore, an Environmental Impact

Statement will not be required," so that a finding of no significant impact, or "FONSI," could be

issued (p, 144). In justifying this conclusion, the Corps observed that an FEIS had been prepared

by DSNY pursuant to SEQRA, and the Corps stated that it had considered the information in this

FEIS in its review of DSNY's application for the § 404 permit (p. 146).

First Claim for Relief (Violation of the Clean Water Act by Issuing a § 404 Permit

That Is Contrary to the Public Interest)

101. Plaintiffs repeat and reallege, as if fully here set forth, the allegations

contained in paragraphs 1 through 100 of this complaint,

102. The Clean Water Act and the mandatory 404(b)(1) Guidelines

promulgated thereunder required the Corps to weigh the benefits of the permitted activity against

its reasonably foreseeable detriments, and prohibited issuance of a § 404 permit if the permit

would be contrary to the public interest. 33 CFR § 320.4. In performing this analysis, the Corps

was required to consider and evaluate several enumerated factors, including economics,

aesthetics, general environmental concerns, fish and wildlife values, flood hazards, land use,

recreation, safety, and the "needs and welfare of the people," Id. at § 320.4(a)(1).

103, The Corps' determination that that the project would not have significant

negative impacts and therefore would not be contrary to the public interest was arbitrary and

capricious, completely irrational and an abuse of discretion.

104. With respect to economics, the Corps accepted DSNY's contention that

the permitted activity would have an indirect and cumulative beneficial economic impact

because it would reduce the cost of waste disposal by diminishing reliance on high-cost landfill.

33

facilities, and would reduce fuel and truck maintenance costs by decreasing DSNY's reliance on

trucks (p. 42), However, the May 2012 report of New York City's own Independent Budget

Office found that the present value or continuing to transport Manhattan's residential waste to

private waste transfer stations in New Jersey over the next twenty years would be $218.9 million

in comparison to the $554,3 million that it would cost to build the proposed East 91st Street

garbage station and use it to containerize and export solid waste. The report found that it would

cost $90 per ton of garbage to continue the existing transport of Manhattan's residential waste to

New Jersey in comparison to $238 per ton of garbage to use the proposed East 91st Street

garbage station.

105. With respect to aesthetics, the Corps determined that the project would not

have any direct adverse impacts on aesthetic resources because the new garbage station would

replace an existing one, and the scale and appearance of the new facility would not contribute to

a substantial change of views of the waterfront (p. 44). However, the new garbage station would

be more than double the size of the existing defunct facility, and would be ten stories high.

Therefore, views in fact would be adversely affected. The detrimental impact on views is even

greater if one considers the fact that the logical alternative to building the proposed transfer

station is to demolish the defunct existing one.

106. With respect to "general environmental concerns," the Corps focused on

impacts on the East River. However, as discussed elsewhere in this complaint, the significant

adverse environmental impacts of the proposed transfer station and its ramp extend far beyond

their effect on the East River. Furthermore, even as to the East River, the Corps determined that

the project would not have significant impacts because the construction activities and dredging

for the garbage station would cause only a temporary loss of bottom habitat and a temporary

34

increase in turbidity in the water column (p, 45). This conclusion was arbitrary and capricious,

and irrational, because the record establishes that in fact there will be adverse impacts on fish

and fish habitat.

107. Similarly, with respect to "fish and wildlife values," the Corps determined

that direct impacts on fish and wildlife at the East 91st Street site would be temporary

construction-related impacts such as increases in noise and turbidity, and a permanent increase in

the amount of formerly open water that would be covered and thus screened from any sunlight.

The Corps further concluded that direct impacts on fish and wildlife at the Bush Terminal

mitigation site in Brooklyn would include temporary construction impacts such as increases in

noise and turbidity, The Corps also determined that there would be no indirect or cumulative

impacts on fish and wildlife because there would be no adverse effects on threatened or

endangered species, and no substantial adverse effects on Essential Fish Habitat (p. 54),

However, the Corps was arbitrary and capricious and irrational in determining that the project

would not result in substantial adverse impacts on fish and wildlife.

108. With respect to flood hazards, the Corps determined that there would be

no direct or indirect impacts on flood hazards because the proposed pier for the garbage station

would be built at an elevation of six inches above the 100-year flood plain (p. 64). However, the

East 91st Street site is located within New York City's Hurricane Flood Zone A, which faces the

highest risk of flooding from any hurricane that makes landfall close to the City. Hurricane

Sandy recently pummeled New York City, causing the F.D.R. Drive and residential streets near

East 91st Street to flood. Buildings near the site, such as Asphalt Green's facilities, suffered

damage from the storm. Last year, Hurricane Irene also caused the F.D,R. Drive to flood.

Severe hurricanes in New York City appear to have become yearly events, not 100-year events.

35

The Corps acted arbitrarily and capriciously in failing to consider the fact that flood elevations

are rising and will outpace the lifespan of a new garbage station.

109. With respect to land use, the Corps accepted DSNY's contention that the

project would not have any substantial direct impacts on land use because the project supposedly

consists of reconstruction of an existing facility, and is consistent with local zoning and past use

of the site as a marine transfer station. This conclusion was arbitrary and capricious, irrational

and an abuse of discretion. The project will not reconstruct an existing facility, because the

defunct facility will be entirely demolished and replaced with a much larger new facility.

Furthermore, the nature of the surrounding area has changed completely in the decades since the

now defunct facility was created, in that at that former time the area was industrial in character,

while it has been transformed to a densely populated and highly diverse residential neighborhood

— a transformation that has been supported and encouraged by decades of consistent City land

use policies that included multiple rezonings intended to encourage new residential development.

