SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - X In the Matter of the Application of ASSEMBLY MEMBER MICAH Z. KELLNER, THE GRACIE POINT COMMUNITY COUNCIL, by its President, GEORGE MORIN, GEORGE MORIN, individually, RESIDENTS FOR SANE TRASH SOLUTIONS, INC., JED H. GARFIELD, 1725 YORK OWNERS CORP., GRACIE GARDENS OWNERS CORP., GREGORY COSTELLO, SUZANNE SANDERS, [others to be added]., Petitioners-Plaintiffs, For a Judgement Pursuant to CPLR Article 78 and CPLR Sections 3001 and 6301 -againstIndex No. ______________

VERIFIED PETITION AND COMPLAINT

THE DEPARTMENT OF SANITATION OF THE CITY OF NEW YORK, THE CITY OF NEW YORK, MICHAEL BLOOMBERG, as Mayor of the City of New York, THE NEW YORK CITY COUNCIL and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondents-Defendants -------------------------------------------X Petitioners-Plaintiffs, by their attorney, for their Verified Petition and Complaint herein, allege on information and belief as follows: NATURE OF CASE 1. This is a proceeding for a judgment pursuant to CPLR Article 78 of the New York

Civil Practice Law and Rules (CPLR), as well as an action for a declaratory judgment pursuant to CPLR 3001 and for injunctive relief pursuant to CPLR 6301, against the Department of Sanitation of the City of New York (DNSY), the other named City respondents and the New

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York State Department of Environmental Conservation (DEC) arising of the failures of DSNY and DEC to comply with the State Environmental Quality Review Act [Environmental Conservation Law, Article 8] (SEQRA) in making/ approving modifications to the City of New Yorks Solid Waste Management Plan. These modifications included deferring, if not terminating, the development of marine transfer facilities at West 59th Street and the Gansevoort Peninsula, thereby forcing commercial waste to be reallocated entirely to the proposed and imminent East 91st Street Marine Transfer Station (the 91st Street MTS), more than tripling the adverse impacts on the adjoining residential neighborhoods, as compared to those analyzed originally by DSNY or at any time since then. Alternatively, the petitioners assert that DSNY has failed to submit, and DEC has failed to review, modifications of the 2006 SWMP that are required under Section 3.7 of the SWMP and Part 360 of DECs rules and regulations. 2. The Petitioners seek judgment and an order pursuant to CPLR Article 78 and

CPLR Sections 3001 and 6301 for, inter alia, the following relief: a. Declaring that DSNY has failed to comply with SEQRA in modifying the SWMP (either explicitly or implicitly) without preparing a supplemental environmental impact statement addressing the impact of the modifications and without issuing a negative declaration; and in any event, declaring that DSNY has failed to adequately identify, much less take a hard look at, the adverse environmental impacts, above and beyond those identified in the original EIS and subsequent documentation, that will be imposed on the petitioners-plaintiffs and other residents surrounding the 91st Street MTS as a result of such modifications; b. Declaring that DEC failed to comply with SEQRA in approving modifications to the SWMP without having available to it a supplemental environmental impact statement or

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issuing a negative declaration; and in any case, declaring that DEC has failed to adequately consider the impacts, above and beyond those identified in the original EIS and subsequent documentation, that will be imposed on the petitioners and other residents surrounding the 91st Street MTS as a result of the approval of such modifications; c. Alternatively, declaring that DSNY has failed to comply with Section 3.7 of the SWMP and Part 360 of DECs rules and regulations, in that it has failed to submit modifications to the 2006 SWMP required in light of delays and other changes in the implementation schedule set out in the SWMP, and requiring DSNY to comply with the Section 3.7 and Part 360 and in connection therewith, to meet the requirements of SEQRA; d. Alternatively, declaring that DEC failed to comply with its own regulations in accepting a Compliance Report from DSNY in lieu of the plan modifications required under Part 360 of its own regulations; e. Enjoining DSNY and the other City respondents-defendants and their agents and assigns from proceeding with the contracting for or construction of the 91st Street MTS until such time as they have complied with SEQRA and the requirements of Section 3.7 of the SWMP and Part 360 of DECs rules and regulations; f. Invalidating the SWMP insofar as it authorizes construction of the 91st Street MTS; g. Granting the petitioners-plaintiffs their costs and expenses in this proceeding, including reasonable attorneys fees; h. Granting the petitioners-plaintiffs such further relief as this Court may deem just and proper.

