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In the Matter of the Application of                     JOINT PETITION FOR FULL
                                                        PARTY STATUS AND

For permits pursuant to Articles 15, 19, 25 and
27 of the Environmental Conservation Law to
construct and operate a marine transfer station at
Bay 41st Street and Gravesend Bay in Brooklyn

Application No. 2-6106-00002/00022


       Pursuant to 6 NYCRR § 624.5(b), Raritan Baykeeper, Inc. (d/b/a NY/NJ Baykeeper),

Natural Resources Protective Association (―NRPA‖), Wake Up and Smell the Garbage (―Wake

Up‖), Urban Divers Estuary Conservation (―Urban Divers‖), the No Spray Coalition, and

Assembly Member William A. Colton, Esq. (―Colton‖) (collectively ―petitioners‖) submit this

joint petition for full party status and proposed issues for an adjudicatory hearing in the above-

referenced matter. The instant proceeding concerns the marine transfer station that the New

York City Department of Sanitation (―DSNY‖) proposes to construct and operate at Bay 41st

Street and Gravesend Bay in Brooklyn, New York (―SW Brooklyn MTS‖), and for which DSNY

seeks permits from the New York State Department of Environmental Conservation (the


       DSNY has applied to the Department for the following permits: (1) solid waste

management pursuant to the Environmental Conservation Law (―ECL‖) Article 27, Title 7, and 6

NYCRR Part 360; (2) tidal wetlands pursuant to ECL Article 25, and 6 NYCRR Part 61; (3) use

and protection of waters pursuant to ECL Article 15, Title 5, and 6 NYCRR Part 608; (4) air
state facility, pursuant to ECL Article 19, and 6 NYCRR Part 200 through 317; and (5) Section

401 Water Quality Certification, pursuant to 6 NYCRR 608. DSNY‘s permit applications raise

several issues that require revision of draft permits and warrant further scrutiny by the

Department in an adjudicatory hearing.

       Municipal discharges of the City of New York contribute greatly to the vast water

pollution problems in the New York/ New Jersey Harbor Estuary. The New York/New Jersey

Harbor Estuary was designated an "Estuary of National Significance" in 1988 by the US

Environmental Protection Agency, in response to a request by the two state Governors. The

New York/New Jersey Harbor Estuary includes the waters of New York Harbor and the tidally

influenced portions of all rivers and streams that empty into the Harbor, including Gravesend

Bay. Despite the fact that the proposed SW Brooklyn MTS originally was occupied by a

municipal incinerator (which closed in 1991 and was demolished), and therefore a plausible

location for an MTS, there are many significant issues about the proposed SW Brooklyn MTS

which have either been neglected, need further study, or have been inaccurately stated.

Petitioners submit that the facility cannot meet the standards for issuance of the permits that are

required from the Department, and that there are several issues that merit the scrutiny provided

by an adjudicatory hearing. Petitioners request that the Department require further studies and

information of the DSNY based on the potential adverse impacts on the public health, safety and

welfare of the vulnerable population in and around the site; the failure of DSNY‘s application to

meet the mandatory requirements of Part 360; DSNY‘s failure to show that the SW Brooklyn

MTS is necessary; DSNY‘s failure to prove that the SW Brooklyn MTS will not adversely

impact natural resources; and finally the Draft Permit conditions are insufficient to be protective

of public health, safety and welfare.

       Adjudication of these issues should result in the denial of some or all of the permits

DSNY seeks, a major modification to the proposed SW Brooklyn MTS, or the imposition of

significant permit conditions in addition to those in the Draft Permit.

       NY/NJ Baykeeper, NRPA, Wake Up, Urban Divers, No Spray Coalition and Colton are

organizations/people whose interests in protecting the commercial, recreational, ecological and

aesthetic qualities of the aquatic and marine resources of the New York/New Jersey Harbor

Estuary, including Gravesend Bay, as well as surrounding coastal and upland habitat, are

adversely affected by the creation and operation of a marine transfer station by the proposed

permit. All six organizations/people seeking party status will be represented by Joel R.

Kupferman, Esq., of the New York Environmental Law and Justice Project, 351 Broadway, New

York, NY 10013.


       The SW Brooklyn MTS is located at 1824 Shore Parkway, Bensonhurst, Brooklyn. The

entire site is a parcel of land located within Tax Block 6943, Lot 30 and comprises 6.4 acres of

the total 23.5 acre lot owned by DSNY at the edge of the waters of Gravesend Bay. The site

formerly contained the now demolished Southwest Brooklyn municipal incinerator. The site

contains the existing Southwest Brooklyn MTS occupies approximately 0.6 of the site‘s acreage

at the water‘s edge. The existing MTS is inactive but is being retained by DSNY for an

undisclosed use. The remainder of the DSNY lot contains two salt storage facilities, a garage

and parking area for several DSNY garbage trucks.

       DSNY operated the Southwest Brooklyn municipal incinerator (―the incinerator‖) on the

site from its construction in 1960 to its closure in late 1991. It is estimated that in full operation,

utilizing the four furnaces, the incinerator could have produced as much as 160 tons per day of

combined bottom ash and fly ash. During its operation, the incinerator‘s ash was transferred from

the incinerator building into the Southwest Marine Transfer Station, then carried by an open

conveyor belt and loaded onto open barges. Both processes were subject to the impact of

prevailing winds and weather conditions. The incinerator had four furnaces each capable of

burning nominally 250 tons per day of municipal waste. The incinerator burned a large portion

of the City‘s non-infectious medical waste as well as household solid waste and airport waste.

DSNY did not have proper permits to operate the incinerator during its operation. Whenever

residents complained about breathing the particulate matter and ash that accumulated on their

automobiles, boats, windows and terraces daily, DSNY assured the community that it was in

compliance and that the emissions from the incinerator were within acceptable levels, while it

knew, or should have known, that such statements and assurances were false.

        In 1992, DSNY applied to the Department of Environmental Conservation for a permit to

reactivate and operate the incinerator. Residents, some of whom had been exposed to the

incinerator for three decades, were angry upon learning of the possibility of repeated exposure

that had resulted in past and ongoing health problems, including premature death of loved ones.

There was exceptionally strong and active community opposition owing to the incinerator‘s

negative impacts. An Article 78 proceeding1 was commenced which resulted in the permanent

closing of the incinerator in 1994. In or about 2004 New York City introduced its twenty-year

Solid Waste Management Plan (SWMP‖).

        DSNY submitted applications for several permits to the DEC to construct and operate a

MTS at the site. In October 2004 DSNY issued a draft of the SWMP and a Draft Environmental

Impact Statement (―DEIS‖). In April of 2005 DSNY issued a Final Environmental Impact

Statement (―FEIS‖) concluding that there would be no adverse impacts from the construction or

1 Index No 30539/92 Holtzman v Lloyd, Commissioner of the NYC Dept of Sanitation.

operation of the MTS. In 2005 the incinerator was demolished. In July of 2006, the SWMP was

approved by Community Board #11, the NYC Planning Commission and the NYC City Council.

In October 2006, the SWMP was approved by the NY State DEC in Albany. During this time

DSNY and others held several informational community meetings and an environmental justice

meeting. On August 29, 2007, the DEC issued a Notice of Completed Application and issued a

temporary permit to DSNY. On November 27, 2007, DEC issued a Notice of Legislative

Hearing and Issues Conference.


       NY/NJ Baykeeper, NRPA, Wake Up, Urban Divers, No Spray Coalition and Colton each

request full party status on each of the issues presented below for adjudication. To be granted

full party status, a party must raise issues that are both substantive and significant. See 6NYCRR

624.4(c)(1)(iii). Each organization has substantial environmental and statutory interests in the

subject matter of this proceeding. Pursuant to 6 NYCRR § 624.5(b)(1)(ii)-(iii), included is a

summary of each organization‘s interests:

NY/NJ Baykeeper
               Petitioner NY/NJ Baykeeper, Inc. is a 501(3)(c) membership organization

incorporated under the name Raritan Baykeeper, Inc., and does business under the name NY/NJ

Baykeeper. Baykeeper is a membership based organization, with members all over the New

York/New Jersey Harbor Estuary region, including many members in Kings County (which

directly borders Gravesend Bay). Baykeeper‘s mission is to protect and preserve the

productivity and ecological integrity of the Hudson-Raritan Estuary and its tributaries and

watersheds including, among others, Lower New York Bay, Gravesend Bay, Jamaica Bay,

Sandy Hook Bay, Newark Bay and the Hudson Valley. Baykeeper‘s office is located at 52 W.

Front Street, Keyport, NJ 07735.

       Baykeeper‘s members include commercial and recreational fishermen, divers, swimmers,

and boaters dedicated to protecting the coastal habitat and fish that inhabit the waters of the East

Coast. Baykeeper‘s membership is concentrated near the coastal areas of the New York bight,

includes Brooklyn members. The Baykeeper‘s members‘ commercial and recreational activities

are directly affected by the quality of the estuary‘s waters. Their activities include fishing, bird

watching, out-door photography, boating, and hiking. Baykeeper and its members conduct

research and eco-tours, operate water-quality monitoring stations, and conduct beach cleanups in

the estuary.

       Andrew Willner is founder and Executive Director of Baykeeper, and is seeking party

status on behalf of the organization. Baykeeper is seeking party status based on its opposition to

the proposed SW Brooklyn MTS site, due to the environmental affects that will result from such


       Petitioner Natural Resources Protective Association was established in 1977. NRPA‘s

office address is P.O. Box 050328, Staten Island, NY 10305. NRPA is a conservation and

advocacy organization with a mission to protect, preserve and restore the marine environment.

Its members reside throughout the greater New York metropolitan area. They are concerned

with preserving habitat and advocating for clean water in the Lower Bay, Jamaica Bay,

Gravesend Bay and Raritan Bay. They have researched marine life in area borrow pits,

including the East Bank pits. NRPA works with and provides technical assistance to dozens of

groups throughout the New York Harbor Estuary on educational programs, waterfront access

issues, shoreline clean ups, recreational fishing and dredging related issues.

Wake Up
       Wake Up and Smell the Garbage is a loose association of individuals who live, raise

children, work, and own businesses near the proposed SW Brooklyn MTS site. It is a group that

formed for the sole purpose of opposing the proposed SW Brooklyn MTS. Wake Up is not an

incorporated or registered organization. It is not a part of or affiliated with any other organized

group or any political figures except to the extent that it combines forces with other groups to

work together to fight the construction of the MTS. The majority of the group's members live

within the five building cluster comprising Waterview Towers, Oceanview Towers, and Contello

II - a sizable complex down-wind of the site.

       Petitioner William Hershkowitz resides at 2630 Cropsey Avenue and is a founding

member of Wake Up. Petitioner Vicki Grubman resides at 2630 Cropsey Avenue and is a

founding member of Wake Up. They both utilize the recreational facilities in the area including

the parks and waterfront.

       Urban Divers Estuary Conservancy

       The Urban Divers Estuary Conservancy is a not for profit environmental and cultural

organization that has and continues to provide its resource and services to New York Harbor for

a decade. Through its robust environmental education, and community environmental

stewardship program, it provides tools and resources that assist community members in

becoming better informed, while increasing their environmental literacy.

       Its programs help foster new community stewards and stakeholders for the natural

resources of the urban estuary and watershed. Through its conservation support and scientific

diving program, Urban Divers has facilitated local universities, natural resource protection and

conservation agencies, including environmental law enforcement with over a dozen scientific

research, and underwater environmental investigations. Over the course of 10 years Urban

Divers has conducted over 72 dive missions throughout NY Harbor, The Hudson River and most

of its tributaries along NYC, including the Newtown Creek, Harlem River, Coney Island Creek,

Gowanus Canal, and Lower Bay to name a few.

          Urban Divers operates both a center downstream along the Brooklyn Harbor estuary,

the South Brooklyn Harbor Marine Field Station & EnvironMedia Mobile, and its upstream


          Our program brings thousands of local residents to the waterfront each year to investigate

the environmental challenges, explore existing natural resources, conduct clean-ups and

demonstrate and advocate for a pathway for environmental restoration and mitigation for

environmental challenges that impact the community.

        Urban Divers operates a fleet of a dozen human powered boats, three outboard boat and

its motorized conservation vessel "CleanWater NYC". Urban Divers can fully gear six divers

and launch them to any location and waterway throughout the urban estuary.

        Urban Divers is comprised of 150 plus members, both divers and non-divers who are

members of the communities it serves. Its members are teachers, scientists, artists, municipal

workers, environmental activists, nature lovers, water men and women.

        Urban Divers has and continues to provide annual educational eco-cruises, clean-up and

citizen monitoring and environmental investigation opportunities at Coney Island Creek and

Gravesend Bay for the past five years.

        Ludger K. Balan, is the appointed Executive Environmental Program Director and has

lead and served the organization and its mission in that position since 1998; and has conducted

environmental and exploratory site visits and dives in the area in proximity to the proposed MTS


No Spray Coalition
        No Spray Coalition is an all-volunteer not-for-profit organization that formed in 1999 to

oppose New York City‘s mass-spraying of pesticides including Malathion and Pyrethroids, and

to examine the effects of pesticides on the environment, wildlife, and human residents of New

York City. The Coalition works alongside other environmental justice organizations and

individuals, and supports their work. As a result, the No Spray Coalition has become expert in

the dangers of pesticides and in presenting alternative and non-toxic means for dealing with

mosquitoes, rodents and other critters considered to be pests, by looking at the environment

holistically; and protecting workers‘ health and safety.

        In the year 2000, the No Spray Coalition was the lead plaintiff in a lawsuit filed in

Federal Court against New York City‘s misuse of pesticides over or near navigable water bodies.

In 2007, the City agreed to a settlement with the No Spray Coalition that included a number of

provisions for increased protections of the environment, particularly bodies of water, that have

been affected by the use and misuse of pesticides.