The site's continuing designation as an M1-4 zone is anomalous and obsolete, and a result of the

fact that the City simultaneously owns the site and controls the zoning. Finally and in any event,

under the criteria for analyzing potential alternative sites that were adopted by the Corps (as

discussed in further detail elsewhere in this complaint), M1 zones are now inappropriate

locations for new garbage stations.

110. The Corps' determination that the use of the site for a garbage station

would not interfere with the neighborhood and the parks and recreational facility that abut the

site despite the odors, noise, truck traffic and emissions was especially arbitrary and capricious,

irrational and an abuse of discretion. The Corps dismissed numerous comments from the public

and public officials that the garbage station would have adverse impacts resulting from increased

36

truck traffic and adverse impacts on schools and parks. The Corps concluded that these impacts

pertained only to the operation of the garbage station, which is not regulated by the Coips' § 404

permit. For example, the Corps concluded that the "proposed project would not interfere with

use o f the Esplanade, Asphalt Green, or other facilities in the vicinity because the existing ramp

will be reconstructed in place and the proposed MTS is an overwater structure" (p. 66). This

conclusion is based on an improperly truncated assessment of the impacts of issuing the § 404

permit. The Corps' permit allows the creation of a new garbage station that would operate in a

residential neighborhood 24 hours per day, six days per week, and an access ramp that would

extend from a dense residential neighborhood across the Asphalt Green campus. As the Corps'

issuance of this permit is an essential prerequisite to the construction and operation of the

garbage station, it was a dereliction of responsibility for the Corps to limit its review of land use

impacts to only temporary construction-related impacts, and to ignore the effects of the garbage

station's operations.

111. Similarly, with respect to recreation, the Corps only considered some (but

not all) temporary construction impacts on Asphalt Green, and ignored the effects of the garbage

station's operations on the East River Esplanade and Carl Schurz Park. The Corps determined

that direct impacts On Asphalt Green only would be temporary impacts from construction traffic,

noise and dust, and that upon completion of construction, levels would return to the "pre-existing

condition," This conclusion is irrational, and exposes the narrow tunnel vision that led the Corps

to accept DSNY's analysis of impacts of the § 404 permit. The previously existing transfer

station and ramp have been inactive for 13 years. Once construction is complete, there could be

no return to "pre-existing conditions," because where there has been no activity for 13 years,

there would be a massive garbage station operating six days per week, 24 hours per day,

37

112. The Corps did not even address the fact that construction would impede

access between Asphalt Green's playing fields and the Murphy Center and the Aqua Center via

the open7air passageway under the access ramp, which is in constant use by children at Asphalt

Green's day camp who go back and forth between the fields and Murphy Center, and the Aqua

Center, all day. This passageway also serves as a primary access point to the Aqua Center for

visitors to Asphalt Green who arrive at. the 90th Street entrance.

113. The Corps also concluded that, while the project would have indirect and

cumulative impacts on Asphalt Green such as increased traffic, noise and odors, a screen on the

new ramp would minimize these noxious impacts of truck traffic. The fact is that the Corps has

relied on unsupported speculation . by DSNY as to the effectiveness of these components of the

ramp. The best available evidence, by contrast, is that the various techniques and methodologies

that DSNY proposes to use to address odors and noise are unproven and not nearly as effective

as suggested by DSNY and accepted by the Corps. The odors and noise likely would be

extremely disruptive and detrimental to the surrounding residential community, to the public

parks and to the Asphalt Green recreational complex.

114, In addition, the Corps disregarded the potential adverse impacts on

Asphalt Green users of hazardous materials from demolition and construction of the ramp and

the new transfer station. Hazardous materials may be unearthed by the excavation of soil to

remove and install pilings for the ramp, and dust from lead-based paint and PCB-containing

materials may be released into the air during demolition of the old ramp and transfer station.

DSNY has not analyzed these potential impacts, and the Corps disregarded that failure.

115. With respect to safety, the Corps determined that there would be no direct

or indirect impacts on human health and safety from construction of the garbage station (p. 91).

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However, the Corps minimized the safety hazard to Asphalt Green's visitors caused by .

construction. In addition, the Corps did not consider the obvious adverse impacts on safety from

heavy truck traffic en the ramp traversing Asphalt Green. This traffic would especially endanger

children, who continuously cross the ramp to access Asphalt Green's Aqua Center. The truck

traffic entering and leaving the ramp at its York Avenue end also would endanger the numerous

pedestrians in the neighborhood, not only those who visit Asphalt Green but also those who just

walk past its campus.

116. Regarding the needs and welfare of the people, the Corps dismissed public

comments regarding increased asthma, air pollution and vermin, concluding that these issues

pertain to operation of the garbage station, which would be regulated under a NYSDEC permit.

Therefore, the Corps completely avoided any consideration of these important issues.

Furthermore, neither DSNY nor the NYSDEC permit regulate private garbage trucks, which are

notoriously dirtier, smellier and louder than DSNY trucks and would access the transfer station

12 hours per day. Here, too, the Corps improperly restricted its public interest review to

construction activities only, ignoring the fact that the § 404 permit is an essential prerequisite to

the establishment of this garbage station and its aecess ramp.

117, The Corps also abdicated is responsibility by disregarding comments

regarding the irrationality arid impropriety of siting a garbage station within 300 feet of a large

public housing complex, several other apartment buildings, two parks and the Asphalt Green

complex. Instead, the Corps contented itself with stating that, because there are no issues of

overriding national importance, the Corps would accept the State and local determinations with

respbet to this issue,

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118. The Corps failed to fulfill its obligation to weigh the benefits of the project

against its reasonably foreseeable detriments. The Corps glossed over the projeet's numerous

severe detriments and improperly limited its scope of review to temporary construction activities.