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PETITIONERS-PLAINTIFFS 3. Petitioner-Plaintiff ASSEMBLY MEMBER MICAH Z. KELLNER is the New

York State Assembly Member for New York States 65th Assembly District, which lies east of Third Avenue in Manhattan and extends from 94th Street south to 59th Street. The 65th District includes the site of the 91st Street MTS and, of equal importance, the adjacent housing, parks and other recreational facilities. Elected to the Assembly in 2007, Mr. Kellner has been a staunch and outspoken opponent of the 91st Street MTS during that period and before. He lives at 84th Street and York Avenue, only two short blocks from the route that sanitation trucks and commercial carters will take to go to and from the MTS, and he regularly spends time at Asphalt Green meeting and speaking with his constituents and enjoying its recreational opportunities. Assembly Kellner will be directly and adversely affected by the illegal actions herein complained of in a manner different from that of the general public, in that, among other things, he will be exposed to the noise and pollution of the increased truck traffic that will move to and from the 91st Street MTS, including the increased number of commercial carters which has not been previously evaluated or disclosed, and also because his use and enjoyment of Asphalt Green will be sharply curtailed by the new enlarged ramp to the MTS and the coming and going of trucks at Asphalt Green. 4. Petitioner-Plaintiff GRACIE POIINT CIVIC COUNCIL (GPCC), which sues

by its President, GEORGE MORIN, is an unincorporated association of individuals, businesses and cooperative corporations, whose several thousand members/supporters live, raise their families, work, own businesses and run institutions in the Gracie Point community in the vicinity of the proposed 91st Street MTS. GPCC's mission is to protect the environment of the Gracie

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Point neighborhood and to preserve its peace, quiet and character as a tranquil urban residential community. Many of GPCCs members live within 500 feet of the MTS site or have direct views to it and many regularly use the three New York City parks that are in the immediate vicinity of the transfer station site: Asphalt Green, through which the only access ramp to the transfer station will run, Carl Shurz Park and the East River Esplanade, also known as the Bobby Wagner Walk. These members are united by a common concern that the proposed MTS would threaten the health and safety of those who live in its surrounding neighborhood and significantly impair their recreational and leisure use of the aforesaid parks. GPCC and its members will be directly and adversely affected by the illegal actions herein complained of in a manner different from that of the general public, in that, among other things, (i) they will be exposed to the noise and pollution of the increased truck traffic that will move to and from the 91st Street MTS, including the increased number of commercial carters which has not been previously evaluated or disclosed; (ii) their use and enjoyment of Asphalt Green and the East River Esplanade will be sharply curtailed and otherwise adversely affected by the new enlarged ramp to the MTS and the coming and going of trucks at Asphalt Green above the Esplanade, and (iii) they will suffer adverse visual and noise impacts by reason of the foregoing. Among other members of GPCC who are impacted by the illegal actions complained of inn a substantive and qualitative way different from any impact on the general public are petitioners-plaintiffs George Morin, Kathie Morin and ____________. 5. GPCC has standing to sue in that one or more of its members has standing to sue,

the interests it advances here are sufficiently germane to GPCCs purposes to make GPCC an appropriate representative of those interests; and the participation of each of the individual

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GPCC members is not required to assert this claim or to afford complete relief. 6. Petitioner-Plaintiff RESIDENTS FOR SANE TRASH SOLUTIONS, INC.

(RFSTS) is a New York not-for-profit corporation with tax exempt status under Section 501(c)(_) of the Internal Revenue Code. Its mission and purposes are to (1) oppose the construction and operation of the 91st MTS, (2) seek and advocate to implement rational alternative solutions for dealing with and disposing of the waste destined for that MTS, and (3) work to protect and enhance the increasingly residential character and composition of Manhattans Upper East Side in the Gracie Point area. RFSTS, which was incorporated in 2011, has more than ___ contributing members, many of whom live within two blocks of the site of the 91st Street or have direct views to it, others of whom live along the routes that sanitation trucks and commercial carters will take to the MTS the site (including the increased number of commercial carters which has not been previously evaluated or disclosed), and many of whom regularly use the City Parks at Asphalt Green, Carl Shurz Park and the East River Esplanade. Within the last year, RFSTS has brought together large numbers of residents of the Gracie Point area to oppose the location of an MTS adjacent to this residential area and has sponsored fora that have brought out as many as 500 people. RFSTS and its members will be directly and adversely affected by the illegal actions herein complained of in a manner different from that of the general public, in that, among other things, (i) they will be exposed to the noise and pollution of the increased truck traffic that will move to and from the 91st Street MTS, including the increased number of commercial carters which has not been previously evaluated or disclosed; (ii) their use and enjoyment of Asphalt Green and the East River Esplanade will be sharply curtailed and otherwise adversely affected by the new enlarged ramp to the MTS and the coming