       In the settlement, New York City admitted that the pesticides it has sprayed may indeed

be dangerous to human health as well as to the natural environment, and that contrary to the

City‘s prior statements, pesticides may indeed remain in the environment beyond their intended

purpose, cause adverse health effects, kill mosquitoes‘ natural predators, increase mosquito

resistance to the sprays, and are not presently approved for direct application to waterways.

       Mitchel Cohen resides at 2652 Cropsey Avenue, Brooklyn, NY, which is in close

proximity to the proposed SW Brooklyn MTS site. Mitchel Cohen is a director and the

Coordinator of No Spray Coalition. No Spray Coalition‘s address is PO Box 739 Peck Slip

Station, New York, NY 10272-0739.

Assembly Member William A. Colton, Esq.
       Member of the New York Assembly from the 47thAssembly District of Kings County,

and since first elected in 1996, serves as the elected representative of many residents surrounding

the site of the proposed Southwest Brooklyn Marine Transfer Station. Since 2000, has served as

the Chair of the Assembly Legislative Commission on Solid Waste Management. In such

capacity, Mr. Colton has toured numerous solid waste facilities throughout the state and become

familiar with the state‘s solid waste policies and practices, as well as the impacts various solid

waste facilities have upon their surrounding communities. Mr. Colton has become familiar with

Environmental Justice policies, practices and concerns, and how they impact the siting of such

facilities. Familiar with the geography and history of this site and the community surrounding it,

Mr. Colton understands the serious environmental concerns raised by the hazardous substances

spewed forth into the neighborhood from the operation by the NYC Department of Sanitation of

the Southwest Brooklyn Incinerator, which operated without a permit on this very site, until its

closure in 1991. Mr. Colton has been closely involved with the history and uses of the site now

proposed for the construction of a waste transfer station and upon which from 1957 to 1991 the

Department of Sanitation operated the Southwest Brooklyn Incinerator, without ever obtaining a

permit for its use as such. Further, in 1992 when the Department of Sanitation sought to re-open

and expand the Southwest Brooklyn Incinerator, Mr. Colton served as the pro bono attorney for

community leaders in an Article 78 proceeding brought in NY State Supreme Court in New York

County under Index# 30539/92 (Colton Exhibit #3) challenging that application. That Article 78

petition successfully challenged the NYC Department of Sanitation‘s attempt to avoid an

Environmental Impact Study as part of its application process by its filing of a Negative

Declaration, claiming there were no significant adverse impacts from such permit application.

The legal proceeding ended with the Court issuing an order rescinding the Negative Declaration

on consent and with the Department of Sanitation ultimately withdrawing its application to re-

open the incinerator in 1997. Mr. Colton‘s role in this capacity made him familiar with the

documents and studies showing the degree of contamination the former incinerator imposed

upon this site, thereby rendering this site unsuitable for the construction and dredging required

for the proposed transfer station.


Summary of Issues
       As explained in detail below, the petitions request that the permit be denied and/or the

Department require further studies and information of the DSNY based on the potential adverse

impacts on the public health, safety and welfare of the vulnerable population in and around the

site (Issue 1); the failure of DSNY‘s application to meet the mandatory requirements of Part 360

(Issue 2); DSNY‘s failure to show that the MTS is necessary (Issue 3); DSNY‘s failure to prove

that the MTS will not adversely impact natural resources (Issue 4); and finally the Draft Permit

conditions are insufficient to be protective of public health, safety and welfare (Issue 5).

        Each of the specific issues petitioners raise below is a substantive and significant issue

for which an adjudicatory hearing is required.2 An issue is substantive if there is sufficient

doubt about the applicant‘s ability to meet applicable statutory or regulatory criteria such that a

reasonable person would require further inquiry3; however, while an intervenor must make an

offer of proof, ―[a]t the issues conference stage, an intervenor need not present proof of its

allegations sufficient to prevail on the merits.‖4 An issue is significant ―if it has the potential to

result in the denial of a permit, a major modification to the proposed project, or the imposition of

significant permit conditions in addition to those proposed in the draft permit.‖5

Issues and Offers of Proof
Issue 1:     The Department Cannot Conclude that the MTS is Compatible With,
and Will Have No Adverse Impact on the Public Health, Safety and Welfare of
Residents in Gravesend Bay.

        In determining whether to grant the requested permits, the Department is required to

consider whether the proposed activity for which permits are sought will pose significant adverse

environmental impacts or endanger public health, safety and welfare. For example, a Part 360

permit must ―assure…to the extent practicable, that the permitted activity will pose no significant

2 See 6 NYCRR § 624.4(c).
3 See 6 NYCRR § 624.4(c)(2).
4 In the Matter of the Applications of Hydra-Co. Generations Inc. and Babcock & Wilcox Solvay Power Inc., 1988
WL 1095749, * 2 (N.Y. Dept. Env. Conserv.) (April 1, 1988).
5 See 6 NYCRR § 624.4(c)(3).

impact on public health, safety or welfare…‖ 6 NYCRR § 360-1.11(a). Before issuing a permit

to excavate or place fill in navigable waters, the Department also must determine that ―the

proposal will not endanger the health, safety or welfare of the people of the State of New

York…‖ Id. at § 608.8(b). Similarly, before issuing a tidal wetlands permit, the Department

must determine that the proposed regulated activity is ―compatible with the public health and

welfare.‖ Id. at § 661.9(b)(ii). In this instance, there are several reasons why the Department

cannot conclude that the proposed activity is compatible with public health, safety and welfare.

A. The Site is Incompatible With a Waste Transfer Site
         Upon close examination of the neighborhood surrounding the proposed SW Brooklyn

MTS, it is clear that the public health, safety and welfare of residents in the area will be

compromised by placement of the facility. The neighborhood is a residential and recreational

area which contains, among other things, homes of working class residents such as one and two

family homes, high rise residential apartment buildings, NYC Public Housing buildings,

approximately ten parks, an amusement park for very small children abutting the entrance to the

MTS6 (Exhibit ―A‖), two schools for developmentally disabled children, a home for handicapped

children, a junior high school, a community residential opportunities facility, a religious school,

three nursing homes, two residences for senior citizens, and a ―Family Head Start‖ facility.

         Bensonhurst Park abuts the primary intersections that DSNY studied in connection with

its truck routes. Dreier Offerman Park, is only seven hundred feet from the proposed facility. In

the spring of 2007, Mayor Michael Bloomberg announced a $40 million plan to restore and

refurbish this 77 acre site into a regional park. Plans for the park include a nature trail,

6 This park is referred to in the DSNY documents as ―Nellie Bly‖an amusement park containing thrill rides for
toddlers and small children, which has been in existence since mid 1960‘s and is operating with new ownership
under the name Adventurer‘s. It is approximately 500 feet from the site, directly bordering on the only access street
to and from the MTS.

educational center, picnic areas and a boat launch for kayaks, canoes and rowboats. The park is

bordered by Gravesend Bay, Bay 44th Street and the Shore Parkway (Belt Parkway) service road.

It is one of the most important migratory bird routes on the East Coast. Well over 150 species of

birds, including many rarities, are regularly seen in the park. (Exhibit ―H‖ ).

       The neighborhood also has many commercial businesses such as supermarket, and major

chain stores and ―mom & pop‖ businesses.

       Although the site suggested for the SW Brooklyn MTS is in an area along Gravesend Bay

that is zoned as ―Industrial,‖ other than Bayside Fuel, there is no MTS or major industrial

facilities there. However, some businesses are located along Gravesend Bay, such as, Caesar‘s

Bay Shopping Center (which is home to stores of varying sizes, restaurants and two banks),

furniture store, a health club and restaurant, a motel, a school bus depot, automobile dealership,

Verizon facility and parking lot, and marinas and boat clubs. These businesses should not be

considered ―industrial‖ in the intended meaning of the word.

       At the westernmost part of Bay Parkway is the entrance to NYC Greenway System that

affords people and cyclists miles of unobstructed pathway along Gravesend Bay. Some watch

the Harbor Seals sun themselves on the rocks near Caesar‘s Bay Shopping Center.

       The neighborhood includes Coney Island with its beaches, amusements, aquarium and

KeySpan Park.

       DSNY has justified using the site because it already owns the land, and would not have

proposed this site if there were not already a transfer station there, but these justifications should

not factor into the Department‘s permitting decision.

Offer of Proof
       (1)      Photographs of the surrounding neighborhood of Bay 41st Street, including Nellie

Bly Amusement Park, and a nature trail near the site, are annexed hereto as Exhibit ―A‖. They

show the public‘s access to parklands, emphasizing the inappropriateness of converting the site

to a waste transfer station.

Prior Contamination
        The site proposed for the construction of the MTS is the same on which the DSNY

operated an unpermitted incinerator, the Southwest Brooklyn Incinerator, from 1957-1991. As

the result of a long practice of unsafe and illegal operation and improper handling and disposal of

incinerator waste, including the wholesale dumping of fly ash into the bay, the site was heavily

contaminated by a host of toxic substances, including dioxins, furans, and heavy metals, such as

lead and arsenic. (Exhibit ―I‖).

        1.      Dioxins are generated as a combustion by-product of incineration. Toxic in the

                parts per billion, dioxins are classified by the International Agency for Research

                on Cancer as ―known human carcinogens‖ (IARC, 1997). Dioxins have serious

                adverse neurodevelopmental, endocrine, cardiovascular and reproductive effects.

                Furans, polychlorinated biphenyls (PCBs), pesticides, polycyclic aromatic

                hydrocarbons, and heavy metals are also likely present on the proposed site at

                elevated levels. These substances are carcinogenic, neurotoxic and contribute to

                increased risk of numerous diseases. Workers at DSNY incinerators have

                suffered from various dioxin related illnesses. (Exhibit ―M‖). Special Condition

                No. 36

        While in the absence of health surveillance, incidence of cancers and other illnesses

linked to residing near the site cannot be quantified, it is reasonable to assume that decades of

exposures have led to serious health impacts in the community. New York State cancer registry

data reveal the levels of three cancers considered to have environmental risk factors to be among

the highest in Brooklyn.7 People residing in zip code 11214 have the highest rate of lung and

bronchus cancers, the second highest rate of breast cancer, and the third highest rate of colorectal

cancer for the years 1999-2003.8 Colton Exhibits # 14 and #15, respectively.

        The proposed demolition, construction, and dredging at the site will serve to re-suspend

these hazards, making them available for human exposure at potentially dangerous levels, and

will compound risks for long-term residents. Sensitive population - children, the elderly, the

developmentally delayed, are susceptible to harm from exposures even to low levels of these

substances. A single exposure on a critical day of fetal development can be enough to cause

reduction in IQ. Children are at risk for developing learning disabilities and behavior problems,

and to cancers and other disease. Elderly people would be subject to increased risk for cancers

and other diseases.

        The conditions set out in the draft permit, calling for unspecified sampling and analysis,

are lacking in any detail and fall far short of the extensive testing and evaluation of the existing

levels of contamination needed to ensure public health and safety. Without a scientifically sound

comprehensive sampling plan, there will not be enough information on the locations and levels

of the hazards to develop demolition plans that do not create an unacceptable risk for the

community and the workers on the job.

        In addition, dredging activities will produce increased levels of toxic substances in fish

and other marine life, which are caught and consumed by nearby residents and others. Dioxins

and other persistent organic pollutants remain in the environment and bioaccumulate in the flesh

of fish. Exposures from eating contaminated fish constitute a substantial environmental justice

7 New York State Cancer Registry.
8 Id.

impact in the case of low-income residents, immigrants and people of color who may consume

these fish routinely.

       Given the long history of unrestricted toxic release at this site, all testing, demolition and

construction plans should undergo a full process of public review before any permits are issued.

Offer of Proof

       (1)     Dr. David O. Carpenter, M.D., Director of the Institute for Health and the

Environment and Professor of Environmental Health Sciences at the University at Albany, will

testify about prior contamination at the proposed SW Brooklyn MTS. Dr. Carpenter‘s statement

and curriculum vitae are attached hereto. Dr. Carpenter will testify that DSNY has inadequately

tested sediments, soils, air and dust at the site for contaminants left over from operation of the

incinerator, resulting in the lack of knowledge of existing levels of contamination to assess the

degree of hazard to human exposure. There is much documentation showing that the prior

incinerator caused excessive release of dioxins, furans and toxic metals (arsenic, cadmium, lead

and nickel), and that there were high concentrations of toxic metals in the fly ash. It is also

likely that there are elevations of furans, other chlorinated contaminants such as polychlorinated

biphenyls (PCBs) and persistent pesticides, polyaromatic hydrocarbons (PAHs) and toxic metals

such as lead, mercury, arsenic and cadmium. This is just one reason among many that Dr.

Carpernter will testify about which suggest the DEC should deny DSNY‘s application to operate

an MTS at Bay 41st Street in Brooklyn.

       (2)     Peter L. deFur, Ph.D., an environmental consultant and a part time faculty

member at Virginia Commonwealth University, will testify about the state of the proposed SW

Brooklyn MTS site, due to prior contamination. Dr. deFur‘s statement and curriculum vitae is

attached hereto. The SW Brooklyn MTS facility poses risks to the local flora and fauna from

several different sources. The historical contamination has obviously left an area of marine

sediment that is not habitable by benthic organisms, according to the results submitted by Weis

(2007). Exhibit ―J‖. Because this site was the location of an older and unregulated incinerator,

the emissions are surely to have been deposited over a larger area than the one sampled by Weis

in the immediate vicinity of the pier on the site. Additionally, the soils on the upland portion of

the site are surely to be contaminated from spills, leaks and the like. According to a story in

Courier-Life Publications, attached hereto as Exhibit ―B‖, the site was abandon with leaking

barrels and trucks still filled with waste. The story goes on to describe a cesspool basin and gas

canisters left on the site of the former facility. All of these reports, plus the information on the

marine sediments provides the evidence needed to treat this site as a contaminated waste site.

This site should be investigated as a contaminated site, with all the precautions and procedures

used for CERCLA or RCRA contaminated site investigations.