The Corps' finding that the project does not contravene the public interest and tbe Corps'

issuance of the § 404 permit were arbitrary, capricious, an abuse of discretion and unlawful.

Second Claim for Relief (Violation of the Clean Water Act by Failing to Comply with the 404(b)(1) Guidelines'

Requirement of an Analysis of Alternatives)

119, Plaintiffs repeat and rcallege, as if fully here set forth, the allegations

contained in paragraphs 1 through 100 of this complaint,

120. The Clean Water Act's 404(b)(1) Guidelines required the Corps to analyze

alternatives to the proposed regulated activity, and prohibited issuance of the permit if there are

practicable alternatives that would have less of an adverse impact on the aquatic ecosystem. 40

CFR § 230,10(a),

121. In considering DSN Y's application for a § 404 permit, the Corps failed to

undertake an independent evaluation of meaningful alternatives. Instead, the Corps avoided its

responsibilities by artificially limiting its analysis to alternatives that had already been rejected

by the City in 2004, over eight years ago.

122, As acknowledged in the Corps' Memorandum for Record, the criteria used

by DSNY in 2004 to evaluate off-site alternatives were: (a) the technical and operational

feasibility of other transfer station sites with the capability to process at least 1,000 tpd of waste;

(b) conformance to applicable zoning and proximity to sensitive other uses as outlined in siting

rules that had been promulgated by DSNY itself in October 1998; (c) adherence to legislative

40

restrictions on the use of sites for transfer stations; (d) suitability for export of waste by barge or

rail; and (e) accessibility to collection vehicles from nearby truck routes.

123. One of these criteria — conformance to DSNY's October 1998 siting rules

— provides that transfer stations may only be located in either an M2 or M3 zone; may not be

located in M1 zones; and may not be located within 400 feet of a residential district, a public

park or a school (p. 24).. In 2004, on the basis of these criteria, the City itself rejected potential

alternative sites in part because they were located in an M1 zone and within 400 feet of parks.

At the same time, however, the City refused to apply these same criteria to reject the East 91st

Street site notwithstanding the fact that it abuts parks, is located in an M1 zone and is much less

than 400 feet from a residential zone.

124, The Corps concluded that the criteria used by the City in 2004 as the basis

for its evaluation of off-site alternatives were reasonable. At the same time, the Corps also found

that some of the alternative sites that previously had been rejected by the City in fact would

result in fewer adverse impacts on water. Nevertheless, thc Corps blindly adopted the City's

2004 conclusion that there were no practicable alternatives to the East 91st Street site. The

Corps' reliance on the City's reasoning for rejecting these sites eight years later was arbitrary

and capricious, and failed to satisfy the Corps' obligation to consider alternatives.

125. Furthermore, it was particularly arbitrary and capricious for the Corps to

adopt criteria that were used to reject alternative sites on the basis of their proximity to parks and

residential districts and their M1 zoning, while at the same time approving a permit to construct a

transfer station at the East 91st Street site, which is abutted by parks and a residential district,

and is within an M1 zone.

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126. During the public comment period, several commentators, including

plaintiff Community Council,.also pointed out that the Corps should have considered the Harlem

River Yard facility in the Bronx as an additional alternative site. This facility is located only

one-half mile from Manhattan. It is in a manufacturing area, has truck-to-rail access, and would

have no impacts on water. The Corps dismissed this alternative as infeasible because it was

inconsistent with the concept of "borough self-sufficiency" (p. 28), which is a purely political

consideration that is intended to placate the resentment by some residents of outer boroughs that

locations in their boroughs are.the sites of transfer stations that process commercial waste

generated in Manhattan. Of course, this resentment ignores the fact that huge numbers of

residents from the outer boroughs and suburbs (as well as visitors from further away) come to

Manhattan, generate commercial waste there and do not take their garbage back home with them .

when they leave. The concept of "borough self-sufficiency" has no relationship to actual

environmental issues and is an improper basis upon which to refuse to consider a viable and

environmentally more advantageous alternative site. The Corps' reliance on this political notion

violated its obligations under the 404(b)(1) Guidelines to consider alternatives.

127. The 404(b)(1) Guidelines state that an alternative is practicable if it is

"available and capable of being done after taking into consideration cost, existing technology,

and logistics in light o C overall project purposes," 40 CFR § 230.10(a)(2). Thc Harlem River

Yard facility is available, fully constructed and operational, and would, like the East 91st Street

garbage station, allow the transfer of containerized waste to disposal sites without tracks. In

addition, plaintiffs believe that the Harlem River Yard facility has the capacity to accept the

additional waste that DSNY wants to process at the East 91st Street location. Therefore, the

Corps should have considered this alternative.

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128. By failing to adequately analyze alternatives and dismissing a practicable

alternative that would have less impact on waters of the United States, the Corps acted arbitrarily

and capriciously and in violation of the Clean Water Act.

Third Claim for Relief (Violation of the Clean Water Act by Wrongfully Finding Compliance with the 404(b)(1)

Guidelines' Requirement That the Project Will Not Degrade the Waters of the United States)

129. Plaintiffs repeat and reallege, as if fully here set forth, the allegations

contained in paragraphs 1 through 100 of this complaint.