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and going of trucks at Asphalt Green above the Esplanade, and (iii) they will suffer adverse visual and noise impacts by reason of the foregoing. Among other members of GPCC who are impacted by the illegal actions complained of inn a substantive and qualitative way different from any impact on the general public are Petitioners-Plaintiffs _____________. 7. RFSTS has standing to sue in that one or more of its members has standing to sue,

the interests it advances here are sufficiently germane to RFSTSs purposes to make RFSTS an appropriate representative of those interests; and the participation of each of the individual RFSTS members is not required to assert this claim or to afford complete relief. 8. Petitioner GEORGE MORIN is a member of the GPCC and its President. He and

his wife, KATHIE MORIN, who is also a petitioner-plaintiff and resides at 1725 York Ave in Manhattan, at the northwest corner of 90th Street and York Avenue. This is one block (200 feet) from the ramp of the 91st Street MTS, which will provide the only truck access to the MTS. They are also on the route that sanitation trucks and commercial carters with take to and from the MTS. In addition, Ms. Morin is a member of, and daily user of Asphalt Green, which will be bisected by the ramp. Pollution and noise from the 24 hour per day operation and the increased truck traffic associated with trucks dumping at the garbage station (including the increased number of commercial carters which has not been previously evaluated or disclosed) will threaten the Morins health and have a substantial negative impact on their enjoyment of their home and the nearby parks that they regularly frequent. Mr.Morin and Ms. Morin will be directly and adversely affected by the illegal actions herein complained of in a manner different from that of the general public, in that, among other things, they will be exposed to the noise and pollution of the increased truck traffic that will move to and from the 91st Street MTS, including

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the increased number of commercial carters which has not been previously evaluated or disclosed, and also because Ms. Morins enjoyment of Asphalt Green will be sharply curtailed by the new enlarged ramp to the MTS and the coming and going of trucks at Asphalt Green. 9. Petitioner JED H. GARFIELD is a member and President of RFSTS. He resides

with his wife and two children at ___________________ in Manhattan, approximately ___ blocks from the site of the proposed 91st Street MTS, and within __ blocks of the route that sanitation trucks and commercial carters will take to and from the MTS. [Describe the home and the expected impact on its value]. [Describe any use of Asphalt Green and/or the East River Esplanade]. Mr. Garfield is also Managing Partner of Leslie J. Garfield & Co., one of the East and West Sides preeminent real estate brokerage firm, and in that capacity he is very familiar with real estate value and trends in the Gracie Point area and more broadly in Manhattan. Mr. Garfield and his family will be directly and adversely affected by the illegal actions herein complained of in a manner different from that of the general public, in that, among other things, he will be exposed to the noise and pollution of the increased truck traffic that will move to and from the 91st Street MTS, including the increased number of commercial carters which has not been previously evaluated or disclosed, and also because the value of his home will be reduced significantly by the proximity of the MTS and the truck traffic it will generate. 10. 11. 12. 13. 14. Petitioner-plaintiff _______________________ Petitioner-plaintiff _______________________ Petitioner-plaintiff ________________________ Petitioner-plaintiff ________________________ Petitioner-plaintiff ________________________

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RESPONDENTS-DEFENDANTS 15. Respondent-Defendant DEPARTMENT OF SANITATION OF THE CITY OF

NEW YORK (DSNY) is a department within the government of the City, having the responsibility for, among other things, collecting and disposing of solid wastes for City residents. As currently planned, DSNY would undertake construction of the 91st Street MTS and would manage City operations at the MTS. 16. Respondent-Defendant CITY OF NEW YORK (the City) is a municipal

corporation organized under the New York General City Law. The City is also the fee owner of the site of the 91st Street MTS on the East River. 17. Respondent-Defendant MICHAEL BLOOMERG is the Mayor of the City and as

such, proposed and has pursued implementation of the Solid Waste Management Plan that includes the 91st Street MTS. Mayor Bloomberg, along with DSNY, is also responsible for the Citys conformance to the requirements of the Solid Waste Management Plan and applicable State law governing modifications of the Plan. 18. Respondent-Defendant CITY COUNCIL OF THE CITY OF NEW YORK is the

legislative arm of City government. As such, it approved the Solid Waste Management Plan that underlies this proceeding and is responsible for approving or otherwise acting on required modifications of the Plan. 19. Respondent-Defendant NEW YORK STATE DEPARTMENT OF ENVIRON-

MENTAL CONSERVATION (DEC) is an administrative agency of the State of New York charged by statute with the responsibility, by and through its Commissioner, to carry out the environmental policy of the State, including, pursuant to Environmental Conservation Law