       The 73 acre park to the south of the site along Coney Island Creek, Dreier-Offerman

Park, is officially planned for recreational development. Recreational uses will result in

increased use of the site by children, the elderly and citizens with chronic health problems. The

increased use will increase the exposures of recreational users to the emissions and discharges

from the waste transfer facility.

       This site clearly has a history of releasing contaminants into the environment. The Article

78 petition of November 1992 in opposition to refurbishing and expanding the incinerator

describes waste handling procedures and ash management. The procedures and practices did not

comply with safe practices and would have left a residue of contaminated soil. Contaminated soil

from this site will be a source of chemical contamination into the waters of Gravesend Bay via

surface waters running off the site and via waters that percolate down and then flow into the

marine environment and by soil otherwise deposited into the water.

       The Article 78 petition of Holtzman in 1992 to prevent expansion of the site as a waste

incinerator indicates that the incinerator had emissions or releases of a range of toxic chemicals,

including lead, mercury, cadmium, nickel, PAH‘s, PCB‘s, dioxins hydrogen fluoride, aldehydes,

chromium and other chemicals. This list of chemicals is typical of incinerator ash, in my

experience with various types of waste incinerators. Ash may actually be derived from two

sources in the incinerator- from the bottom of the furnace or from the escaping materials,

particularly in older incinerators, of which this is one.

       The site also holds underground storage tanks that are apparently leaking into the

groundwater, which will flow into the marine environment. See DEIS 2004, figure 5.10-1.

       (3)     William A. Colton, Esq., Member of the New York Assembly from the

47thAssembly District of Kings County, will testify about his personal observations and

conversations with residents about the conditions of the site during and after the incinerator

operated there. Mr. Colton‘s affirmation and accompanying exhibits are attached hereto.

Throughout the 1980‘s residents complained about the presence of the ash which appeared

throughout the neighborhood on the windowsills of houses and on parked car windshields in the

residential area of the Bay Streets which adjoin the site of the then incinerator. (See affidavit of

Maria Francavilla (Colton Exhibit #1b).

       Ash disposal and handling practices employed by the Department of Sanitation consisted

of literally dumping the commingled fly ash and the bottom ash from the incinerator onto an

uncovered conveyor belt running alongside the former incinerator to the water edge. The outside

conveyor belt then dumped the ash onto a barge left positioned at the water edge. The ash was

never covered or sealed and therefore it was open to be blown by the wind. On numerous

occasions the choppy water would cause the barge to be out of position and the conveyor belt

would continue to dump this ash directly into the water and its bottom, until someone noticed

that the barge was not properly positioned. The persistent exposure of the water bottom and the

land at this site to this toxic ash provide a strong basis to believe that the sediment at the water

bottom, as well as the land at this site is heavily contaminated. (See the written testimony of

Samuel P. Popkoff at a Legislative Hearing, dated February 1993, regarding the toxic nature of

the operation of the former Southwest Brooklyn Incinerator, (Colton Exhibit #2).

       Numerous visits to the site demonstrated improper and poor maintenance, including

continually leaving a large pile of corrosive road salt uncovered on this very site, leaving

unsealed containers of chemicals on the premises exposed to the elements, among other

examples. Such practices were observed as recently as December 2006. The persistent exposure

of the land and water bottom as of result of such poor practices provides a strong reason to

believe that the land and water bottom at this site is contaminated. Photographs of the site are

annexed hereto as Exhibit ―C‖.

       The former incinerator operated with emissions above the levels allowed even under the

1995 Federal regulations. (See a copy of the Verified Petition in the Article 78 Proceeding under

Index # 30539/92, (Colton Exhibit #3).

       There were Orders of Consent entered into between the New York State Department of

Environmental Conservation and the New York City Department of Sanitation as Respondent in

regard to its operation of the Southwest Brooklyn Incinerator. (See a copy of Sixth Modified

Order on Consent Dec File # 2-0529, dated 5/13/81, a (Colton Exhibit #6) which states

‖[r]espondent has failed to comply with the terms of the fifth modified order on consent dated

Jan 29, 2979 in that it has been unable to control particulate emissions as required by 6 NYCRR

Parts 201, 211 and 222.‖) (Also, see a copy of Seventh Modified Order on Consent, dated

10/29/82, Colton Exhibit #7,) which states ―[r]espondent has failed to comply with the terms of

the sixth modified order on consent dated May 13, 1981 in that if has been unable to control

particulate emissions as required by 6 NYCRR Parts 201, 211, and 222.‖) (See Order on

Consent R2-0455-86-07, dated July 27 1987, which states ―[r]espondent has violated the

following at its Southwest Brooklyn Municipal Incinerator (the ―Incinerator‖) (a) Section

222.3(a) in that the Respondent operated the Incinerator in such a manner that it emitted smoke

the shade or appearance of which was equal to or greater than 20 percent opacity for a period of

three or more minutes during a continuous sixty (60) minute period. (b) Section 22.3(c) in that

Respondent operated the Incinerator in such a manner that it emitted smoke the shade or

appearance of which was equal to or greater than 40 percent opacity for any time period.‖

2)     Flooding Concerns
       Proper planning of the site location is crucial for a number of reasons, including the

potential for flooding. The Gravesend Bay area has a history of severe flooding that is a cause

for concern regarding the placement of an MTS along its waterfront. During the extratropical

storm of February 5, 1920, Coney Island Creek overran its banks. In the extratropical storm of

November 17, 1935, a pier in Bath Beach was destroyed and buildings lost roofs. In the

hurricane of September 21, 1938, a bungalow colony on Gravesend Bay was destroyed when a

bulkhead burst. In the extratropical storm of October 14-16, 1955, the Belt Parkway, between

Fort Hamilton Parkway and Cropsey Avenue was flooded by tides. Regarding the extratropical

storm of March 6-8, 1962, a newly completed storm sewer from Coney Island to Gravesend Bay

overflowed and pushed the water right back into Coney Island. With sea level rises and

increases in rampant storms9 in the region, petitioners are wary of the potential flooding

impacts10 to the proposed facility, which would cause more pollution problems in Gravesend

Bay and may ultimately shut the site down.

Offer of Proof
         (1)      Mr. Colton will testify about flooding concerns surrounding placement of the SW

Brooklyn MTS at Bay 41st Street.

         (2)      Map of Coastal Flood Zone attached hereto as Exhibit ―D‖.

         A.       The Proposed Facility Will Have Significant Adverse Noise Impacts

         The SW Brooklyn MTS will also create significant adverse noise impacts to the

neighborhood and, therefore, is incompatible with public health, safety and welfare.

         Offer of Proof

         The FEIS proposed thresholds are insufficient to protect public health from numerous

adverse noise impacts. Sensitive receptors including schools, playgrounds, nursing homes,

housing complexes for the elderly stand in the immediate vicinity of the proposed MTS.

         Noise is detrimental to human health in a number of ways, causing hearing impairment,

sleep disturbance, cardiovascular effects, psychophysiolgical effects, reduced school or job

performance, and stress. Children are especially vulnerable to hearing loss from noise

exposures. Studies have shown higher stress hormone levels and higher mean blood pressure

9 ―[F]lood heights for New York City will increase, resulting from the higher sea level. This means that weaker
storms will be able to produce the equivalent of the ‗100-year storm‘ of today. In addition, there will be an increase
in the number of ‗100-year storms‘ relative to the year 2000." A NASA analysis of climate change its effects on
10 "Flood hazard conditions are dynamic, and many NFIP [National Flood Insurance Program] maps may not
reflect recent development and/or natural changes in the environment." Federal Emergency Management Agency's
discussion of floodplain remapping post-Hurricane Katrina.

readings in children exposed to high levels of community noise.11

        Although the World Health Organization (―WHO‖) and the U.S. Environmental

Protection Agency consider a daily average sound exposure equivalent to 70 dBA to be safe for

the ear, ―ear-safe‖ sound levels have been found to cause non-auditory health problems if they

routinely interfere with sleep and relaxation, disturb communication or distract from reading,

writing and other mental tasks requiring a high degree of attention and concentration.12

        Even in the unlikely event that all operations of the facility did not exceed the FEIS

proposed threshold for daytime operation of 62 dBA, that would not be sufficiently protective of

the community, especially in the case of schoolchildren.

        Noise levels must be aggregates of all noise generated by MTS (all operation-related

sources, including but not limited to facility operation and constant presence of heavy trucks)

and current levels of background noise. Noise threshold levels for daytime and nighttime,

respectively, must be set to protect against adverse effects that occur at much lower levels than

the FEIS proposed threshold levels. All operation-related activities must comply with the City‘s

2007 Noise Code.

        B.       The Proposed Facility Will Have Significant Adverse Air Pollution Impacts

                 1)       A Source of Air Pollution

        This permit has been filed in compliance with Article 19 of the Environmental

Conservation Law (ECL), which indicates that the waste transfer station is operating pursuant to

an Air State Facility Permit. The authorized activities under this permit relate to local trucking

11 Babisch W. 2000. Traffic noise and cardiovascular disease: epidemiological review and synthesis. Noise Health
2(8):9-32; and Passchier-Vermeer W. 2000. Noise and Health of Children. TNO report PG/VGZ/2000.042.
Leiden:Netherlands Organization for Applied Scientific Research (TNO).
12 WHO. 2001. Occupational and Community Noise. Fact Sheet No 258. Geneva: World Health Organization.
Available: [accessed 10 January 2003].

without storage and to refuse systems13. A special condition within this permit is compliance

with the Recycling and Salvage clause under 6 NYCRR § 201-1.7. This clause states that

―where practical, any person who owns or operates an air contamination source shall recycle or

salvage air contaminants collected in an air cleaning device according to the requirements of 6

NYCRR.‖14 In order to fulfill this requirement the transfer station should be required to install

emissions controls on all of its garbage trucks to collect air contaminants and then further

recycle/salvage the air contaminants that are collected. These emissions controls not only

provide environmental benefits, but also benefit human health. As of 2005, ―New York leads the

nation in premature deaths and disease related to diesel exhaust‖15. It is imperative that the city

do all it can to protect the health of its residents, therefore with the creation of garbage truck

traffic through previously unaffected communities, the City ought to provide protection against

air pollution through the use of such emissions controls. This is not an impractical request being

that emissions controls have already been installed on 68 of the garbage trucks operating in the

South Bronx16. Those trucks have been equipped with diesel oxidation catalysts, which ―when

combined with the ultralow-sulfur fuel that all the department‘s trucks now use…will reduce the

most harmful part of diesel exhaust by a third.‖17 Further, other federal programs exist that can

decrease total diesel emissions in the area, which were ignored by DSNY. Given the overall

objective of this new waste disposal system through water transport is to reduce air pollution, a

further safeguard against the release of air contaminants from truck transportation ought to be a

mandated requirement.

13 Final Joint Application for Permit, page 17.
14 Id. at page 21.
15 New York Times Article, ―Garbage Trucks to Get Filters,‖ Anthony DePalma, February 25, 2005, see report
―diesel and Health in America: The Lingering Threat‖ Health in
America.pdf .
16 Id.
17 Id.

      On May 11, 2005, Mayor Michael Bloomberg signed Local Law 39 for the year 2005. The

law amended the Administrative Code of the City of New York in relation to the use of ultra low

sulfur diesel fuel (―ULSDF‖) and best available retrofit technology (―BART‖) by city motor

vehicles. The law requires that diesel fuel-powered motor vehicles owned or operated by city

agencies be powered by ULSDF. The law further requires that a percentage, increasing yearly to

100 percent, of diesel fuel-powered motor vehicles with a weight of more than 8,500 pounds that

are owned or operated by city agencies utilize BART or be equipped with an engine certified to

the 2007 EPA standard for reducing the emission of pollutants18. The Department, at a

minimum, should commit to the use of hybrid refuse trucks to minimize any emissions from

trucks entering the proposed facility19 and avail the benefits of the Congestion Mitigation and

Air Quality (CMAQ) Improvement Program.20

      Additionally, Under NYS' Environmental Conservation Law, heavy duty trucks and buses

may not idle for more than five consecutive minutes. See 6 NYCRR § 217-3.2. This should be

strictly enforced should the proposed SW Brooklyn MTS site be approved.

             2)     Adverse Health Affects

          The draft permit conditions are insufficient to protect public health, safety and welfare.

The proposed MTS will lead to increases in air pollution, including particulate matter (PM),

diesel exhaust and other priority pollutants which pose a serious health threat to residents in the

area, especially vulnerable populations.

          While numerous studies document the adverse health effects of PM on humans, the

FEIS grossly understates the degree of health risk in part through restricting most of its

18     The Rules are authorized by section 1043 of the Charter of the City of New York and section 24-
163.4 of the Administrative Code of the City of New York.
19 See Hybrid Refuse Truck Feasibility Study:

assessment predominantly to cancer impacts, and then defining those impacts by an over-reliance

on a small set of rodent studies. However, the air pollution has the potential to adversely affect

many body systems—including respiratory, cardiovascular, immune, reproductive and nervous

systems. Effects can be serious and chronic and include fatalities. With respect to respiratory and

cardiovascular impacts, PM has been found to be a contributing factor to premature deaths from

heart and/or lung diseases, based on studies of over 500,000 people (Pope, et al. 1995, 2002) and

independently verified by a reanalysis requested by industry and the US Congress (Krewski et

al., 2001). Kings County, in which the proposed facility will be sited, ranks second highest of all

NY State counties in the level of air pollution and ranks sixth highest of all counties in the US.

         Similarly, the FEIS fails to accurately assess the health impacts to the surrounding

community resulting from a key component of air pollution--diesel exhaust from trucks

transporting solid waste to the MTS. Diesel exhaust is a complex mixture of air pollutants made

up of Diesel Particulate Matter (DPM) or soot, a variety of harmful gases such as NO2, and over

40 other known cancer-causing substances.