130. The Corps is prohibited from issuing a § 404 permit unless there is

sufficient information to make a reasonable judgment as to whether a proposed discharge of

dredged or fill material will comply with the 404(b)(1) Guidelines. Furthermore, the Corps is

prohibited from issuing the permit if the discharge will cause or contribute to significant

degradation of waters. 40 CFR §§ 230.10(c), 230.12(a)(3)(iv), Significant degradation includes

adverse effects on fish, life stages of fish, physical and chemical characteristics of the aquatic

ecosystem such as the substrate, and threatened or endangered species, 40 CFR § 230.10(c).

131. The Corps' determination that there would be no substantial adverse

impacts on Essential Fish Habitat or on species with a managed Essential Fish Habitat was based

on its conclusions that the facility's covering of open water would be offset by compensatory

mitigation creating new open water at a ratio of 1:1 at the Bronx and Brooklyn mitigation sites,

that the physical and chemical characteristics of the East 91st Street site and the mitigation sites

are comparable, and that similar fish species are found at the East 91st Street site and the

mitigation sites.

132. The Corps' determination that there would be no substantial adverse

impacts did not take into account the unique habitat that exists at the East 91st Street site as a

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result of the site's rocky substrate and irregular bottom topography, which is attractive to winter

flounder. The Corps did not acknowledge or consider that the dredging needed fbr the East 91st

Street site, and the dredging proposed at the two mitigation sites, would destroy this topography

and thereby adversely affect the population of winter flounder and other species that now thrive

at all three sites.

133. Dredging disturbs aquatic ecosystems by releasing toxic chemicals from

bottom sediments into the water column and by increasing turbidity, which can affect the

metabolism of aquatic species and interfere with spawning. In addition, organisms may ingest

the contaminated water and pass the toxins along the food chain. There also may be secondary

impacts on aquatic and benthic organisms' metabolism and mortality. Dredging also flattens the

river bottom, thereby destroying irregular surfaces that have developed over time and provide

unique habitat for fish and other organisms.

134. The materials submitted to the Corps by DSNY in support of its permit

application showed that winter flounder live and breed at the East 91st Street site and the

mitigation sites. However, the Corps failed to acknowledge that dredging at these sites will

adversely affect winter flounder habitat that has naturally developed over many years; and that

has aided in the recovery of the winter flounder population from a nearly complete collapse.

135. The Corps determined that adverse impacts on Essential Fish Habitat

would result from the proposed project but would not be substantial. Without any discussion in

the Memorandum for Record of the impacts on winter flounder, the Corps dismissed any impacts

on Essential Fish Habitat as temporary and insignificant. The Corps reasoned that there would

only be a temporary increase in turbidity in the water column, a temporary loss of bottom habitat

and a temporary loss of benthic species, and the Corps conclusorily stated that, upon completion

44

of the project, unspecified "fish" would return to the site. This determination ignores the fact

that the river bottom would be irrevocably altered by the dredging and that, therefore, winter

flounder and other species that now are in naturally occurring habitat would be adversely

affected.

136. The Corps also determined that the dredging and other construction

activities at the East 91st Street site may affect, but are not likely to adversely affect, species in

the East River that are listed as threatened or endangered under the Endangered Species Act,

including shortnose sturgeon, Atlantic sturgeon and four species of sea turtles. Here, too, the

Corps asserted in conclusory fashion that "fish" would return to the site upon completion of the

work. However, the Corps failed to acknowledge or consider the fact that the use of a

mechanical dredge could directly affect threatened and endangered species, because it is

documented that sea turtles and shortnose sturgeon have been killed by mechanical dredges.

This potential impact never was addressed by DSNY or the Corps.

137. By failing to acknowledge or recognize the significant adverse effects on

Essential Fish Habitat and threatened or endangered species, the Corps failed to make a

reasonable judgment as to whether the project will comply with the 404(b)(1) Guidelines.

Therefore, the Corps acted arbitrarily and capriciously and in violation of the Clean Water Act in

issuing the § 404 permit.

Fourth Claim for Relief (Violation of the Clean Water Act by Failure to Comply With the 404(b)(1)

Guidelines Requirement of an Adequate Mitigation Plan)

138. Plaintiffs repeat and reallege, as if fully .here set forth, the allegations

contained in paragraphs 1 through 100 of this complaint.

139. The 404(b)(1) Guidelines obligated the Corps to impose upon DSNY the

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requirement that it take all appropriate and practicable steps to avoid or minimize adverse

impacts on waters. 40 CFR § 230.10(d), The mitigation plan that was propounded by DSNY

and accepted by the Corps fails to comply with this important requirement in several material

respects.

140. First, the mitigation plan fails to acknowledge, and fails to provide

mitigation for, important impacts on fish and fish habitat of construction and operation of the

proposed East 91st Street transfer station, and of implementation of the mitigation plan itself.

DSNY's submissions to the Corps showed that both the East 91st Street site and the mitigation

sites provide a unique habitat for finfish, including winter flounder, a species with a managed

Essential Fish Habitat that has been recovering from a near total population collapse. The data

provided to the Corps by DSNY showed that the population of winter .flounder at the East 93st

Street site increased from 2004 to 2012, indicating that the irregular mud and rock substrate that

has developed under the East 91st Street site over the years is particularly attractive to these fish.

However, dredging at the East 91st Street site and the two mitigation sites will create smooth

bottoms, thereby destroying the incgular mud and rock bottoms that have developed over

decades and have created habitat for winter flounder and other species. The mitigation plan does

not provide any mitigation for this adverse impact, but instead only addresses the impact of the

elimination of open water at the East 91st Street site resulting from the expansion of the existing

platform and the presence of barges moored at the site.