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Article 27, the regulation of solid waste management and disposal by municipalities of the State. In the context of this proceeding, DEC approved the Solid Waste Management Plan that includes the East 91st Street MTS, and it is responsible for reviewing and make decisions on modifications to the Plan required by law. FACTUAL BACKGROUND 20. Article 27 of the New York State Environmental Conservation Law requires

municipalities, including the City, to handle their waste pursuant to a solid waste management plan, or SWMP, that must be approved by DEC. 21. Section 16-140(a) of the Citys Administrative Code requires the City Council to

approve a SWMP before it is submitted to DEC for approval. 22. Prior to 2005, the City managed waste pursuant to a SWMP that was adopted

originally in 1992 and amended in 2000. 23. According to DSNY, as of 2004, the City generated approximately 54,000 tons of

waste per day. Of this, the residential portion approximately 16,500 tons per day of residential and recyclable waste was handled by DSNY. The remainder approximately 37,500 tons per day was commercially generated and handled (as it is still handled) by private carters. The residential waste stream at the time was disposed of in one of three ways: (i) it was transported directly via DSNY collection vehicles to out-of-City transfer stations or disposal facilities; (ii) it was transported via DSNY collection vehicles to in-City, private waste transfer stations licensed by DSNY, and then transferred out of the City by private long haul trucks; or (iii) a portion (about 1,800 tons per day) was transported via DSNY collection vehicles to the Harlem River Yard located in the Bronx directly across the Harlem River from Manhattan, and subsequently

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transported out of the City by rail. These methods continue to be used at this time. 24. In October 2004, the City and DSNY unveiled a proposed new SWMP for the

management of the City's solid waste for the next 20 years. The central elements of this new SWMP were (a) the conversion of existing marine transfer stations in the outlying boroughs to larger structures capable of containerizing wastes and shipping them out by barge; (b) the development of similar facility at East 91st Street, where an inactive and much smaller MTS had operated until 1999; (c) the possible conversion of an existing MTS at West 59th Street, then used for recycling paper, into a facility to containerize commercial putrescible waste; and (d) the reactivation and reconstruction of anl MTS on the Gansevoort Peninsula on the Hudson River to handle all of Manhattans export of recyclables. The initial focus on the new SWMP was on the handling of residential waste, but the Plan also contemplated that the City would, in time, also manage and/or control the commercial waste stream, using the transfer stations for residential waste, including the 91st Street MTS, to handle and export that commercial waste stream as well. This was a critical element of the new SWMP because of complaints that the lower-income communities in the outer boroughs were being burdened with a disproportionate amount of Citygenerated waste, particularly that which was generated in Manhattan; but to the extent this was true, it related only to commercial waste, since all of Manhattans residential waste was exported to New Jersey to fuel the Essex County Resource Recovery facility. 25. The newly proposed SWMP was accompanied by a draft environmental impact

statement under the State Environmental Quality Review Act [ECL Article 8](SEQRA). This draft, later finalized as a final environmental impact statement (the SWMP EIS), purported to analyze the environmental impacts of the actions contemplated by the SWMP, including the

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impacts of rebuilding and enlarging the inactive 91st Street MTS. This included an analysis of using that MTS to handle the export of commercial waste; for this purpose, 71 trips a day by commercial carters were assigned to the 91st Street facility. For these trucks, as well as a large number of City sanitation trucks, the only access the MTS will be via a ramp that enters and exits only 100 feet from the nearest residence, requires truck routing along residential streets and cuts the Asphalt Green sports center in half. 26. Notwithstanding these realities and that the fact the 91st Street MTS was the only

marine transfer facility to be located adjacent to a dense residential community (the 2000 census showed a residential population of 13,500 living within one quarter of a mile of the 91st Street site, whereas for the other proposed MTSs, the maximum residential population was 4,500 within one mile of that site) , the SWMP EIS concluded that there would be no unacceptable adverse impacts from either its construction or its operations.. 27. The new SWMP hereinafter referred to as the 2006 SWMP was approved by

the City Council in July 2006. Among other things, it included an implementation schedule or milestones for the key elements of the Plan. Under this schedule, the four large MTSs, including East 91st Street, were to be in operation by June 30, 2011. A final decision on converting the West 59th Street MTS to a facility for the containerization and export of commercial waste was to be made by June 30, 2010; and the Gansevoort Recycling Marine Transfer Station was to be underway by 2013. Copies of relevant parts of the implementation schedule are annexed hereto as Exhibit A. 28. Recognizing some of the uncertainties inherent in the timetables, Section 3.7 of the

SWMP provided specifically as follows:

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No later than 18 months from the date of the adoption of the SWMP by the Council, the City shall report to the Council on the progress of the RFP process and any other approvals needed to use the 4 MTSs. If any of the agreements for the 4 MTSs are not finalized within four years of the adoption of the SWMP by the Council, then the City will report to the Council on the status of these facilities and will make recommendations as appropriate to address the handling of the City's residential waste through the submission to the Council of a proposed modification to the SWMP. The proposed modification may include, without limitation, a new timeline for finalizing agreements for any of the 4 MTSs or a new proposal for handling the City's residential waste, including alternative MTS sites. 29. Following its approval by the City Council, the 2006 SWMP was submitted to

DEC for its review and approval. This approval was given by letter dated October 27, 2006. In October 2009, DEC also granted a permit for the 91st Street MTS. The Citys approval of the SWMP was unsuccessfully challenged in court by some of the petitioners in this proceeding. DECs permit approval was also subject to judicial challenge, but has not been successful to date. A motion for leave to appeal to the Court of appeals remains sub judice. 30. The 91st Street MTS also requires a permit from the U.S. Army Corps of

Engineers. DSNY has applied to the Corps for that permit, but the Corps has not yet issued a decision to grant or deny it. 31. Since the 2006 SWMP was approved, the implementation schedule (milestones)

that it contained and that was approved by DEC has slipped in significant ways. To begin with, none of the four principal MTSs, including the 91st Street MTS, which were supposed to be completed by June 30, 2011, are yet in operation, and only two of them are under construction. The delays for these facilities vary from two to five years. 32. At the same time, the initiative identified in the 2006 SWMP to convert the

existing West 59th Street MTS to a facility with the capacity to export commercial putrescible

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waste has all but been abandoned. More than five years after the 2006 SWMP was approved, that MTS continues to be used solely for the export of recycled paper; and to the extent the DSNY and the City have considered using it all, it has been solely for construction debris and other nonputrescible waste. Moreover, DSNY has concluded the West 59th Street MTS must be limited to handling recyclables until the proposed Gansevoort MTS is completed. However, DSNY has acknowledged that the Gansevoort MTS cannot even be started before 2014, since that is the earliest date a new garage will be ready to accept the trucks currently parked at Gansevoort; and based on recent experience with a new DSNY garage at 59th Street, the 2014 date is likely to be pushed back several years. 33. Furthermore, the Citys legal right to use Gansevoort (which is situated in Hudson

River Park) for an MTS is contingent on a City-State agreement committing the City to contribute an unspecified amount of funding to the Park,, above and beyond its normal commitment. To date, no such agreement concluded, and as far as the petitioners are aware, no negotiations have been initiated. In addition, construction of the Gansevoort MTS will be subject to a new EIS process, with strong opposition expected from the park and local communities, but that, too, has not been started. Thus, there has effectively been no forward progress on the Gansevoort MTS since the 2006 SWMP was approved, and there is no assurance the facility will ever be built. If that is the case, the West 59th Street MTS will never be available for the export of commercial waste of any kind. 34. The consequence of the developments and realities identified above is that the 91st

Street MTS, if it is built, will almost certainly end up as the only marine transfer station in Manhattan for the expert of the boroughs commercial putrescible waste and in all likelihood for

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the export of all of Manhattans commercial waste period. Once the 91st Street MTS is built, with a daily capacity well able to handle the additional tonnage, the already-problematic use of the West 59th Street MTS for commercial waste and the huge cost of converting it to containerization can be expected to result in its retention as a recycling transfer station only. As a result, the 91st Street MTS will be left alone to handle Manhattans commercial waste. 35. The further reality underlying this outcome is that it is Manhattans commercial,

not residential, waste that is being exported to and burdening poorer neighborhoods in the outlying boroughs. And one of the primary goals of the 2006 SWMP was to redress this supposed inequity. If that goal is to be realized, Manhattans commercial waste must be handled within Manhattan; and the 91st Street MTS will be the only game in town to achieve this. 36. The SWMP FEIS, however, assumed that commercial waste would be handled at

three Manhattan MTSs East 91st Street, West 59th Street and West 135th Street, and it is on this basis that only 71 commercial truck trips a day were projected to be made to and from the 91st Street. The remaining 186 commercial truck trips a day were allocated to the two other sites. Now, with the total elimination of West 135th Street and the uncertainties surrounding West 59th Street, a reasonable worst case analysis under SEQRA has to posit that East 91st Street will end up as the destination for the additional 186 heavy truck trips each day into the facility and as the origin of the added 186 daily truck trips out of the MTS. Relevant excerpts from the 2006 SWMP are annexed hereto as Exhibit B. 37. The resulting adverse impacts to the areas immediately surrounding the 91st Street

MTS would be significant, adding 186 truck trips in each direction along local residential streets, but these impacts have never been measured or taken into account under SEQRA or otherwise.

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38.