          In 1998, the state of California identified DPM as a toxic air contaminant based on its

potential to cause cancer, premature death, and other health problems. By 2003, the City of New

York, acknowledging that ―diesel emissions, due in large part to their high concentrations of

particulate matter, are associated with severe and multiple health risks to the citizens of New

York City‖ enacted Local Law #77. Key international and national health agencies have

determined that diesels exhaust has the potential to contribute to cancer and other health effects.

These agencies include the National Institute Occupational Safety and Health, 1988), the

International Agency for Research on Cancer (1989), the World Health Organization (1996), the

National Toxicology Program (2000) and the US EPA (2002).21 The majority of DPM is

composed of very fine particulates (less than 1 micrometer in diameter) that are inhaled deep into

the lung, where chemicals that typically coat DPM are dissolved into the lung and pass via the

blood stream into the body. Many of these chemicals, including benzene and polycyclic aromatic

hydrocarbons (PAHs) are classified as probable human carcinogens and are known to cause

damage to DNA.

          An overwhelming body of scientific evidence has linked DPM exposure has to

premature deaths, lung cancer, decreased lung function in children, chronic bronchitis, increased

respiratory and cardiovascular hospitalizations, aggravated asthma, increase respiratory

symptoms, neurological effects in children and serious prenatal impacts, including premature

births (CARB). Nonetheless, in the FEIS, the DSNY makes the following unsupported assertion:

‘For purposes of public health assessment, application of typical safety factors to these data from

laboratory rodents suggests that current ambient concentrations of diesel engine exhaust in New

York State are not harmful.‘ FEIS 33-7. This misleading statement is contradicted directly by

New York State Department of Health statistics, which show that the state leads the country in

diesel-related fatalities and by notice from the Attorney General‘s Office. Exhibit ―K‖.

          US EPA confirms that the preponderance of evidence indicates that diesel exhaust,

even at anticipated levels, poses a potential lung cancer hazard (US EPA (2003a)). See FEIS at

33-8. Indeed, when one takes into account that, according to the New York State Cancer

Registry, zip code 11214, has the highest incidence of lung and bronchus cancers in Brooklyn for

the years 1999-2003 (the latest period for which statistics are available), it is reasonable to

assume that current levels in the Gravesend area are already hazardous. It is unacceptable for this

community to be burdened with additional chronic levels of diesel exhaust.

21 CEPA ARB July 2005 Summary of Adverse Impacts diesel Particulate Matter.

         The FEIS further states: ‗Nonetheless, current and proposed regulations that will

substantially reduce the sulfur content of diesel fuel and will substantially control emission of

several pollutant from diesel equipment and vehicles are welcome improvements that will

provide additional margin of safety and help to reduce regional haze.‘ See FEIS at 33-7. The

draft permit specifies no such mitigating measures and should be denied.

         The threat to health from increased pollution is multiplied with respect to members of

vulnerable populations, especially the children, elderly and disabled persons, who reside in large

numbers in the vicinity of the proposed MTS. The blocks surrounding the proposed site include

three nursing homes to wit: Haym Salomon Home located at 2340 Cropsey Avenue, The

Sephardic Home at 2266 Cropsey Avenue, and Bay View Manor Home for Adults, an Adult

Residence located at 2255 Cropsey Avenue, all of which contain vulnerable residents in a frail

state of health. In addition there are two hi-rise senior housing complexes, to wit: the nineteen

story Regina Pacis located at 2424 Cropsey Avenue and the seven story Sons of Italy Residence

located at 2629 Cropsey Avenue, both of which are home for several hundred seniors. Further

located directly to the south and downwind of the proposed site is the Bloch Institute for

Developmentally Disabled Children located at 376 Bay 44 Street, as well as a large public

parkland, soccer fields, a children‘s amusement area, two marinas, Lafayette High School, Public

School 212, Most Precious Blood Elementary School, and to the north and east of the site are

Cavallaro Intermediate School, Public School 101, St Finbars School, Bensonhurst Park and

numerous hi rise and low rise residential housing.

         The landmark 10-Year Children‘s Health Study, conducted by the California Air

Resources Board and cosponsored by US EPA, found serious air pollution impacts to children,

including new and exacerbated asthmas, and reduction in children‘s lung growth and function

that were found in significant numbers of children to be permanent.

In children and adults with developmental disabilities, chronic exposure to diesel and other

pollutants will exacerbate neurological and cognitive difficulties.

           The elderly population residing in the MTS vicinity will be at increased risk for a host

of illnesses, including cardiovascular disease. Recent research has described serious PM health

impacts, including abnormal heart rhythms, heart attacks, artherosclerosis and increased

incidence of stroke.22

           In addition, there are serious occupational impacts. Truck drivers transporting solid

waste to the MTS will face an unacceptable level of risk since they are often forced to idle for

too long, prolonging their exposures to polluting diesel engine trucks and other sources.

           A December 4, 2007 Report prepared by the Natural Resources Defense Council and

the Coalition for Clean and Safe Ports, ―Driving on Fumes: Truck Drivers Face Elevated Health

Risks from Diesel Pollution,‖ reveals that California truck drivers who haul containers in and out

of the Port of Oakland face increased health risks from breathing dangerous levels of diesel

exhaust fumes inside their truck cabs. The amount of diesel particulate matter found inside the

truck cabs was double the level considered acceptable by the Occupational Safety and Health

Administration (OSHA), and up to 2000 time greater than the level typically considered

acceptable by state and federal environmental protection agencies.

           DSNY relies on the statutory measures enacted by State and City government to ensure

against the effects of diesel. The Final Part 360 Application Engineering Report stipulates, for

example, the ―City code that trucks idle for no longer than three minutes will be strictly

22 Diesel and Health in America: the Lingering Threat. Clean Air Task Force. Health in America.pdf. Page 9. 2008.

enforced.‖ The report sets no standards for allowable emission levels for trucks bringing waste to

the site, presumably implying that they need only to adhere to statutory standards. Despite a long

history of City and State enforcement of idling and emissions laws, however, waste carriers

continue to violate them. 23 Exhibit ―L‖. The imposition of fines for these violations does not

mitigate the fact that harmful toxins continue to be release into the air at alarming rates.

        Additionally, while the FEIS acknowledges the potential for odorous emissions from the

proposed MTS, and admits that ―some odors, when sufficiently intense, can adversely affect

health,‖ it concludes that, for the proposed MTS, ―the analysis suggested that emissions would

not pose a risk of detectable, let alone obnoxious, odors at the property boundary or nearby

receptor.‖ It further states that ―the likelihood of irritative effects is also small, and no adverse

odors impacts are expected.‖ See FEIS at 33-21. This dismissal of the real-world likelihood of

detectable and even noxious odors emanating from tons of putrescible waste is not credible. An

environmentally safe odor control plan, one that does not rely on the use of petrochemical-based

so-called deodorizers to mask smells, should have been submitted at part of the Part 360 permit


        Offer of Proof

        (1)     Dr. David O. Carpenter, M.D., will testify that air pollution in the Gravesend Bay

area is already exceptionally high, and the additional diesel truck traffic will increase air

pollution to an unacceptable degree. In addition to the past operation of the incinerator, which

has left a residual exposure to the local population, the levels of air pollution in Kings County are

23 - . See ―State and City Crackdown on Truck and Boiler Pollution to Assist Urban Neighborhood‖. Environment
DEC. December, 2007; ―Settlements With Truck and Bus Fleets Reduce Urban Air Pollution‖. Press Release, Office
of the New York State Attorney General. June 18, 2002; ―DEC Targets New York City Transfer Stations‖. Big
Apple Garbage Sentinel May 28, 1999.

currently the second highest of all counties in New York State, and rank 6 out of 3,109 countries

in the whole of the US.24 The largest single factor is diesel emissions, which in the above report

were found to contribute 1,151 lifetime cases of cancer, while other inhaled toxics added another

95 cases. And this is the current situation, before the added truck traffic that will result if and

when the transfer station becomes operational.

         If the transfer station comes into operation there will be an enormous increase in diesel

trucks operating in the area, leading to elevations in air pollution with particulates and other

priority pollutants which will pose a serious health threat to residents in the area, especially for

children. In addition these will be an increase is odors coming from the solid wastes. Given the

normal wind direction at this site the odor will affect highly populated portions of the area.

         (2)     In NYC Local Law No.77, of 2003, the NYC Council found that it is in the best

interest of City residents, workers and schoolchildren ―for the City to use ultra low sulfur diesel

fuel and the best available technology for reducing the emission of pollutants in its diesel-

powered nonroad vehicles in all areas of the City…‖ It is unclear which nonroad vehicles and

equipment at the proposed SW Brooklyn MTS site may be diesel powered, however, the DEC

must incorporate Local Law No. 77 where applicable for this permit.

C. The Proposed Facility Will Have Significant Adverse Traffic Issues

         DSNY‘s traffic study is deficient, misleading and incomplete. It does not correctly apply

the methodologies and protocols recommended in the 2001 CEQR Technical Manual (referred to

herein as the ―CEQR Manual‖ or the ―Manual‖). Other parts of the final documents, including,

without limitation, the FEIS contain misleading diagrams, text, errors, contradictory statements

and omissions.

24 Id.

       For a few examples of misleading and incomplete documentation, one only needs to first

examine FEIS Figures 5.14-1 and 5.14-2 labeled ―Traffic Analysis Study Area Southwest

Brooklyn Converted MTS‖ and ―DSNY Collection Vehicle Routes Southwest Brooklyn

Converted MTS‖, respectively. Copies are annexed hereto as Exhibit ―E‖.

       Figure 5.14-1 shows the street grid of the study area and labels a portion of the roadway

as ―SHORE PKWY LIEF ERICSON DR‖. To someone unfamiliar with this area it appears that

it is a wide road leading to the proposed MTS. In fact the diagram fails to indicate that Shore

Parkway is actually a stretch of road on the Belt Parkway (opened in 1940). This small stretch of

road was renamed in 1969 by the NYC Council.

       Almost no one in who lives in the area knows it as Lief Ericson Drive, they refer to it at

the Belt, or the Belt Parkway or Shore Parkway. More importantly truck and commercial traffic

are forbidden on the Belt Parkway. The road on which the trucks will travel is the narrow, one-

directional service road running alongside the Belt Parkway. This service road is called Shore


         Notably the above diagrams of the study area and the garbage truck routes both show

several important intersections that were not included in the traffic study, specifically where Bay

Parkway intersects with 86th Street, Benson Avenue and Bath Avenue.                 A traffic study

performed in 2002 will show these intersections have a history of vehicular, bicycle and

pedestrian accidents.

         DSNY relies on the Manual‘s limited definition of a ―high accident‖ intersection.25

However, other studies have used such factors as the type and severity of the accidents, and the

propensity for increased pedestrian accidents as a result of a proposed project, as sufficient

reason to look at the real purpose of pedestrian study at intersections i.e., safety. The data in the

25 2001 CEQR Technical Manual 30-4.

2002 study show that DSNY should have included other high risk intersections in its traffic study

to comply with recommendations in the CEQR Manual.

           DSNY conducted its traffic study only on weekdays during several days in February

2003, rejecting the need for a Saturday traffic study. After an alternate route was suggested for

some of the trucks as they exited the MTS, DSNY conducted an additional traffic study, also

only during weekdays, at several different locations south of the MTS between January 26 and

February 2, 2005.

           DSNY should have conducted its study during the summer months and should have

included Saturdays. DSNY‘s study also should have included the above-referenced intersections

from 86th Street through Bath Avenue.

           When the winter study data was challenged, and a summer study was suggested, DSNY

took the firm position that the Manual required a winter study notwithstanding the opinions of

those community members who are very familiar with the traffic flow and problems of the area.

DSNY also admitted that it did not count pedestrians, as it observed only minimal pedestrian


           The CEQR Manual provides guidelines for the collection of traffic and pedestrian


                  . . . . to help ensure that appropriate, representative traffic data are
                  collected. . . . . Traffic counts should reflect typical conditions at
                  the locations being analyzed.26

           The CEQR Manual suggests excluding the holiday season from before Thanksgiving to

mid January and recommends a wintertime study because it is applicable to a business


26 Id. at 30-8.

                  ― . . a proposed office project should not have its traffic counts
                  conducted during the summer months when many people tend to
                  take vacation time from work and when traffic volumes are
                  typically lower than during the remainder of the year.‖27

         However, the CEQR Manual continues and specifically provides an exception for some


                  . . . a proposed water park, marina, or amusement park should
                  [emphasis in the original] have its traffic count taken during the
                  summer months when traffic patterns are likely to be more
                  representative of future background conditions, or a development
                  in a recreational area such as the Rockaways should be analyzed
                  under summer conditions.28 (Emphasis added)

            The proposed site for the MTS is within a residential and recreational area. A 200 boat

marina and an amusement park for toddlers and small children virtually abut the site. There are

many parks and attractions in the area, some of which abut the roads to and from the site.

            Bensonhurst Park abuts the northern part of Bay Parkway and Cropsey Avenue, which

is the intersection at which all traffic converges on the approach to the service road leading to the

MTS site.

            At the very end of Bay Parkway is Gravesend Bay and the entrance to the promenade

along the water‘s edge.       This promenade is part of the New York City Greenway system

attracting pedestrians, fishermen, joggers, bicyclists and a few who hope to catch a glimpse of

the Harbor Seals that occasionally sun themselves on the rocks at the end of Bay Parkway.

Many of these people approach from Bay Parkway and Cropsey and from the Belt Parkway exits

crossing the same intersections as the garbage trucks and all other cars.

            Thousands of people use these recreational facilities during the summer months and

27 Id.
28 Id.

especially on Saturdays. Fewer people use them during the winter than in the summer. In fact,

the kiddie amusement ride park is closed in the winter, and few, if any, boaters use the Marina in


        DSNY‘s studied an additional area in January 26, 2005 to February 2, 2005. It included

a section of the service road below 26th Avenue and the intersection that abuts Dreier Offerman

Park. However, this road also provides a main artery to and from Coney Island, beaches,

amusements, aquarium, and Keyspan Park, which are all virtually closed after Labor Day.