141. Second, to the extent that the mitigation plan addresses th s elimination of

open water at the East 91st Street site, it does so only by requiring DSNY to create new open

water, in an amount exactly equal to the open water eliminated at East 91st Street, by

demolishing facilities at the South Bronx marine transfer station and removing additional debris

46

and fill at Bush Terminal in Brooldyn. By relying on off-site mitigation created exclusively by

the applicant(Le., DSNY), the Corps has accepted the method of mitigation that, under the Clean

Water Act's compensatory mitigation rules (40 CFR § 230,93(b)), is the least favored method of

mitigation.

142. Third, the National Marine Fisheries Service's Habitat Conservation

Division criticized the use of Bush Terminal as a mitigation site because of its history of

contamination, DSN Y's only response to this concern was the assertion that contaminated soils

would be isolated by a fabric barrier. However, the effectiveness of this barrier is questionable at

best. The use of contaminated soil at a site intended to create new habitat for fish and

invertebrates is likely to cause the proposed mitigation to fail.

143. Fourth, the mere creation of new open water in an amount equal to the

amount of open water eliminated by the East 91st Street garbage station will not mitigate the loss

of population and loss of unique habitat. Instead, the loss of population and the loss of unique

habitat should have been taken into account in determining the mitigation ratio, which should be

much higher than 1:1 in order to mitigate the blow that the recovering winter flounder population

will suffer and the loss of unique habitat for winter flounder and other species.

144. Fifth, the mitigation plan does not contain performance standards, which

are standards the applicant must propose to enable measurement of the effectiveness of the

mitigation plan. The compensatory mitigation rules expressly require the imposition of

per for m ance standards, 40 CFR § 230,95.

145. Sixth, the mitigation plan does not provide for the monitoring that also is

required by the compensatory mitigation rules. 40 CFR § 230.96. Without monitoring, it will be

impossible to know whether performance standards are being met, whether the mitigation's

47

objectives are being met, and whether any changes need to be made to make the mitigation

effective. For example, without monitoring there would be no mechanism by which to gauge the

effectiveness of the fabric barrier that DSNY proposes to use at thc Bush Terminal mitigation

site. Similarly, there would be no mechanism by which to learn whether winter flounder and

other affected species are returning to the East 91st Street site and the mitigation sites once

dredging and other construction work have been completed.

146. By failing to require the City to take appropriate steps to mitigate

unavoidable adverse impacts, and by accepting an itiadequate mitigation plan, the Corps has

acted arbitrarily and capriciously and in violation of the Clean Water Act.

Fifth Claim for Relief (Failure to Comply with NEPA)

147. Plaintiffs repeat and reallege, as if fully here set thrth, the allegations

contained in paragraphs 1 through 100 of this complaint.

148. In purporting to perform its obligations under NEPA in connection with

DSNY's application for a § 404 permit and a related permit under § 10 of the Rivers and Harbors

Act (33 U.S.C. § 403), the Corps determined that the scope of its environmental review could be•

limited to the "footprint of the regulated activity within the delineated water" or the replacement

• of the existing defunct facility and associated dredging and mitigation activities (Memorandum

for Record, pp, 8, 10), Therefore, the Corps confined its environmental review to only the

temporary effects of construction of the transfer station and associated dredging, and disregarded

the impacts of the operation of the station and its access ramp.

149. The Corps' review was improperly limited in scope, because the Corps did

not assess the full impacts of construction and dredging on natural resources or Asphalt Green,

48

and it did not assess impacts arising from operations of the proposed transfer station on natural

resources and on adjacent upland areas in the Gracie Point neighborhood.

150. By the Corps' own description, the § 404 permit encompasses virtually the

entire facility other than thatportion of the access ramp that is not over water. The Corps thus

stated that the action requiring thc permit consists of "installation of the support piles,

installation of over water MIS platform and ramp, construction of enclosed waste transfer

processing building and transformer building, placement of fill within structural piles, and

dredging of access channel" (Memorandum for Record, p. 10). This major Federal action

comprises a substantial portion of the overall project.

151. Nevertheless, the Corps decided that there is insufficient Federal control

and responsibility over the upland portions of the project, and over the entire project, to expand

the scope of NEPA review beyond activities in the waters of the United States. The Corps thus

stated that it "does not believe it has authority nor does it believe it would be appropriate,

reasonable, or practicable for the Corps to try to assert de facto control over the upland portions

of the proposed project in this permit case" (p. 10).

152. This conclusion was arbitrary and capricious. The only part of the facility

not covered by the permit is reconstruction of a the portion of the ramp that is not over water.

Therefore, the Corps had substantial control of and responsibility for the entire project and, under

NEPA, should have considered the effect of its issuance of a § 404 permit on the upland areas

around the site, including the effects of operation of the project,

153. Refusing to consider upland effects of the project was arbitrary,

capricious, an abuse of discretion and unlawful. The Corps' jurisdiction encompasses the heart

of the project — the permitting of the over-water transfer station itself, which cannot be built

49

without the § 404 permit. All upland effects are the result of, and are entirely conditional upon,

the permitted activity. Without the permit, the project as conceived — i.e., a marine transfer

station — cannot be realized.

154. 'rhe Corps' own regulations under NEPA provide that if the Corps issues a

permit for a "major portion of a shoreside facility, the scope of analysis should extend to upland

portions of the facility." 33 CFR Part 325, App. B. § 7(b)(3). Here, the only portion of the

project that the Corps did not consider as part of the permitted activity is the construction of the

portion of the truck access ramp that is not over water, Clearly,. then, the permit covers and

authorizes a "mai or portion" of the proposed East 91st Street facility.