In February and March of 2012, DSNY, through its consultants, prepared what it

described as a Technical Memorandum . . . intended to evaluate the need for a Supplemental Environmental Impact Statement (SEIS) in light of certain SWMP milestone changes [i.e., changes in the implementation schedule], the availability of new information, and changes in the guidance concerning environmental reviews, including 2010 and 2011 revisions to the CEQR Technical Manual . . . 39. Among other things, the Technical Memorandum purported to address and update

the traffic analysis for the 91st Street MTS presented in the SWMP FEIS. However, the updated analysis continued to assume that there would be only 71 trips a day by commercial truckers to and from the 91st Street facility. Relevant excerpts from the Technical Memorandum are annexed hereto as Exhibit C. In light of the complete elimination of the West 135th Street MTS from the SWMP and the uncertainty regarding the West 59th Street MTS, as described above, this assumption was without basis, untruthful and arbitrary and capricious. As a result, the Technical Memorandum failed to analyze the very substantial adverse impacts that would be imposed on the Gracie Point neighborhood and the streets used by trucks to access the 91st Street MTS and failed to comply with SEQRA in that regard. Among other things, the Technical Memorandum failed to evaluate the reasonable worst case scenario, as required by SEQRA and the City CEQR Technical Manual. As a consequence, its conclusion, endorsed by DASNY, that no SEIS was required was arbitrary, capricious and an abuse of discretion. 40. The Technical Memorandum also failed to adequately assess changes in traffic

and air quality that would impact adversely on the petitioners-plaintiffs and others in the Gracie Point neighborhood and required the preparation of an SEIS. In this regard as well, the Technical Memorandum failed to meet the requirements of SEQRA, and in relying on that

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document, DSNY violated the statute. 41. As heretofore alleged in paragraph 30 above, Section 3.7 of the SWMP required

DSNY to report to the City Council and propose modifications to the 2006 SWMP if agreements for the 4 MTSs are not finalized within four years of the adoption of the SWMP. In light of the failure to have agreements in place for the 91st Street MTS, as well as a second of the four marine transfer stations, DSNY was duty bound to propose modifications to the SWMP. Such action may have been taken in conjunction with the preparation of the Technical Memorandum, but if it has not been taken, DSNY has violated the SWMP and is required to take action now. 42. If DSNY has taken action under Section 3.7 of the SWMP, it failed to comply

with SEQRA in connection with that action in the manner described in paragraphs 39 and 40 above. 43. Section 360-15.11 of DECs Part 360 Regulations provides in part:

(b) A planning unit [here the City] must undertake a plan modification pursuant to subdivision (a) of this section if there is: * * * * * (3) a change of more than one year to any significant component of the solid waste management plan implementation schedule. * * * * * (d) The planning unit must modify the Plan pursuant to this Subpart or update the plan pursuant to the Subpart consistent with a schedule approved by the Department. 44. Several significant components of the 2006 SWMP implementation schedule have

been delayed/changed by well over a year. These include long delays in the schedule for the 91st Street MTS, a second of the four marine transfer stations and the proposed Gansevoort MTS, as well as the near abandonment of converting the West 59th Street MTS to a facility capable of

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handling commercial putrescible waste. In light of these changes, DSNY was duty bound to have submitted to DEC for approval a plan modification reflecting the changes and assessing the impacts thereof. 45. Sometime in late February or early March 2012, DSNY submitted to DEC what

it apparently described as a Compliance Report identifying the significant changes in the implementation schedule of the 2006 SWMP described above. Because the changes included change[s] of more than one year to . . . significant components of the solid waste management plan implementation schedule, this Report should have been submitted as a modification of the 2006 SWMP pursuant to the unambiguous language of Section 360-15.11(b)(3) of DECs Part 360 regulations; and that modification required compliance with SEQRA. However, DSNY did not prepare a supplemental EIS to evaluate the impacts of the changes, including the increased truck traffic to and from the 91st Street MTS, as described in paragraphs 36, 37 and 39 above, nor did it issue a negative declaration. Moreover, to the extent DSNY purported to rely on the Technical Memorandum, that document did not comply with SEQRA in the manner described in paragraphs 39 and 40 above. 46. Notwithstanding Section 360-15.11(b)(3) requiring plan modifications where

there are changes in an implementation schedule of more than one year, DEC accepted the Compliance Report as such and did not require DSNY to submit of a modification of the 2006 SWMP. This conclusion was communicated to DSNY by a letter from DECs counsel dated March 9, 2012, a copy of which is annexed to the Petition as Exhibit D. In the letter, counsel, responding to DSNYs inquiry, wrote that where changes were caused by delay, DEC did not require plan modifications provided that the new schedule does not reflect significant alterations