Accordingly, a traffic study that would reflect typical conditions for the locations being analyzed

should be conducted during the summer months, and include Saturday traffic.

        As everyone knows, even a small amount of pedestrian traffic impedes the traffic flow.

Vulnerable people such as small children and the elderly cross these intersections to avail

themselves of the recreational facilities. Vehicular delays and backups occur. Traffic idles for

longer periods. Air pollution increases because of the exhaust. People are put in harm‘s way.

        The Level of Service classifications on DSNY‘s charts and the suggested mitigation

(i.e., advancing or delaying some traffic signals by one or a few seconds) are invalid because

they are based upon atypical data from the traffic study that formed the basis of the conclusions.

Incorrect data fed into computer software in connection with the Highway Classification Manual

yields false results. As the computer expression goes, ―garbage in, garbage out‖.

       The DSNY traffic studies did not factor in the cumulative impacts of the construction and

operation of a forty million dollar renovation and expansion planned for Dreier Offerman Park to

create a regional park. The DSNY traffic studies did not factor in the cumulative impacts of the

multi-million dollar renovation and rebuilding of Coney Island.

       Accordingly, the incorrect data from the traffic study impacts on DSNY‘s calculations

and conclusions relating to air pollution, pedestrian counts, safety, and accident concerns.

       The estimated number of trucks arriving at the MTS is unreliable if approaching trucks

are inordinately delayed in transit. The timing of processing of waste within the facility is

suspect of the requisite number of trucks do not arrive as scheduled.

       Incorrect traffic data directly impacts on Special Condition number 36, which prohibits

―truck queuing on a public street in association with the subject facility.‖ Trucks arriving in

bunches will cause queuing, increased idling time and increased air pollution. Toddlers on their

mini rides at Nellie Bly Amusement Park approximately 500 feet away will breathe in this


C. The Proposed Facility Will Expose Residents to Use of Pesticides

       In its Final Environmental Impact Statement (FEIS), the City writes:

               Procedures to control vermin, such as rats and insects, would be or,
               in the case of existing facilities, are incorporated into the operating
               permit of each Proposed Plan Facility. Licensed exterminators
               would service each Converted MTS monthly. ... The exterminators
               would evaluate potential pest and vector problems and apply bait
               and/or spray throughout the refuse handling area, the tipping floor,
               the lunch and locker rooms and administrative areas. Standing
               water in barges not being used would be treated with larvicide and
               pesticide spray when necessary. See FEIS at 33-5.

       The proposed transfer station will be situated right on Gravesend Bay, which is the most

environmentally sensitive water body in this area and perhaps in the entire State. Even tiny

amounts of pesticides kill fish, horseshoe crabs (which, in addition to being the oldest creatures

on the planet, are indispensable for scientific research and which are currently thriving in the

Bay), butterflies, bees, birds, dragonflies, etc., as well as mosquitoes and unwanted critters. The

labels on Malathion, Pyrethroids, and piperonyl butoxide (a so-called synergist and a carcinogen

in most pyrethroid combinations) all warn against spraying over or near bodies of water.

         Discharge of pesticides into NYC water bodies has had immediate adverse impacts on

environmental health. On September 24, 1999, for example, numerous bluegill sunfish were

found dead in Clove Lake, Staten Island, New York.29 NYSDEC attributed this fish kill to the

presence of the toxic pesticide, Malathion. Toxicological studies performed on the bluegill

sunfish confirmed the presence of Malathion.30 The pesticides discharged into NYC water

bodies were found to contain toxic chemical ingredients. The U.S. Second Circuit Federal Court

ruled that ―a pesticide is certainly a toxic substance,‖31 and that the pesticides discharged are

―pollutants‖ and ―toxic pollutants‖ within the meaning of the Clean Water Act.32 In a final

ruling that stands today, U.S. District Court Judge George B. Daniels ruled that ―if the City did

discard the pesticides over water, it did so in contravention of the CWA. Such activity would

constitute the discharge of a pollutant into navigable waters from a point source, and cannot be

done without an NPDES permit.‖33

         By applying pesticides to barges on or near waterways and by washing the residues into

the Bay on a regular basis as DSNY has planned, the City will be in premeditated violation of the

Clean Water Act and other laws and regulations designed to protect wildlife, waterways and

habitats. Should DSNY develop different plans for pesticides and cleanup, these need to be

explicitly reflected in the proposal and submitted for public review and comment. This has not

been done.

         DSNY also neglects to provide information about the kind of baiting or rodenticide that

will be used for rats around the perimeter of the facility; and, it also provides no consideration in

29 New York State Department of Environmental Conservation [NYSDEC] Memorandum from Peter Furdyne to
DEC wildlife pathologist Ward Stone, January 21, 2000.
30 Illinois Department of Agriculture Animal Disease Laboratory Toxicology Report, November 19, 1999.
31 No Spray Coalition, Inc. v. City of New York, 2000 WL 1401458, *3 n.2 (S.D.N.Y. 2000).
32 CWA § 502(6), (13), 33 U.S.C. 1362.
33 U.S. District Court, Southern District of New York: No Spray Coalition, Inc. v. The City of New York, et al., 00
Civ. 5395 (GBD), June 7, 2005)

any of the documents submitted as to how the pesticides and rodenticides will be kept from being

washed into the water or land, or be blown into the air, affecting other wildlife, particularly birds,

as well as human beings.

       Currently, pesticides are the leading cause of non-natural bird deaths in New York City.

(More than 30 percent of the dead birds submitted to NY State DEC wildlife pathologist Ward

Stone are said to have died from pesticide poisoning.) Forty million dollars has been allocated

by New York City to set aside a section of Dreier-Offerman Park adjacent to the proposed site to

become a wildlife preserve. The introduction of pesticides into this area will be devastating to the

migratory and local bird populations, as well as to fish and marine wildlife. It may also be

dangerous for dogs and other pets (which are often walked in Dreier-Offerman Park).

       While some of this would apply to any location for a facility applying pesticides, it is

especially onerous at the proposed site because of its immediate proximity to the natural wildlife

avian preserve, its location on one of the most environmentally sensitive habitats for fish and

marine life in the state, and for the way the winds blow – directly from the site into the nearby

apartment buildings, schools and other facilities heavily used by neighborhood residents who

were forced to also bear the brunt of the pollution from the now-closed municipal incinerator at

the same site.

       This situation is compounded by the proximity to a number of schools and youth

facilities. Pesticides are especially dangerous for brain and nerve development in young children,

and for elderly or immune-compromised people. Yet DSNY‘s proposal makes no in depth

accounting of these circumstances, nor treats the matter responsibly in any environmental and

health-related fashion. With the expectation that almost 5,000 trucks per month will be utilizing

this facility, picking up pesticides on their wheels and rumbling past various local facilities for

developmentally disabled children on their route, one would think that a proper Environmental

Impact Study would address those concerns, as well as pesticides that become airborne or that

are washed into the water. Yet not a single line in the FEIS addresses these concerns.

        Pesticides, which are linked to a long list of serious illnesses will pose a significant health

threat to the vulnerable populations in the vicinity of the site. A Centers for Disease Control

study that found that all residents of the United States, including residents of New York City and

State, now carry dangerously high levels of pesticides and their residues in our bodies, which

may have onerous effects on our health.34 Additionally, a U.S. Geological Study showed that a

large percentage of waterways and streams throughout the United States, including those in New

York City and State, have been found to contain environmentally destructive pesticides that may

severely impact on animal and aquatic life.35 There are also studies confirming that pesticides

are both a trigger for asthma attacks and a root cause of asthma and that asthma is epidemic

throughout New York City.36

Offer of Proof

        (1)      John Zuzworsky, a New York State DEC licensed commercial pesticide

applicator, as well as a National Park Service vector control coordinator, will testify about the

concerns of pesticide use in Gravesend Bay, as well as potential adverse resulting health effects.

John Zuzworsky‘s statement and curriculum vitae is attached hereto. The DSNY plans for pest

control are insufficient and inappropriate. Regarding the methods of preventing pest access that

DSNY proposes, it is clear that abundant populations of several pest species will arrive with the

34 Third National Report on Human Exposure to Environmental Chemicals, Centers for Disease Control, 2005
35 U.S. Geological Survey: The Quality of Our Nation's Waters, Pesticides in the Nation's Streams and Ground
Water, 1992-2001,
36 Salam, et al: Early-life environmental risk factors for asthma findings from the children's health study.
Environmental Health Perspectives 112(6):760-765.

garbage and reproduce at and near the facility. The varieties of pests include rats, mice, flies,

cockroaches and mosquitoes.

       The southwest Brooklyn converted MTS was one of three MTS‘s with the greatest

biological integrity. ―It housed a diverse benthic, larval finfish and adult finfish community. It

also had the greatest number EFH-listed fish (8) and larvae(4) and the highest number of

Dyspanopeus sayi ( a mud crab whose presence indicates suitable dissolved oxygen levels in the

water column)…A diverse finfish community exists at the southwest Brooklyn converted MTS

Of 1293 adult finfish collected 69% were bay anchovy. Weakfish (Cynosciion regalis) and Scup

(Stenotomus chrysops) were also abundant at the site… The Southwest Brooklyn MTS site

housed the greatest number of EFH species (8) The species collected were Scup, Windowpane,

Summer Flounder, Atlantic Herring, Winter Founder, Atlantic Butterfish, Bluefish, and Black

Sea Bass.‖ See FEIS at 5-39. ―Some of the highest finfish egg and larval densities and the

greatest larval species richness were found in the Southwest Brooklyn MTS. A Sharon weaver

Index indicates this MTS to have the greatest finfish and egg and larval species diversity and

ajaccard Index indicates that the fin fish and larvae were most dissimilar at the southwest

Brooklyn MTS‘s sampled.‖ Id.

       The proposed SW Brooklyn MTS site is too close to natural terrestrial and marine

resources to use rodenticides. The available approved rodenticide baits remain active in rodents

long after the ingestion and dispatching of the rodents. Many unintended species of wildlife will

be killed by ingesting dying and dead rodents. The most susceptible species include raptors

species such as the endangered peregrine falcon, Northern Harrier Hawk, as well as short eared,

long-eared, Saw Whet Owls, Crows, Gulls and many other common birds. Marine resources,

especially fish, also fall victim to the poison. There is no specific reference to this in the FEIS or

permit to show any consideration of this.

       The proposed site is also too close to water for pesticide application used to control flies,

cockroaches and mosquitoes. Drift and runoff issues crate a dangerous situation for marine

resources. The proposed SW Brooklyn MTS will harbor pests at the most difficult to control

levels. Options for control become limited. Many pesticide choices are not labeled for use near

water due to their harmful effect on marine resources. If these pesticides are used within their

guidelines, there is increased potential for drift due to the wind conditions due and close

proximity to the water. Run-off of pesticides from washing of trucks, barges and equipment is

also a concern. There is no mention or plan referenced that address these issues or give

confidence that such considerations have been reviewed.

       The enclosed nature of the facility and its long operation hours will potently expose

workers to residual pesticides. There is no information provided on what will be treated, how it

will be treated or what pesticides will be used. Will workers be present at time of pesticide

applications? Will residuals be used? How will workers be protected? Creation and

implementation of integrated pest management plans, pest practices guidelines, are common

practices for city and state government agencies. New York City enacted local law 37 requiring

the reduction in the use of pesticides by city agencies there is no mention of consideration or

adherence to this. How will pests be controlled with respect to reducing pesticide use in an area

with such large pest control challenges? With such important natural recourses within the impact

zone of any pesticides applied, and no reference of concern or consideration about them in the

FEIS, there is little confidence as to the practice solutions available and whether they will be

followed and enforced.

C. The Proposed Facility Will Affect Residents Who Regularly Consume Fish from
Gravesend Bay

         New York City posted a public health advisory in Bay Ridge, stating people should not

consume the fish.37 Apparently, the fish in the area are showing signs of sludge that came out of

the Owl Head's waste treatment plant in Staten Island, demonstrating how the city‘s waste

treatment plants are having an adverse impact on the city's most diverse area of fish wildlife.

There are many local residents who, despite posted warnings by the city and state regarding the

health effects of seafood consumption from the New York Harbor, rely on the supply of local

seafood for their livelihood.

Offer of Proof

         (1)      Captain Seagull‘s Sportfishing Chart annexed hereto as Exhibit ―F‖. This chart

displays a multitude of fishing locations throughout Gravesend Bay.

         (2)      Photograph of a fisherman in Gravesend Bay annexed hereto as Exhibit ―G‖. The

picture demonstrates that despite warnings, people in the area who depend on fresh catches from

Gravesend Bay will continue to fish regardless of potential contamination, therefore any

additional causes of pollution must be prevented.

         Petitioners are concerned with the level of contamination and adverse health effects the

vulnerable population and community surrounding the proposed SW Brooklyn MTS site will be

exposed to. Under NYS DEC Commissioner Policy 29, Environmental Justice and Permitting, it

is the general policy of the DEC to ―promote environmental justice and incorporate measures for

achieving environmental justice into its programs, policies, regulations, legislative proposals and

37 Bay Ridge article concerning the safety of eating fish from the area:

activities.‖38 The purpose of the policy is to ―ensure that DEC‘s environmental permit process

promotes environmental justice.‖39 The DEC must consider the environmental justice

implications from granting any permits for the proposed SW Brooklyn MTS.