155. The Corps' regulations under NEPA provide as an example a shipping

terminal, which normally would require dredging, wharves, bulkheads, berthing areas and

disposal of dredged material. The Corps' regulations specifically recognize that, in that case,

extending the scope of analysis to include the upland portions of the facility is wan -anted. 33

CFR Part 325, App. B. § 7(b)(3). The East 91st Street transfer station is akin to a shipping

terminal, because it requires substantial in-water work, and performs a similar function of

allowing the shipment of materials by boat from shoreside,

156. By limiting its environmental review to construction of the transfer

station, the Corps failed to consider potential impacts on waters and the surrounding area from

operations of the facility, which, once completed, will operate as a waste transfer station 24

hours per day, six days per week. The Corps did not consider potential impacts on fish and

wildlife from operation of the facility and did not consider the potential impacts of operations on

nearby parks and residences, including the increase in odors, noise and air pollution, and the

effect on public health and safety.

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157. Furthermore, even if the Corps' scope of review was properly limited to

temporary construction impacts, the Corps failed to adequately analyze these potential impacts

on natural resources and Asphalt Green, including the risk of severe flooding, as recently

experienced as a consequence of Hurricane Sandy.

158, The Corps ignored the evidence showing that the East 91st Street site has

become important breeding habitat for winter .flounder and other finfish species. The Corps

failed to acknowledge that the dredging for construction of the project, and at the mitigation

sites, will destroy the river bottom, resulting in the loss of unique habitat that has developed over

a long period of time. Loss of this habitat will adversely affect benthic communities and

recovering .fish species with Essential Fish Habitat managed by the National Marine Fisheries

Service,

159, The Corps did not fully consider the impacts of potential flooding of the

waste transfer station, which will be located in a Zone A hurricane flood zone.

160. The Corps also failed to recognize that construction will impede access

between Asphalt Green's playing fields and the Murphy Center and the Aqua Center via the

open air passageway under the access ramp. This passageway is in constant use by children at

Asphalt Green's day camp who go back and forth between the fields and Murphy Center, and the

Aqua Center, many times a day. This passageway also serves as a primary access point to the

Aqua Center for visitors to Asphalt Green who arrive at the 90th Street entrance.

161. Demolition and construction activities also could expose Asphalt Green

users to hazardous materials that are unearthed by the excavation of soil to remove existing

pilings and install new ones for the ramp, or dust from lead-based paint and PCB-containing

materials that arc released into the air during demolition of the ramp and the former transfer

51

station. In addition, vibrations from demolition and construction activities are likely to damage

the Asphalt Green buildings and facilities, including possible structural damage to the Aqua

Center and its swimming pool. These potential dangers have not been studied by DSNY or

acknowledged hy the Corps.

162. The Corps acted arbitrarily, capriciously and in violation of NEPA by

issuing a FONSI for the East 91st Street garbage station based. on an improperly limited scope of

review and an inadequate analysis of the project's potential impacts.

Sixth Claim for Relief (Deprivation of Federal Constitutional Rights under Color of State Law)

163. Plaintiffs repeat and reallege, as if fully here set forth, the allegations

contained in paragraphs 1 through 100 of this complaint.

164. DSNY and the City have discriminated against plaintiffs by singling out

the East 91st Street site as the location for a new garbage station. DSNY and the City have not

sought to locate a new waste transfer station in any other comparable residential neighborhood,

and DSNY's own siting rules applicable to private waste transfer stations expressly prohibit a

waste transfer station from being located within 400 feet of residential zoning districts or parks.

16 RCNY § 4-32(b)(1)(ii). Yet DSNY expects that many commercial carters who now use these

private transfer stations would instead use DSNY's new East 91st Street facility. In addition,

DSNY has rejected alternatives to the proposed East 91st Street site for a new transfer station on

grounds that the other sites are too close to residential districts and parks, while at the same time

DSNY and the City seek to build a transfer station at East 91st Street despite the fact that this site

is adjacent to parks and even closer to a residential zone than the rejected sites.

52

165. There is no rational basis for this insistence by DSNY and the City on the

East 91st Street site while refusing to consider alternative sites on the basis of justifications that

apply equally to the East 91st Street site.

166. By their actions in seeking to construct a new marine waste transfer station

at the East 91st Street site, DSNY and the City, acting under color of law, have acted in a

discriminatory and totally irrational manner, thereby violating plaintiffs' rights to due process

and equal protection of the law as guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution, In granting the § 404 permit, the Corps was complicit with DSNY

and the City in violating plaintiffs' federal constitutional rights.

Seventh Claim for Relief (Violation of New York State Constitutional Rights)

167. Plaintiffs repeat and reallege, as if fully here set forth, the allegations

contained in paragraphs 1 through 100 and 164 and 165 of this complaint.

168. By their actions in seeking to construct a new marine waste transfer station

at the East 91st Street site, DSNY and the City have acted in a discriminatory and totally

irrational manner, thereby violating plaintiffs' rights to due process and equal protection of the

law as guaranteed by Article 1, §§ 6 and 11, of the New York State Constitution. In granting the

§ 404 permit, the Corps was complicit with DSNY and the City in violating plaintiffs' state

constitutional rights.

Eighth Claim for Relief (Breach of Contract and Trespass)

169. Plaintiff Asphalt Green, Inc. repeats and realleges, as if fully here set

forth, the allegations contained in paragraphs 1 through 100 of this complaint.