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to the plan that changed the proposed locations or methods of handling the planning units solid waste. 47. The consequence of the DEC interpretation and, the petitioners-plaintiffs

believe, the underlying reason for it was that in this way, DEC was able to avoid complying with SEQRA, as would have been the case with any approval of a plan modification, and correlatively, DSNY was relieved from its obligations under SEQRA. 48. In fact, as Section 360-15.11(b)(3) states, because of the change in major project

components of more than one year, DSNY was required to submit a plan modification; and in fact, although styled a Compliance Report, the document submitted to DEC was, factually and legally, a modification of the 2006 SWMP. This was an action that required DSNY to comply with SEQRA, but it failed to do so, as alleged in paragraph 47 above. 49. Similarly DECs acceptance and approval of the Compliance Report was,

legally and factually, an action approving a modification of the 2006 SWMP. In taking this action, DEC failed to comply with SEQRA, in that it did not have an SEIS or negative declaration to rely on, or if it did, the document did not meet the requirements of SEQRA, and thus DEC could not adequately assess the adverse environmental impacts described in paragraphs 36 through 40. 50. In accepting and approving the Compliance Report and not requiring DSNY to

submit a plan modification, DEC also violated its own rules and regulations, thus invalidating its determination. FIRST CAUSE OF ACTION AGAINST DSNY AND THE OTHER CITY RESPONDENTS-DEFENDANTS 51. The allegations contained in paragraphs numbered 1 through 50 are hereby

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repeated and realleged as if fully set forth herein. 52. Under Section 3.7 of the 2006 SWMP and by reason of the changes in

implementation schedules and other changes described above, DSNY was and is legally required to submit proposed modifications to the SWMP for the approval of the City Council. In proposing such modifications, DSNY was required to comply with SEQRA, which, in this case, required an evaluation of environmental impacts resulting from the changes in implementation schedules and other surrounding circumstances. If DSNY has proposed modifications, it failed to comply with SEQRA in connection therewith in that either (i) it did not prepare an SEIS or issue a negative declaration or (ii) the Technical Memorandum on which it relied or may have relied was deficient under SEQRA in the manner described in paragraphs 38 through 42 above. 53. By reason of the foregoing, the approval of the 91 st Street MTS as an element of

the SWMP must be set aside and annulled unless and until there is compliance with SEQRA. 54. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through 16 and 38 through 42 above. 55. 56. Petitioners-plaintiffs have no adequate remedy at law. Respondent-defendant DSNY and the other City respondents-defendants should

be enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until they comply with SEQRA. SECOND CAUSE OF ACTION AGAINST DSNY AND THE OTHER CITY RESPONDENTS-DEFENDANTS 57. The allegations contained in paragraphs numbered 1 through 56 are hereby

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repeated and realleged as if fully set forth herein 58. Under Section 3.7 of the 2006 SWMP and by reason of the changes in imple-

mentation schedules and other changes described above, DSNY was and is legally required to submit proposed modifications to the SWMP for the approval of the City Council. If DSNY has failed to submit proposed modifications, it has violated its non-discretionary duty under Section 3.7 and in that way has, intentionally or otherwise, avoided its obligations to comply with SEQRA. 59. By reason of the foregoing, the approval of the 91 st Street MTS as an element of

the 2006 SWMP must be set aside and annulled unless and until there is compliance with Section 3.7 and in connection therewith, compliance with SEQRA. 60. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through __ and 40 through 44 above. 61. Respondent-defendant DSNY and the other City respondents-defendants should

be enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until they comply with Section 3.7 of the 2006 SWMP and SEQRA. THIRD CAUSE OF ACTION AGAINST DSNY AND THE OTHER CITY RESPONDENTS-DEFENDANTS 62. The allegations contained in paragraphs numbered 1 through 61 are hereby

repeated and realleged as if fully set forth herein. 63. Section 360-15.11 of DECs Part 360 Regulations and by reason of the changes in

implementation schedules and other changes described above, DSNY was and is legally required

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to submit proposed modifications to the 2006 SWMP to DEC for its review and approval. In proposing such modifications, DSNY was required to comply with SEQRA, which, in this case, required an evaluation of the environmental impacts resulting from the changes in implementation schedules and other surrounding circumstances. The Compliance Report submitted by DSNY to DEC constituted a plan modification or the equivalent thereof. In submitting that Report/Plan Modification, DSNY failed to comply with SEQRA in connection therewith in that either (i) it did not prepare an SEIS or issue a negative declaration or (ii) the Technical Memorandum on which it relied or may have relied was deficient under SEQRA in the manner described in paragraphs 40 through 44 above. 64. By reason of the foregoing, the approval of the 91 st Street MTS as an element of

the 2006 SWMP must be set aside and annulled unless and until there is compliance with Section 360-15.11 of DECs Part 360 Regulations and SEQRA. 65. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through __ and 40 through 44 above. 66. Respondent-defendant DSNY and the other City respondents-defendants should

be enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until they comply with Section 360-15.11 of DECs Part 360 Regulations and SEQRA. FOURTH CAUSE OF ACTION AGAINST DSNY AND THE OTHER CITY RESPONDENTS-DEFENDANTS 67. The allegations contained in paragraphs numbered 1 through 66 are hereby

