South Bronx Coalition for Clean Air v. Conroy
| Decision Date | 08 September 1998 |
| Docket Number | No. 98 Civ. 4404(AGS).,98 Civ. 4404(AGS). |
| Citation | 20 F.Supp.2d 565 |
| Parties | THE SOUTH BRONX COALITION FOR CLEAN AIR, INC. d/b/a South Bronx Clean Air Coalition, Business Labor and Community Coalition, Inc., Urban Environmental Alliance, Inc., Cherry Tree Association, Inc. and New York City Environmental Justice Alliance, Plaintiffs, v. E. Virgil CONROY as Chairman and President of the Metropolitan Transportation Authority and of the New York City Transit Authority and Manhattan Bronx Surface Transit Operating Authority, and of the Long Island Railroad, Hon. George Pataki, as Governor of the State of New York, Joseph H. Boardman as Commissioner of the New York State Department of Transportation, the New York State Urban Development Corp., John Cahill as Commissioner, New York State Department of Environmental Conservation, Hon Carol M. Browner as administrator of the United States Environmental Protection Agency, Hon. Rodney Slater as United States Secretary of Transportation, Harlem River Yard Ventures, Inc. the New York Post Company, Inc. and USA Waste, Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
John F. McHugh, Elisa Barnes, McHugh & Sherman, New York City, for Plaintiffs.
Richard G. Leland, Jeffrey L. Braun, Karen Leo, Rosenman & Colin LLP, New York City, Clifford Thau, Squadron, Ellenoff, Plesent & Sheinfeld, LLP, New York City, David Paget, Lemuel M. Srolovic, Sive, Paget & Riesel, P.C., New York City, Frank L. Amoroso, Nixon Hargrave Devans & Doyle LLP, Garden City, NY, Norman Spiegel, Asst. Atty. General of State of New York, New York City, Ramon E. Ryes, Jr., Asst. U.S. Atty., U.S. Attorney's Office, New York City, Anthony P. Semancik, Metropolitan Transportation Authority, Deputy General Counsel, New York City, for Defendants.
This case is before the Court on plaintiffs' motion for a preliminary injunction and defendants' cross-motions to dismiss the complaint.
The plaintiffs are:
(1) The South Bronx Coalition for Clean Air, Inc. ("South Bronx Coalition"), a not-for profit corporation owned by residents of the South Bronx;
(2) The Urban Environmental Alliance, a public interest environmental organization;
(3) The Business Labor Community Coalition, a public interest environmental organization;
(4) The Cherry Tree Association, Inc., a public interest environmental organization;
(5) The New York City Environmental Justice Alliance, tax-exempt New York corporation organized "to combat environmental racism through advocacy on behalf of low-income neighborhoods and communities of color."
The defendants are:
(1) New York Post Holdings, Inc. (the "Post");
(2) Harlem River Yard Ventures, Inc. ("HRYV");
(3) Metropolitan Transportation Authority, the New York City Transit Authority, the Manhattan and Bronx Surface Transit Operating Authority, the Long Island Railroad Company, and E. Virgil Conway (collectively "MTA");
(4) Empire State Urban Development Corporation, d/b/a Empire State Development Corporation ("ESDC");
(5) Carol M. Browner, as Administrator of the United States Environmental Protection Agency and Rodney Slater, as Secretary of the United States Department of Transportation (collectively the "Federal defendants");
(6) George Pataki, as Governor of the State of New York, Joseph H. Boardman, as Commissioner of the New York State Department of Transportation, and John Cahill, as Commissioner of the New York State Department of Environmental Conservation (collectively the " "); and
(7) USA Waste Services of NYC, Inc. ("USA Waste").