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170. The City is the fee owner of the Asphalt Green campus. Plaintiff Asphalt

Green, Inc. and the City have entered into a License Agreement dated December 1, 2011 (the

"Agreement").

171. Pursuant to. Paragraph 1 of the Agreement, the City has granted Asphalt

Green the right "to possess and to solely use, operate, control and manage the Property" until

December 31, 2031.

172. The "Property" is defined by reference to Exhibit A of the Agreement.

Exhibit A of the Agreement shows that the "Property" is comprised of two parcels directly north

and south, respectively, of the ramp to the defunct waste transfer station. These parcels

collectively contain all of the Asphalt Green facilities.

173. It is not physically possible to demolish the defunct waste transfer station

and ramp and construct a new waste transfer station and ramp without temporarily occupyhig

some portion or portions of the Property to which Asphalt Green is entitled possession and sole

use through December 31, 2031.

174. The City does not have the right to occupy any portion of the Property for

construction of a new marine waste transfer station.

175. Asphalt Green has made efforts to learn the means and methods by which

the defunct waste transfer station and existing ramp will be demolished and the neW transfer

station and ramp will be constructed. City representatives have stated that it will not be

necessary to occupy any portion of the Property to effectuate the project, but the City has not

provided details that substantiate these assertions or otherwise refute Asphalt Green's belief that

a portion of the Property will be occupied by the City or its contractors during demolition and

construction activities.

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176. Occupation of the Property by the City or its representatives for

demolition or other construction activities would constitute a breach of the Agreement.

177. Therefore, Asphalt Green is entitled to a judgment declaring that the City

may not occupy the Property in connection with demolition or construction activities, and

permanently enjoining the City from any occupation of the Property during the term of the

Agreement.

Ninth Claim for Relief (Private Nuisance)

178. Plaintiff Asphalt Green, Inc. repeats and realloges, as if fully here set

forth, the allegations contained in paragraphs 1 through 100 of this complaint.

179, The City is in the process of registering with the New York City

Comptroller a contract with a private contractor for the demolition of the defunct transfer station

and ramp and the construction of the new waste transfer station and ramp, and has advised

Asphalt Green that the contract will become effective during December 2012.

180. Asphalt Green has a responsibility to protect the safety of the thousands of

people. who use its facilities, particularly the children who use its facilities. It is therefore of

paramount importance that Asphalt Green be advised of and fully understand the ways in which

the City defendants' demolition and construction activities will affect its facilities.

381. Even if construction activities for the new marine Waste transfer station

and aceess ramp, including demolition, staging and cons ruction, do not physically occur on the

Asphalt Green campus and are confined to the footprint of the existing access ramp, these

construction activities will be noisy, odorous and dusty, and may cause excessive vibrations that

will damage the Asphalt Green buildings and facilities, including structural damage, particularly

55

to the Aqua Center and its swimming pool. The Aqua Center's electrical and hydraulic systems

are especially sensitive and susceptible to damage from excessive vibrations.

182, "lherefore, the City's construction activities will substantially interfere

with the use and enjoyment of Asphalt Green by its members and the public, .

183, This interference will diminish Asphalt Green's ability to provide free

services as required by the Agreement, because it is likely to diminish both Asphalt Green's

programs and its membership revenues. Therefore, these construction activities will

substantially interfere with the operations of Asphalt Green,

184. The City defendants' actions in causing a substantial interference with the

use, enjoyment and operations of Asphalt Green are intentional or at least negligent. The City

defendants know or should know that there is no way that construction activities will not

substantially interfere with the use, enjoyment and operations of Asphalt Green. Furthermore,

the City defendants have not considered or adequately investigated the potential effect of

construction activities on the Asphalt Green facilities and buildings.

185. The City defendants' actions in causing this substantial interference with

the use, enjoyment and operations of Asphalt Green are unreasonable.

186. Therefore, construction of the new marine waste transfer station and

access ramp at the East 91st Street site by the City defendants will constitute a private nuisance

as to plaintiff Asphalt Green,

Tenth Claim for Relief (Need for a Supplemental EIS under SEQRA to Address Flooding)

187, Plaintiffs repeat and reallege, as fully as if here set forth, the allegations

contained in paragraphs 1 through 100 of this complaint.

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188. The City's determination to build a new waste transfer station at the

project site on East 91st Street was finalized in 2006. In connection with that determination,

DSNY prepared a Pinal Environmental Impact Statement (the "FE1S") that purported to comply

with SEQRA by analyzing all of the significant potential environmental impacts of the facility.

189. The regulations implementing SEQRA provide that it is appropriate to

require "a supplemental EIS, limited to the specific significant adverse environmental impacts

not addressed or inadequately addressed in the EIS that arise from ... newly discovered

information; or a change in circumstances related to the project." 6 NYCRR § 617.9(a)(7)(i). In

the case of newly discovered information, the decision to require preparation of a supplemental

EIS must be based on the following criteria: "(a) the importance and relevance of the

information; and (b) the present state of the information in the EIS," 6 NYCRR

§ 617.9(a)(7)(ii).

190. Recent events show that the project site is prone to major flooding.

Specifically, it has flooded twice within the last 15 months, first during Hurricane Irene in

August 2011 and most recently during Hurricane Sandy in October 2012. In fact, as a result of

Hurricane Sandy, the City experienced a storm surge of 13 feet in height. However, the pier for

the proposed new waste transfer station is designed to be built at an elevation of only six inches

above the 100-year flood plain.

191. Extreme weather patterns appear to be on the rise. The increase in major

flooding events, and the high likelihood that major flooding events will occur more frequently in

the future, constitutes both newly discovered information and a change in circumstances related

to the project.