          The draft permit conditions are insufficient to protect public health, safety and welfare
from the cumulative health impacts of the proposed MTS, including but not limited to increases
in air pollution resulting from the operation of the facility; exposures to contaminants, including
dioxins, re-suspended in the course of dredging and demolition of the SW Brooklyn incinerator
and the construction of the proposed MTS; and consumption of fish contaminated by dredging of
toxic sediments.
          Moreover, both the FEIS and the DSNY permit process have failed to adequately analyze
the disproportionate and discriminatory adverse environmental health impacts the proposed MTS
will have on the low-income community that surrounds the MTS site, violating DEC Policy CP-
29 ―Environmental Justice and Permitting.‖
          The low-income community living within a 1-mile radius of the proposed MTS site
meets the DEC CP-29 definition of an environmental justice community. This determination is
based on US Census data and the block data reported by New York City‘s Department of City
Planning in ―Community District Needs‖ (2004-5). Of a total population of 100,458 persons
residing within a 1-mile radius from the proposed MTS site, 26,296, or 26.17%, have annual
incomes below the poverty line, exceeding the 23.59% CP-29 threshold for a low-income
environmental justice community.
          In addition, a large population of minority residents (48,303), foreign-born residents
(43,648) and elderly residents (16,371 over the age of 65 years) also reside within a 1-mile
          Finally, DSNY fails to adequately analyze impacts of the MTS on the vulnerable
subpopulations of children, including developmentally challenged children, and elderly persons
residing in the vicinity of the site.
          In the Environmental Justice analysis appearing in the ―Draft Scoping Document for the
City of New York Comprehensive Solid Waste Plan,‖ DSNY has drawn the boundary line

39 Id.

establishing the study area in an arbitrary and capricious manner (see Figure A-3). In doing so,
DSNY has excluded not only a significant minority community, such as Marlboro Housing
residents and residents of the Coney Island area, but also significant numbers of vulnerable
          The blocks surrounding the proposed site include three nursing homes and two high-rise
senior housing complexes.
          Despite their close proximity to the proposed site, the Environmental Justice analysis in
the 2004 ―Draft Scoping Document for the City of New York Comprehensive Solid Waste
Management Plan,‖ excludes these facilities. Further located directly to the south and downwind
of the proposed site is the Bloch Institute for Developmentally Disabled Children, a large public
parkland, soccer fields, a children‘s amusement area, two marinas, Lafayette High School, Public
School 212, Most Precious Blood Elementary School. To the north and east of the site are
Cavallaro Intermediate School, Public School 101, Saint Finbars School, Bensonhurst Park and
numerous high-rise and low-rise residential buildings.
          In addition, DSNY‘s failure to analyze impacts that will pose a disproportionate burden
on the low-income environmental justice community and the vulnerable subpopulations of
children, elderly and developmentally challenged individuals violate federal environmental
          Both the Environmental Protection Agency (EPA) and National Environmental Policy
Act (NEPA) call for performing a ―Cumulative Impact Assessments‖ for any proposed action
with potential environmental impacts.
          Cumulative risk assessment is the analysis of the combined risks to human health or the
environment from multiple pollutants transmitted through multiple pathways of exposure. The
National Research Council‘s 1994 report ―Science and Judgment in Risk Assessment,‖ the 1997
report by the Presidential/Congressional Commission on Risk Assessment and Risk Management
entitled ―Risk Assessment and Risk Management in Regulatory Decision-Making‖ have
highlighted the need to take into account the accumulation of risks to an affected community,
from multiple stressors. In addition, recent legislation, including the Food Quality Protection Act
of 1996, directed the EPA to move beyond single chemical assessments and to focus, in part, on
the cumulative effects of chemical exposures occurring simultaneously. Further emphasizing the
necessity for a focus on cumulative risks are the cases filed under Title VI of the 1964 Civil

Rights Act. These cases have demanded an integrated approach to assessing human health risks
from environmental contaminants across a defined population.
        Under NEPA, a description of the affected area for an environmental impact assessment
consists of four types of information: (1) data on the status of important natural, cultural, social
or economic resources and systems; (2) data that characterize important environmental or social
stress factors; (3) a description of pertinent regulations, administrative standards, and
development plans; and (4) data on environmental and socioeconomic trends. Health effects on
populations and susceptible individuals are a key part of the affected environment as considered
by the NEPA cumulative effects analysis.
        Likewise, EPA policy and guidance requires analysis of impacts on vulnerable
populations as part of a cumulative effects analysis. According to ―Ensuring Risk Reduction in
Communities with Multiple Stressors: Environmental Justice and Cumulative Risks/Impacts‖ a
2004 National Environmental Justice Advisory Council guidance document, ―the concept of
vulnerability goes to the heart of the meaning of environmental justice. Vulnerability recognizes
that disadvantaged, underserved, and overburdened communities come to the table with pre-
existing deficits of both a physical and social nature that make the effects of environmental
pollution more, and in some cases unacceptably, burdensome. As such, the concept of
vulnerability fundamentally differentiates disadvantaged, underserved, and overburdened from
health and sustainable communities. Moreover, it provides the added dimension of considering
the nature of the receptor populations when defining disproportionate risks or impacts.‖
        EPA‘s formal definition of vulnerability is highly relevant to a community which (1)has a
long history of sustaining serious health impacts from the 30 years-long operation of a heavily
polluting incinerator; (2)suffers from cancer at rates significantly above surrounding zip
codes;(3)encompasses numerous residences, schools and facilities that serve vulnerable
subpopulations of children, elderly and developmentally disabled persons;(4)includes residents
who may depend on consumption of contaminated fish.
        According to EPA, vulnerability includes the following factors contributing to
environmental justice impacts:
        -- susceptibility/sensitivity: refers to an increased likelihood of sustaining and adverse
effect by virtue of one‘s life state (e.g., pregnant, young, old), biological susceptibility (e.g., an
impaired immune system), or a pre-existing condition, such as asthma.

       -- differential exposure: encompasses all present and past exposures a community may
have suffered. Past exposures can increase the body burden of a population, so that vulnerable
members start off at a higher dose.
       --differential preparedness: refers to subpopulations which, for biological, social or
economic reasons, are less able to withstand an environmental insult.
       -differential ability to recover: refers to a subpopulation‘s ability to recover from an
insult or stressor because they are better informed about environmental risk, health and disease,
have access to better health care and/or nutrition, were able to obtain earlier diagnosis.
       DSNY should be compelled to address in detail the cumulative risks/impacts which will
disproportionately burden the low-income and otherwise vulnerable populations that reside
within a one-mile radius of the proposed MTS. In consultation with the affected communities as
part of a public review process, DSNY must develop a comprehensive, detailed mitigation plan
to address these impacts.

       Offer of Proof

       (1)     Dr. David O. Carpenter, M.D., will testify of the severe/large impact upon the

public health of the local residents and especially upon the vulnerable population, which will

occur if the proposed SW Brooklyn MTS is approved. There are significant environmental

justice issues involved in the placement of an MTS at Bay 41st Street. This portion of Brooklyn

is already contaminated and the nearby residents are of lower social-economic status.

Construction and operation of this transfer station will significantly add to the unfair burden

borne by local residents. In addition there are several other facilities housing nearby, especially

vulnerable populations, including three nursing homes, senior housing projects, several schools

and public parks and playgrounds.

       (2)     William A. Colton, Esq., will testify about the vulnerable population who are

impacted by the proposed use of this site. The blocks surrounding the proposed site include

three nursing homes to wit: Haym Salomon Home located at 2340 Cropsey Avenue, The

Sephardic Home at 2266 Cropsey Avenue, and Bay View Manor Home for Adults, an Adult

Residence located at 2255 Cropsey Avenue, all of which contain vulnerable residents in a frail

state of health. In addition there are two hi-rise senior housing complexes, to wit: the nineteen

story Regina Pacis located at 2424 Cropsey Avenue and the seven story Sons of Italy Residence

located at 2629 Cropsey Avenue, both of which are home for several hundred seniors. Despite

the fact that all of these are located within 2500 feet of the proposed site yet alarmingly, the

Environmental Justice map found at Figure A-3 in the Draft Environmental Justice Analysis of

the ―Draft Scoping Document for the City of New York Comprehensive Solid Waste

Management Plan, dated May 2004, excludes these facilities. Further located directly to the

south and downwind of the proposed site is the Block Institute for Developmentally Delayed

Children and adults located at 376 Bay 44 Street, as well as a large public parkland, soccer fields,

a children‘s amusement area, two marinas, Lafayette High School, Public School 212, Most

Precious Blood Elementary School, and to the north and east of the site are Cavallaro

Intermediate School, Public School 101, St Finbars School, Bensonhurst Park and numerous hi

rise and low rise residential housing.

       The 2000 US census data covering a one-mile radius from the proposed transfer station

site. The block data as reported in the booklet ―Community District Needs‖ prepared by the City

of New York, Department of City Planning (2004-2005) indicates that within such one-mile

radius of the site there is a population of 100,458 persons. Calculating the census districts within

that mile radius shows 48,303 of that total population are minority persons, 16,371 are over the

age of 65 years, 43,648 are foreign born and 26,296 have incomes below the poverty line.

       US Census data and the block data reported by New York City‘s Department of City

Planning in ―Community District Needs‖ (2004-2005) find that, of a total population of 100,458

persons residing within a 1-mile radius from the proposed MTS site, 26,296, or 26.17%, have

annual incomes below the poverty line. This exceeds the 23.59% DEC CP-29 threshold for

considering a community a low-income community.

       In the ―Draft Scoping Document for the City of New York Comprehensive Solid Waste

Plan‖, the Environmental Justice analysis performed by the applicant appears to have drawn the

study area, shown in Figure A-3, in a manner as to exclude, arbitrarily and capriciously the

environmental justice population living in heavily minority communities such as Marlboro

Housing and Coney Island area. Further the study area appears to exclude those in the Regina

Pacis Senior apartments, The Sephardic Home, Haym Solomon Home, Bayview Manor Home

for Adults, Sons of Italy Senior Housing, all of which are less than 2500 feet from the proposed

site and all of which will be directly impacted.

       This exclusion becomes critical in that it is recognized that federal air quality threshold

standards for the elderly and the frail, such as those who reside in nursing homes and senior

housing, require special consideration. This proposed project will increase traffic congestion and

diesel pollution along Cropsey Avenue, where these facilities front, as well as on the Shore

Parkway Service Road which is located directly to the east of them.

       This community had been subject to the negative impacts of the non-permitted operation

of an incinerator for some thirty years, until its closure in 1988. It is inconceivable that it now be

subject to the release of the residual toxins and contaminants resulting from this improper

operation into the environment on land, into the air and into and onto the water, through the

dredging and construction and operation of this proposed transfer station or that its

environmental justice concerns be excluded by an arbitrary and capricious configuring of the

potential environmental justice study area.

        (3)    New York State Cancer Registry for 1999 – 2003, Colton Exhibit #15, regarding

reported cases of various forms of cancer in the zip code of 11214, which is the zip code which

encompasses the area surrounding the former Southwest Brooklyn Incinerator site (the proposed

SW Brooklyn MTS site). The zip code 11214 has the highest number of cases observed for

Lung and Bronchus Cancer of all the zip codes in Kings County. In addition, zip code 11214 has

the second highest number of cases observed in relation to Female Breast Cancer of all the zip

codes in Kings County. In relation to colorectal cancer incidence, the 11214 zip code has the

third highest number of cases observed of all the zip codes in Kings County. Also marked as

Colton Exhibit #15 is chart of Selected Cancers by Sex and Age comparing the average year rate

in Bensonhusrt-Bay Ridge with the average yearly rate for New York City for the years 1992-

1996 from Bensonhurst-BayRidge Neighborhood Health Profile. A copy of Brooklyn Zip Code

Map, (Colton Exhibit # 14), contains the approximate former Southwest Brooklyn Incinerator

site marked. Both of these studies, the first comparing zip code 11214 with the rest of Brooklyn,

and the second comparing the average yearly rates in the Bensonhurst Bay Ridge neighborhood

with the average yearly rates in NYC, show higher cancer rates for Lung Cancer, Colorectal

Cancer and Breast Cancer in the area around the proposed Southwest Brooklyn Transfer Station


Issue 2:       The Department is Without Authority to Approve the Solid Waste
               Management Facility Permit, Because DSNY’s Application Does Not Meet
               the Mandatory Requirements of Part 360.

        A.     DSNY Has Not Described Where All Waste Will Be Disposed of, and Has Not
               Provided a Proposed Transfer Plan

        Under Part 360, ―[a]n application for a solid waste management permit must conform to

the requirements set forth in section 360-1.9 of this Part and the requirements of section [360-

11.2]. Applications for initial permits to construct and operate must include‖ an engineering

report that specifies ―where all waste will be disposed of.‖ 6 NYCRR § 360-11.2(a) (emphasis

added). The regulations also require the engineering report to include a ―proposed transfer plan

specifying the transfer route, the number and type of transfer vehicles to be used, and how often

solid waste will be transferred to the disposal site.‖ Id. at § 360-11.2(a)(3)(iii).

       Offer of Proof

       (1)     DSNY‘s application and the Draft Permit establish that DSNY has failed to meet

these requirements. DSNY has not specified where the waste processed at the Bay 41st Street

transfer station will be disposed of and, without this information, it cannot specify the transfer

route. The Department appeared to have understood this fatal flaw in the application in its

January 4, 2007 notice of incomplete application comments, where the Department specifically

commented that the Operations and Maintenance Plan ―must include, at minimum, vendor details

for the transfer, transport and disposal of waste from the facility including intermodal facilities,

barge staging facilities, BMU contractors and other support facilities,‖ as well as copies of all the

appropriate contracts and vendor permits. DSNY Response to the January 4, 2007 DEC Notice

of Incomplete Application Comments on the Final Part 360 Permit Application for the Marine

Transfer Station Waste Containerization Facilities, dated January 29, 2007, Note 19. Regardless,

the Draft Permit would allow DSNY to completely construct the facility without this vital


       Without knowing where the waste will be disposed of, it is impossible to determine the

ultimate environmental impacts of the cost, the ultimate costs of the plan, and whether the plan is

even feasible. Moreover, allowing DSNY to defer the submission of its transfer plan after the

permit has been issued deprives the public the opportunity to comment on the plan and raise

legitimate issues. See In the Matter of County Landfill in the Village of Monticello, Sullivan

County, 2004 WL 1701672 (N.Y. Dept‘l Envtl. Conserv. July 20, 2004) (Buhrmaster, ALJ) (odor

was an issue for adjudication where odor control plan should be part of Part 360 permit

application, not submitted within 15 days of permit issuance, because ―[t]o be meaningful, the

opportunity to raise issues about [the plan] must be afforded formally, within the context of the

permit hearing, and not informally, after permit issuance‖).