This case arises out of a plan to develop the Harlem River Yard ("the Yard"), a 96-acre facility located in the South Bronx in New York City. The Yard formerly served as a rail yard for the New Haven Railroad, but fell into disuse following the merger of the New Haven and Penn Central railroads in 1972. In 1982, the Yard was acquired by the New York State Department of Transportation ("DOT"), which sought to develop it as a regional rail freight transportation facility. By 1988, the State DOT had abandoned such plans and commissioned a private study to analyze alternatives for development of the Yard. That study recommended private development of the Yard as an "intermodal park," combining rail freight transportation with commercially leased warehousing and ancillary activities, including solid waste transfer facilities. In 1991, after issuing a request for proposals, DOT leased the Yard to defendant HRYV, a private developer, for development of a multi-use industrial facility. In 1993, HRYV submitted a final land use plan to DOT for development of the Yard. That plan provided for, among other things, an intermodal freight terminal comprising 28 acres, a 3,000 ton per day truck to rail solid waste transfer facility on five acres, a paper recycling plant and substantial warehousing. The plan was the subject of a Final Environmental Impact Statement ("FEIS") prepared by an outside environmental consultant for HRYV that was submitted to DOT in December 1993 and approved in May 1994. The FEIS concluded that trucks and other sources of air emissions associated with all the uses set forth in HRYV's land use plan would not have any significant adverse effect on air quality in the Bronx.1
In 1996, the Yard was the subject of a Supplemental Final Environmental Impact Statement ("SFEIS") that was prepared for a proposed Bronx Community Paper Co., "de-inking facility" that was to occupy approximately 36 acres in the eastern portion of the Harlem River Yard. The SFEIS concluded that the proposed facility would not have a significant negative environmental impact on the area surrounding the Yard.2
On September 15, 1997, the New York State Department of Environmental Conservation ("DEC") issued defendant USA Waste a permit to construct and operate a 3,000 ton per day solid waste transfer station to be located within the Harlem River Yard site. Construction of the facility began in June 1998 and is expected to be completed within 12 months. In conjunction with the issuance of the permit, DEC issued a "Findings Statement" concluding that although the overall "footprint area" of the USA Waste facility would be larger than contemplated by the 1993 FEIS, this difference would "not result in significant adverse environmental impacts, and will have some additional benefits ..." (See Affidavit of Anthony M. Riccio Jr. dated August 5, 1998 ("Riccio Aff."), Ex. D at 2). DEC also found that the conclusion of the 1993 FEIS that the waste facility would have no adverse impact on air quality in the Bronx was still valid. (Id.)
Located adjacent to the Yard is the Walnut Depot, a two-story, 338,000 square foot building located at 900 East 132nd Street in the South Bronx. The building was originally constructed as a warehouse in 1931 and used by F.W. Woolworth Company. In 1979, MTA's operating agency, the New York City Transit Authority ("NYCTA") purchased the building for $1.5 million. The funds for this transaction were provided by the Federal Transit Administration ("FTA"), which, under the auspices of the United States Department of Transportation ("DOT"), makes grants to assist states and local agencies in financing the planning, development, construction and improvement of mass transportation facilities. See 49 U.S.C. § 5301(f). In 1981, FTA provided NYCTA with an additional $13 million to convert the property into a bus garage, material storage facility and bus training school. MTA no longer receives any federal funds and was depleted of its last federal operating funds in 1997.
In November 1997, ESDC, a New York public authority and public benefit corporation created by the New York State Legislature as the "Urban Development Corporation" for the purpose of generating economic development projects, offered to purchase the Walnut Depot. MTA had already determined that the Walnut Depot was functionally and operationally obsolete as a bus depot and had decided to replace it by reconstructing the Coliseum Bus Depot, located in the central Bronx at 177th Street and the intersection of Bronx River Parkway and the Cross Bronx Expressway. When it opens, the Coliseum Depot will be a state-of-the-art facility that will accommodate 220 compressed natural gas buses, and all bus routes formerly assigned to Walnut Depot will be reassigned to the Coliseum Depot. In response to ESDC's offer, MTA decided to accelerate the closure of the Walnut Depot and to use the proceeds from the sale of the Walnut Depot towards the Coliseum Project. The construction contract for the Coliseum Depot was awarded in December 1996 and construction is expected to be completed in approximately two years. Until then, bus routes formerly assigned to the Walnut Depot will be relocated to other bus depots.
Once title to the Walnut Depot property is transferred, ESDC will lease the property to HRYV, which will sublease it, together with an adjacent 8.3 acre parcel of land on the Yard (currently used as a car tow pound by the New York City Police Department) to the Post. The Post will use the combined 16.4 acre site to develop a new state of the art color printing plant. The Post claims that it has been losing millions of dollars annually and needs the new printing facility in order to remain competitive. The Post also claims that if it is not allowed to build the plant in the Bronx, it will have to relocate outside the city, thus depriving Bronx residents of the employment opportunities generated by the Post facility. Bronx Borough President Fernando Ferrer has submitted two affidavits supporting the Post project on the grounds that it will bring substantial economic benefits to the Bronx.
By notice dated March 2, 1998, ESDC indicated that it would serve as "lead agency" for purposes of the environmental review required by the State...
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