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192. Flood hazards resulting from the rise in extreme weather patterns are not

addressed in the FEIS.

193; Consideration of flood hazards resulting from the location of a new marine

waste transfer station, which will have a lifespan of 50 years, within a Zone A hurricane flood

zone are crucial, and directly relevant to the issues of whether or not this facility should be

located in this particular site, and if so, whether or not modifications should be- made to protect

the facility and surrounding areas from flooding caused by extreme weather patterns.

194. Because of the commitment of the City and DSNY to build the proposed

transfer station at the currently proposed location and in accordance with its current design, and

DSNY's apparent intention to imminently enter into a contract with its chosen construction

contractor, it would be futile to request the City and DSNY to prepare and consider a

supplemental EIS.

195. Nevertheless, the failure to re-consider the location and design of this

facility in view of the new appreciation of the risk of flooding is irrational, arbitrary and

capricious.

196. Under these circumstances, the City and DSNY should be directed to

prepare and consider a supplemental EIS befbre the commencement of construction of a new

solid waste transfer station at this site.

Eleventh Claim for Relief (Need fbr a Supplemental NEPA Review by the Corps te Address Flooding)

197. Plaintiffs repeat and reallege, as fully as if here set forth, the allegations

contained in paragraphs I through 100 and 190 through 193 of this complaint.

198. Even if the scope of the environmental review that was conducted by the

Corps pursuant to NEPA in connection with its issuance of the § 404 permit was adequate and

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appropriate when conducted, recent events show that the Corps' review, which resulted in its

adoption of a FONSJ, is inadequate.

199. The regulations for implementation of NEPA that have been promulgated

by the Council on Environmental Quality provide that federal agencies "shall prepare

supplements to either draft or final environmental . impact statements if ... there are significant

new circumstances orinformation relevant to environmental concerns and bearing on the

proposed action or its impacts." 40 CFR § 1502.9(c)(1),

200, The same policy considerations that underlie the foregoing requirement

for supplementation of an EIS also apply to environmental assessments that have led an agency

to adopt a FONST and conclude that an EIS is unnecessary. In other words, even if an agency

has completed an environmental assessment under NEPA and concluded that the proposed action

will not have significant environmental impacts, "significant new circumstances or information"

may require the agency to re-open its environmental assessment and re-consider a previously

adopted FONSI,

201. Here, recent events specifically, the flooding of the project site and

surrounding area that occurred with Hurricane Irene in August 2011 and Hurricane Sandy in

October 2012 (which brought a 13-foot storm surge) and the heightened awareness of the future

likelihood of relatively frequent severe storm activity and flooding resulting from climate change

— constitute "significant new circumstances or information" that compel a reassessment of the

potential environmental impacts of the proposed East 91st Street transfer station, which is to be

built in a Zone A hurricane flood zone on a platform that is only six inches above the elevation

of the 100-year flood plain.

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202. By reason of the foregoing, the § 404 permit should be anmilled, or at least

suspended, and the City should be restrained from performing work allowed by the permit,

pending completion by the Corps of a reassessment of the likely environmental impacts of the

permit associated with of flooding resulting from severe.storm activity.

WHEREFORE, plaintiffs request that this Court issue temporary and preliminary

injunctive relief restraining DSNY and the City of New York from performing any construction

work for which the § 404 perrn't is a necessary prerequisite, and a final judgment as follows:

(a) declaring that the Corps' issuance of the § 404 permit was in

violation of the Clean Water Act and its implementing regulations and mandatory

guidelines;

(h) declaring that the Corps' Environmental Assessment failed to

comply with the Corps' obligations under NEPA, or in the alternative, directing the

Corps to perform a supplemental Environmental Assessment that considers the risk of

flooding resulting from severe storm activity;

(c) declaring that DSNY, the City and the Corps have violated

plaintiffs' rights to equal protection and due process under the federal and New York

State constitutions;

(d) annulling the § 404 permit issued to DSNY by the Corps and

annulling the FONSI made by the Corps in connection with its issuance of the § 404

permit;

(c) permanently enjoining the Corps from issuing a § 404 permit to •

DSNY until and unless it complies in full with the obligations imposed upon it by the

Clean Water Act, the regulations and mandatory guidelines promulgated thereunder and

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KRAMER LEVIN NAFTALIS & FRANKEL LLP

Attorne or Plaintiffs

By:

ffre. L. Brat a

Karen L. Mintzer Kerri B. Folb

4

NEPA;

(e) permanently enjoining DSNY and the City of New York from

performing any construction work for which the § 404 permit is a necessary prerequisite;

requiring the City and DSNY to prepare and consider a

supplemental EIS that examines the impacts of flooding that results from severe storm

aotivity, and enjoining the construction of a new waste transfer station pending

completion of this supplemental EIS;

(g) declaring that the City, DSNY, DDC and their contractors may not

enter upon any portion of the "Property" in the possession of plaintiff Asphalt Green,

Inc., and enjoining the City, DSNY, DDC and their contractors from entering upon such •

"Property" or from otherwise engaging in construction activity that interferes with

Asphalt Green's activities and constitutes a nuisance- as to Asphalt Green;

(h) awarding plaintiffs their costs and expenses in this proceeding,

including their reasonable attorneys' fees in accordance with 28 § 1988; and

0) awarding plaintiffs such other and Rather relief as is just and

proper.

Dated: New York, NY November 19, 2012

1177 Avenue of the Americas

New York, NY 10036

(212) 715-9100

61.