       The Department should not have deemed the permit application to be complete or

accepted a draft permit with a transfer plan as a special condition, where the regulations

explicitly require the plan to be included as part of the application. A permit cannot be issued

without such a plan.

       B.      The Proposed Facility Will Not Comply With Local Laws

       A Part 360 permit must assure that the activity will comply with ―the requirements

identified in this Subpart [360-1] and the applicable Subpart pertaining to such a facility, and

with other applicable laws and regulations.‖ 6 NYCRR § 360-1.11(a). The Draft Permit cannot

assure such compliance, as the proposed facility does not meet the requirements of the New York

City Zoning Resolution (―Zoning Resolution‖).

      The Zoning Resolution allows a waste transfer station in an M3 zoning district only if the

station complies with specific performance standards relating to, among other things, noise,

vibrations, dust and odor. Under Zoning Resolution § 42-15, ―marine transfer stations for

garbage‖ are classified as a ―Use Group 18‖ use. Zoning Resolution § 42-20 provides that

―[u]ses listed in Use Group 18 are permitted in M1 or M2 Districts (as well as M3 Districts)…if

such uses comply with all of the applicable performance standards for such districts.‖ The same

provision also provides that, ―[i]n all Manufacturing Districts, after December 15, 1961, any use

thereafter established or changed to a use listed in Use Group… 18, and every building or other

structure…thereafter developed, constructed or used for any use listed in Use Group… 18, shall

comply with each and every performance standard governing noise, vibration, smoke and other

particulate matter, odorous matter, toxic or noxious matter, radiation hazards, fire and explosive

hazards, humidity, heat, or glare applicable to the district in which such use, building or other

structure… is located.‖ The specific performance standards to which Zoning resolution § 42-20

refers are set forth in the succeeding provisions of the Zoning Resolution, starting with § 42-21.

The performance standard for noise sets maximum permitted decibel levels at or beyond any lot

line. See Zoning Resolution §§ 42-213 and 42-214.

        Offer of Proof

      The New York City Noise Code (Local Law No. 113 of 2005) §24-218(e) states that

                [w]here the commissioner finds that sound from any refuse
                collection facility regulated by the department of sanitation
                exceeds the decibel level limits set forth in this section, the
                commissioner shall order the operator of such facility to submit a
                certification by a professional engineer as to whether or not the
                facility is in compliance with the noise standards required by the
                department of sanitation rules (16 RCNY Ch. 4) and if not in
                compliance, the mitigation measures that will be undertaken to
                bring such facility into compliance.40

However, DSNY has not proposed any mitigation for any potential exceedance of the mandatory

noise performance standard. The permit must not be granted based on DSNY‘s failure to plan

for exceeding applicable noise performance standards.

Issue 3:        DSNY Has Not Met Its Burden of Proving that the MTS is Necessary

        DSNY has not met its burden of proving that the transfer station is necessary, considering

the reasonable and feasible alternatives that are more economically and environmentally sound.

The applicant has the burden of establishing that the standards for issuing a wetlands permit

under 6 NYCRR § 661.9 will be met. See 6 NYCRR § 661.9(a). Under these standards, DSNY


must show that the proposed SW Brooklyn MTS facility ―is reasonable and necessary, taking

into account such factors as reasonable alternatives to the proposed regulated activity and the

degree to which the activity requires water access or is water dependent.‖ Id. At § 661.9(b)(iii).

In addition, before issuing a permit under Part 608, the Department must determine that the

proposal is reasonable and necessary. See Id. at § 608.8(a). Finally, 6 NYCRR § 231-2.4(a)(ii)-

requires a statement of how the benefits of the proposed project outweigh the social and

environmental impacts, with a list of alternatives.

        Offer of Proof

        (1)      Mr. Colton will testify about the social and economic impacts that will occur with

placement of the proposed SW Brooklyn MTS. DSNY has failed to demonstrate that the

proposed project will outweigh the social and environmental impacts.

        The neighborhood is a residential and recreational area which contains, among other

things, homes of working class residents such as one and two family homes, high rise residential

apartment buildings, NYC Public Housing apartment buildings, approximately ten parks, an

amusement park for very small children abutting the entrance to the MTS41, two schools for

developmentally disabled children, a home for handicapped children, a junior high school, a

community residential opportunities facility, a religious school, four nursing homes, two

residences for senior citizens, and a ―Family Head Start‖ facility.

        In addition to the vulnerable population in the area, the FEIS references the

City/Brooklyn Waterfront Development Plan, which extends from the northern end of Bay Ridge

to the northern shore of Coney Island at the southern end.42

41 This park is referred to in the DSNY documents as ―Nellie Bly‖ an amusement park containing thrill rides for
toddlers and small children, which has been in existence since mid 1960‘s and is operating with new ownership
under the name Adventurer‘s. It is approximately 500 feet from the site.
42 FEIS at 5-6.

Issue 4:       DSNY Has Not Met Its Burden of Proving that the MTS Will Not Have an
               Adverse Impact on Natural Resources

       DSNY has not met its burden of proving that the transfer station will not have an adverse

impact to Gravesend Bay. Gravesend Bay is characterized as being in the tidal wetlands littoral

zone (see 6 NYCRR § 661.4(hh)(4)). The applicant has the burden of establishing that the

standards for issuing a wetlands permit under 6 NYCRR § 661.9 will be met. See 6 NYCRR §

661.9(a). DSNY must prove that the SW Brooklyn MTS:

               is compatible with the policy of the [Tidal Wetlands Act] to
               preserve and protect tidal wetlands and to prevent their
               despoliation and destruction in that such regulated activity will not
               have an undue adverse impact on the present or potential value of
               the affected tidal wetland area or adjoining or nearby tidal wetland
               areas for marine food production, wildlife habitat, flood and
               hurricane and storm control, cleansing ecosystems, absorption of
               silt and organic material, recreation, education, research, or open
               space and aesthetic appreciation…taking into account the social
               and economic benefits which may be derived from the proposed

Id. at § 661.9(b)(i). In addition, the construction of a commercial or industrial facility in a

littoral zone is a presumptively incompatible use, whether it is water dependent or not. See Id. at

§ 661.5(b)(47), (48). DSNY has the burden of overcoming this presumption and demonstrating

that the ―proposed activity will be compatible with the area involved and with the preservation,

protection and enhancement of the present and potential values or tidal wetlands.‖ Id. at §

661.9(b)(v). Similarly, before issuing a permit under Part 608, the Department must determine

that ―the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the

natural resources of the State, including soil, forests, water, shellfish, crustaceans and aquatic and

land-related environment.‖ Id. at § 608.8(c).

       DSNY has not established that there will be no adverse impact on the present or potential

value of Gravesend Bay for, among other things, marine food protection, wildlife habitat or

recreation. The tidal wetlands regulations provide that ―littoral zones include areas of extreme

variability in their contributions to marine food production and other tidal wetland values, and

each such area requires a specific assessment of tidal wetlands values.‖ 6 NYCRR § 661.2(e).

However, DSNY has not provided a specific assessment of the proposed SW Brooklyn MTS site.

Its presentation of the ecological data in the Joint Permit Application relies on incomplete or

misrepresented field studies. Therefore, any conclusions regarding the level of potential impacts

to wetlands or proposed mitigation plans are baseless.

       In its comments on the DEIS, the Department urged DSNY to provide further detail and

discuss the loss of marine resources habitat and open water. See FEIS at 40-300. The

Department stated that ―the littoral zones, tidal wetlands and open water and habitat existing at

the shoreline structures, are beneficial and protected for their natural resources benefits.‖ Id.

Rather than provide further detail, DSNY responded that its assessment in fact indicated that the

waters ―were rich in benthic, epibenthic, adult, larval, and juvenile finfish,‖ but that the ―loss of

marine habitat and communities due to construction and dredging will only be temporary.‖ Id.

This speculative and unsubstantiated response, as well as DSNY‘s Joint Permit Application and

Draft Permit, should be deemed inadequate by the Department.

       1)      Effects from Dredging

       Dredging the contaminated sediments will have a harmful impact on marine life in the

vicinity of the Brooklyn MTS and of Gravesend Bay. There is no method of dredging that does

not cause resuspension of sediments and spillage of sediments. The newer environmental

dredges are designed to minimize the spillage and loss of sediment, but even these cannot

complete prevent the problem. Whenever any type of dredging takes place, some sediment is

resuspended and exposed to the water column, and eventually settles out as newly deposited

surface sediment. This process exposes organisms in the dredged ecosystem to increased levels

of contaminants, such as dioxin, including that which was previously trapped in sediment below

the surface. While normal background conditions, such as storm-induced erosion and turbulence

from ship traffic, tend to resuspend some of the sediment nearest the surface, dredging to greater

depths needed for a berthing or docking facility will resuspend and disperse far larger quantities

of more highly contaminated sediments, including sediments that are currently well beneath the

surface. The rate at which a specific dredging project will resuspend the contaminated sediments

is influenced by the type of dredge used and the method of operating the dredge, but also by

other factors such as the experience of the dredge operator, weather, tides, currents, and the types

of sediments being dredged.

        The contaminated sediments that are resuspended can be expected to disperse throughout

Gravesend Bay, and to settle especially in the shallows and in grass areas where water flow is

slowed and submerged grasses trap sediments. Smaller, lighter, silty sediments, are the organic

fraction reported by Weis to be 10-26 % of the sediment volume, an incredibly high organic

composition. These organic sediments suspend most easily and tend to be most highly

contaminated, will also tend to be distributed farthest from the source. The shallow grass areas

are habitat for larval and juvenile fish and invertebrates (lobster) and these juvenile animals will

be most affected by the contaminants.

        Distribution of contaminated sediment in the shallow areas of Gravesend Bay and nearby

waters will increase the toxic burden to fish, aquatic birds, marine mammals and terrestrial

mammals that depend on fish and shellfish for food. Fish eggs, larvae, and juveniles are

typically the life stages most sensitive to these exposures; this early life-stage sensitivity is true

for other animals as well. The nature of dioxin toxicity is such that animals often die slowly or

experience severe reproductive and/or developmental abnormalities from tissue poisoning.

Higher dioxin levels in sediment in the shallow areas of the estuary will have the greatest impact

on eggs and larvae because these areas are the preferred habitat for juvenile animals. Fish, crabs,

and many other aquatic species move to the shallow areas for protection and to feed, which will

put them in closer proximity to the dioxin-contaminated sediments that have been dispersed by

the dredging operations.

        Once aquatic animals and fish-eating birds and mammals take up the dioxin from the

contaminated sediments, it will be retained for many years. Adult animals will be affected for

many years to come and will pass the dioxin to offspring through transfer from females into

eggs, with the potential for significant adverse effects on survival, growth, development and

reproduction. People who are exposed to these increased levels of dioxin will have an increased

risk of cancer, and greater incidences of reproductive and developmental problems, immune

dysfunctions, and liver disorders.

        No studies have been done on how the health of local subsistence anglers will be

impacted by increased bioaccumulation of toxins in marine biota. These people are dependent on

local fish to feed themselves and their families. In addition, many are not conversant in English,

making it even more difficult to communicate the dangers associated with eating contaminated


        Offer of Proof

        (1)    Dr. Carpenter will testify that the dredging will mobilize contaminants and result

in an elevation in levels in fish and other marine life which are caught and consumed by nearby

residents and others who use these waters for recreational and subsistence purposes. In addition

the proposal will disturb tidal wetlands, with adverse effects on fish and wildlife that exist there.

       (2)     Dr. deFur will testify that the waters in Gravesend Bay in the general area of the

site are rich in marine life, according to a cursory summary in the DEIS and trawl surveys

conducted by NOAA in the NY Harbor area (NOAA, 2000). The NOAA survey was conducted

to provide data on the fish food web. Sampling in the Gravesend Bay area yielded 7 species: red

hake, striped bass, clearnose skate, American lobster, tautog, smooth dogfish and conger eel, of

juvenile and adult sizes. Stomach content analysis indicated that these species rely on dozens of

benthic and epibenthic animals, both vertebrate and invertebrate. A summary table of the NOAA

results for Gravesend Bay is attached (deFur Exhibit #PD-1). These results are important

because they indicate the extent of marine resources at risk from chemical contamination or

habitat degradation. The data support the conclusion that Gravesend Bay is Essential Fish

Habitat that requires protection from the harmful effects of dredging up contaminated sediments.

       The rich marine life in Gravesend Bay is also the faunal reservoir from which animals are

recruited into adjacent habitat, which the specific benthic area of the site represents. Weis,

however, reported finding almost nothing living in the sediments at the site. The animals in

Gravesend Bay are a continual source of eggs, larvae and migrating animals. The complete

absence of any animals in 8 of 9 samples examined by Weis is most shocking given the

abundance of animals to populate this area. Clearly, the marine sediments sampled by Weis are

too toxic to support macrofauna.

       Sediments may be too toxic to support life for several reasons, some of which were

identified by Weis. The toxic chemicals in the sediments may prove too deadly for marine life,

killing all the animals that settle as larvae or migrate in as post-larvae. Another possibility is that

there is not enough oxygen to support animals that normally live in the sediments. Conditions

that lead to depletion of oxygen are driven by excess organic material that decomposes. This

decomposition process also produces hydrogen sulfide, a highly toxic gas that causes mortality

of all marine animals. Thus, low oxygen may limit marine animals, as would hydrogen sulfide

production. These three factors, toxic chemicals, anoxia and hydrogen sulfide surely combined

at the site to prevent marine animals from inhabiting the sediments in the vicinity of the

Brooklyn MTS.

       The dredging and resuspension of contamination in the sediments will impact the water-

dependent birds residing in the immediate and general area of Gravesend Bay. The Brooklyn

Bird Club, as described in a letter by Peter Dorosh, (deFur Exhibit PD-2) estimates that 115 birds

use the area for feeding, nesting, etc. Several of these species are federally or locally listed rare

or endangered species. The toxic chemicals distributed by dredging the contaminated sediments

will enter the food web and eventually reach top predators such as bald eagles, osprey and

falcons. The chemicals from the old incinerator alone are enough to create substantial harm-

dioxins, PCB‘s, mercury, lead, cadmium, chromium, and other metals. These chemicals impair

the reproductive and developmental systems, especially the nervous system, of all exposed

animals. The toxic effects will display slowly over time as the affected systems fail to function

normally with time. In an analysis of the effects of dredging contaminated sediments from

nearby Newark Bay, it was determined that the dioxins alone would harm the fish, birds and

marine mammals in the aquatic system. The same problem exists for Gravesend Bay in


       2)      Stormwater Issues

        The FEIS states an estimated Most Probable Number (MPN) for coliform levels in

stormwater runoff. DSNY has responded to petitioners questions regarding this number by

stating ―there is no good source document that provides estimated coliform concentrations for

runoff from a solid waste operation.‖ However the laboratory tests for determining MPN are

simple and inexpensive to perform. It is unclear why there has been no attempt to determine this

value for the Southwest Brooklyn site.

        Sanitation trucks may carry items that are heavily contaminated with both human and

animal fecal material. Part 360 states that because of dust tracked in by vehicles and generated

in the tipping process, all handling areas and equipment will be washed down regularly and

hoses will be available on all levels to wash down the floors during dry periods. Also, water will

be atomized to reduce dust. Therefore, water vapor will condense on the surface and interior of

truck hoppers, where it can contact fecal contaminated material. Since trucks and truck tires will

not be washed at this facility, there is ample opportunity for the leakage of fecal contaminated

water as trucks leave the facility and travel down adjacent streets. In view of the huge increase of

trucks expected at the Southwest Brooklyn site, the potential exists for a substantial increase in

coliform contaminated run off, not only from the MTS itself, but from roadways near the site,

especially during heavy rain events. Because of the proximity of the proposed MTS to

Brooklyn‘s public swimming beaches, increased coliform levels from the MTS will likely result

in beach closings. The FEIS does not address this route of additional coliform contamination.

        Additionally, the FEIS does not address the use of Low Impact Development (or ―Green

Development‖) at the site to minimize any contributions to stormwater pollution in NYC.43

Low Impact Development is a comprehensive land planning and engineering design approach,

with a goal of maintaining and enhancing the pre-development hydrologic regime of urban and

developing watersheds.44 Such stormwater management captures rain water on roof-tops,

43 Low Impact Development Center:
44 Id.

streets, sidewalks and open spaces to prevent it from entering the sewer system.45 This is often

accomplished through urban retrofits, like green roofs, rain gardens, disconnected rain gutter

downspouts, and porous pavement.46 Capturing the water near the sources of water runoff

throughout the watershed can help to prevent Combine Sewer Overflows (―CSOs‖) in NYC,

while also providing the benefits of added green space, reduction of energy costs, and improved

air quality.47 Every year, NYC treatment facilities are forced to dump 27 billion gallons of

untreated wastewater into area creeks, rivers and bays when wet weather threatens to overwhelm

the sewer system.48 CSOs remain a threat to public health and the environment. At a minimum,

the DEC should impose LID design requirements for the proposed SW Brooklyn MTS site, to

offset stormwater pollution problems from the site.

       3)      Failure to Create a Mitigation Plan

       DSNY has stated that ―[s]ite specific analyses predict that any impacts identified are

capable of being mitigated.‖ FEIS at 25-1. 40 CFR 1508.20 lays out the requirements for the

mitigation analysis component of an FEIS, including

                       (a) Avoiding the impact altogether by not taking a
                           certain action or parts of an action.
                       (b) Minimizing impacts by limiting the degree or
                           magnitude of the action and its implementation.
                       (c) Rectifying the impact by repairing,
                           rehabilitating, or restoring the affected
                       (d) Reducing or eliminating the impact over time by
                           preservation and maintenance operations during
                           the life of the action.
                       (e) Compensating for the impact by replacing or
                           providing substitute resources or environments.

Without a mitigation plan, it is impossible for DSNY to know whether all impacts are capable of

46 Id.
47 Id.
48 Id.

being mitigated, the full extent of the cumulative impacts (may be less or more than stated based

on mitigation capabilities), increase costs to the project from mitigation projects, and potential

maintenance and enforcement issues. The Department must require a mitigation plan from

DSNY before any permit is granted.

          4)     Access to the Waterfront/The Public Trust Doctrine

          The FEIS references the City/Brooklyn Waterfront Development Plan, which extends

from the northern end of Bay Ridge to the northern shore of Coney Island at the southern end.49

The plan calls for extension of the Shore Road bicycle path into Drier-Offerman Park,

development of bicycle/pedestrian access to the waterfront, potentially via an esplanade,

enhanced access to the water‘s edge, restoration of the bulkhead at Bay Parkway, Drier-Offeman

Park be developed for recreational purposes, and that the Nellie Bly Amusement Park be

relocated to the Drier-Offerman Park.50 DSNY‘s justification for the placement of the MTS at

Bay 41st Street, despite the City/Brooklyn Waterfront Development Plan, is that ―[w]hile these

recommendations for developing the parks in such a manner have public support, there are no

definite plans for such development.‖ FEIS at 5-8. It should be noted that the parks and marinas

currently located in Gravesend Bay pre-date the incinerator and the Belt Parkway.

          Offer of Proof

         The public trust is an ancient doctrine, stemming from Roman law.51 The Institutes of

Justinian state that ―by natural law, these things are common property of all: air, running water,

the sea, and with it the shores of the sea.‖52 In medieval England this notion was picked up and

49 FEIS at 5-6.
50 FEIS at 5-8.
51 ―Applying the Public Trust Doctrine to River Protection ,‖ Jan S. Stevens. June 9, 2004
52 Id.

turned into a declaration that the shores of the sea are common to all and inalienable.53 The

concept was adopted in the United States, and has been used in many cases throughout the

country. In Marks v. Whitney, 6 Cal.3d 251 (1971), the California Supreme Court noted: ―‘The

public uses to which tidelands are subject are sufficiently flexible to encompass changing public

needs...There is a growing public recognition that one of the most important public uses of the

tidelands– a use encompassed within the tideland trust–is the preservation of those lands in their

natural state, so that they may serve as ecological units for scientific study, as open space, and as

environments which provide food and habitat for birds and marine life, and which favorably

affect the scenery and climate of the area.‘‖54

         In the historic Mono Lake decision, the California Supreme Court applied a rule previously

suggested by a number of other courts: The trust is not merely a passive doctrine, but there is an

―affirmative duty to take the public trust into account in the planning and allocation of water

resources, and to protect public trust uses whenever feasible.‖55 ―Unnecessary and unjustified

harm to trust interests‖ should be avoided. National Audubon Society v. Superior Court, 33

Cal.3d 419, 446-447 (1983), cert. denied 454 U.S. 977 (1983). See United Plainsmen v. North

Dakota Water Conservation Com’n., 247 N.W.2d 457 (N.D. 1976). 56

         In New Jersey particularly, the courts have been ready to make the public trust a ground for

mandating public access over municipally owned lands to the beaches. In Matthews v. Bay Head

Improvement. Assn., 471 A.2d 355, 364 (N.J. 1983), cert. denied, 469 U.S. 821 (1984)1 the court

observed: ―[T]o say that the public trust doctrine entitles the public to swim in the ocean and to

use the foreshore in connection therewith without assuring the public of a feasible access route

53 Id.
54 Id.
55 Id.
56 Id.

would seriously impinge on, if not effectively eliminate, the rights of the public trust doctrine.‖


         The public trust doctrine avoids the struggles over standing issues available in actions

under other statutes and doctrines. The Marks v. Whitney decision made it clear that it is

available any member of the general public, because it involves a right to which any member of

the public is entitled. Based on this doctrine of general applicability, the Department should

deny the permit and protect what little, precious coastal resources we have left in the New York


Issue 5:          The Draft Permit Conditions are Insufficient to be Protective of the Public
                  Health, Safety and Welfare.

          In the event that the Department decides to issue the requested permits, which it should

not, the Draft Permit is insufficient to protect public health, safety and welfare. The conditions

now contained in the Draft Permit must be clarified and strengthened and additional significant

conditions should be imposed.

          A.      Draft Permit Conditions
                  That Should be Strengthened

          1. Special Condition No. 36

          Special Condition No. 36 states that ―[t]here shall be no truck queuing on a public street

associated with the operation of the subject facility.‖ See Draft Permit at p.6. However, the

Draft Permit does not provide for any enforcement of this condition or any penalties for non-

compliance. Permit conditions should be imposed that specify how DSNY will prevent queuing

on public streets. The conditions should require DSNY to have a staff member stationed at the

foot of the access ramp, and provide for penalties for non-compliance, including cessation of

57 Id.
58 Id.

operations if there are too many instances of non-compliance.

       2. Special Condition No. 16

       The limited conditions in the Draft Permit do not take into account the toxic conditions

located at the site. A fully detailed plan, at the very least, of a Health and Safety Plan for

construction of the proposed site should be provided for review prior to permit approval.

       3. Special Condition No. 20

       This condition does not require DSNY to provide a Final Transfer, Transport and

Disposal Plan until 90 days prior to commencement of operations. Without this information, the

Department is simply without authority to deem the application complete and issue a permit

allowing construction.

       4. Special Condition Nos. 33 and 34

       Special Conditions Nos. 33 and 34 state that all waste ―must be removed from the subject

facility within 48 hours after receipt,‖ and all waste ―shall be containerized within 24 hours of

receipt,‖ respectively. These conditions should impose reporting obligations if conditions are

violated, and penalties for non-compliance.

       5. Special Condition No. 17

       Special Condition No. 17 deals with solid waste management-public emergency events

that notice should be required to the State Department of Health and to the community.

       6. Special Condition No. 19

           Special Condition No. 19 compliance with 6NYCRR Part 360 should be strengthened

with penalty clauses in any contract let.

       7. Special Condition No. 32

           Special Condition No. 32 deals with acceptance of mercury added consumer

products. The list of toxin added consumer products should be expanded (e.g., Cadmium).

        8. Special Condition No. 42

             Special Condition No. 42 deals with notification of extension of permit. Notice to

 public should be required.

             We reserve the right to supplement the list of Special Conditions to be strengthened

 or added.

        B.        Significant New Conditions That Should be Added

        The following new conditions should be included in the permit to assure that the

proposed waste transfer station will pose no significant adverse impacts on, or endanger public,

health, safety or welfare, as well as on the environment.

        1.        24-Hour Hotline

        Establishment and maintenance of a 24 hour hotline for the public to report nuisance

conditions or violations of permit conditions to DSNY. A requirement that complaints should be

responded to within a certain period of time, and signs alerting the public to the hotline number

must be posted.

        2.        Citizens Committee

        Establishment of a Community Oversight Committee which will communicate with the

DSNY its concerns directly and on a periodic basis, and must have timely and meaningful input

into all plans.

        3.        Fuel and Emission Controls

        All diesel fuel-powered trucks accessing the facility should be required to comply with

the standards set forth in New York City Administrative Code §§ 24-163.4, relating to the use of

ultra low sulfur diesel fuel and the best available retrofit technology to reduce particulate matter


        4.      Anti-idling Controls

      New York State and New York City laws that prohibit heavy trucks from idling more than

five consecutive minutes will not be sufficient to mitigate air quality impact. Extra precautions

must be taken, such as extending environmental monitoring and enforcement by the NY State

beyond the facility, with the City required to fund the expanded monitoring functions.

        5.      Pesticide Management Plan

        To the extent that DSNY intends to use pesticides and rodenticides, a condition should be

imposed upon DSNY to formulate a detailed pest control plan for prior EPA, DEC and

community review and approval. It is essential that every precaution be taken in that plan to

minimize the environmental and public health effects from the use of pesticides and


        6.      Mitigation Plan

        DSNY must have a mitigation plan to avoid impacts, minimize impacts, rectify impacts,

and compensate for impacts. There must be information about whether all impacts are capable

of being mitigated, the full extent of the cumulative impacts, increase costs to the project from

mitigation projects, and potential maintenance and enforcement issues.

        7.      Stormwater Management Plan

        DSNY should incorporate LID design plans for the proposed SW Brooklyn MTS site, to

offset stormwater pollution problems from the site.

        8.      Automatic Penalties for Non-Compliance

        For all conditions, substantial penalties should be imposed on a per day basis if DSNY is

not in compliance with them, and DSNY should be required to report any instances of violations,

59 - See No Spray Coalition Settlement Agreement

with penalties for failure to do so on a timely and adequate basis.


       Based upon the foregoing, petitioners respectfully request to be granted full party status

and that the issues set forth above be accepted for adjudication.

Dated: New York, New York
       January 13, 2008

                                             FOR: NY/NJ BAYKEEPER, NRPA, WAKE UP,
                                             URBAN DIVERS ESTUARY CONSERVANCY,
                                             ASSEMBLY MEMBER WILLIAM A COLTON,
                                             ESQ. and NO SPRAY COALITION

                                             Joel Kupferman, Esq.
                                             New York Environmental Law and Justice Project,
                                             351 Broadway, New York, New York 10013
                                             (212) 658-9540

      To:     Edward Buhrmaster,
              Administrative Law Judge
              New York State Department of Environmental Conservation
              Office of Hearings and Mediation Services, 1st Floor
              625 Broadway
              Albany, NY 12233-1550

              Christopher G. King, Esq.
              New York City Law Department
              100 Church Street
              New York, New York 10007-2601

              John Nehila, Esq.
              Division of Legal Affairs
              DEC Region 2
              NYS Department of Environmental Conservation
              47-40 21st Street
              Long Island City, New York 11101-5407


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