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repeated and realleged as if fully set forth herein 68. Under Section 360-15.11 of DECs Part 360 Regulations and by reason of the

changes in implementation schedules and other changes described above, DSNY was and is legally required to submit proposed modifications to the 2006 SWMP to DEC for its review and approval. Insofar as DSNY may claim that the Compliance Report was all that it was required to submit to DEC, then it has violated its non-discretionary duty under Section 36015.11 of DECs Part 360 Regulations and in that way has, intentionally or otherwise, avoided its obligations to comply with SEQRA. 69. By reason of the foregoing, the approval of the 91 st Street MTS as an element of

the SWMP must be set aside and annulled unless and until there is compliance with Section 36015.11 of DECs Part 360 Regulations and in connection therewith, compliance with SEQRA. 70. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through 16 and 38 through 42 above. 71. Respondent-defendant DSNY and the other City respondents-defendants should be

enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until they comply with Section 360-15.11 of DECs Part 360 Regulations and SEQRA. FIFTH CAUSE OF ACTION AGAINST DEC 72. The allegations contained in paragraphs numbered 1 through 61 are hereby

repeated and realleged as if fully set forth herein. 73. Under Section 360-15.11 of DECs Part 360 Regulations and by reason of the

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changes in implementation schedules and other changes described above, DSNY was and is legally required to submit proposed modifications to the 2006 SWMP to DEC for its review and approval. In turn, in approving any plan modifications to the SWMP, DEC was and is required to comply with SEQRA, which, in this case, required consideration of the environmental impacts resulting from the changes in implementation schedules and other surrounding circumstances. The Compliance Report submitted by DSNY to DEC constituted a plan modification or the equivalent thereof. In accepting and approving this Report/Plan Modification, DEC failed to comply with SEQRA in connection therewith in that either (i) it did not prepare an SEIS or have one to rely on, or (ii) the Technical Memorandum on which it relied or may have relied was deficient under SEQRA in the manner described in paragraphs 40 through 44 above. 74. By reason of the foregoing, the approval of the 91 st Street MTS as an element of

the SWMP must be set aside and annulled unless and until DEC complies with SEQRA in its review of any proposed modifications of the 2006 SWMP. 75. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DEC, DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through __ and 40 through 44 above. 76. Any approval that DEC has given for modifications of the 2006 SWMP must be

set aside for failure to comply with SEQRA, and DSNY and the other City respondentsdefendants should be enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until DEC grants an approval in compliance with SEQRA.

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SIXTH CAUSE OF ACTION AGAINST DEC 77. The allegations contained in paragraphs numbered 1 through 76 are hereby

repeated and realleged as if fully set forth herein. 78. In concluding that DSNY was not required to submit a plan modification to the

2006 SWMP and in approving DSNYs Compliance Report, DEC violated its own rules and regulations specifically, Section 360-15.11 of its Part 360 Regulations. In this way, DEC was able to avoid its obligations under SEQRA and to avoid considering the environmental impacts of the plan modifications and surrounding changed circumstances. 79. By reason of the foregoing, the approval of the Compliance Report must be set

aside and annulled unless and until DEC complies with its own rules and regulations and also complies with SEQRA in its review of any proposed modifications of the 2006 SWMP. 80. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DEC, DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through __ and 40 through 44 above. 81. Pending compliance with the law, the approval of the 91 st Street MTS as an

element of the 2006 SWMP must be set aside and annulled, and DSNY and the other City respondents-defendants should be enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until DEC approves modifications of the 2006 SWMP and complies with SEQRA. SEVENTH CAUSE OF ACTION AGAINST DEC 82. The allegations contained in paragraphs numbered 1 through 81are hereby

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repeated and realleged as if fully set forth herein. 83. In concluding that DSNY was not required to submit a plan modification to the

2006 SWMP and in approving DSNYs Compliance Report, DEC stated that this was its usual practice provided that the new schedule does not reflect significant alterations to the plan that changed the proposed locations or methods of handling the planning units solid waste. 84. As heretofore alleged, the modified 2006 SWMP implementation schedule does

include significant alternations that change the proposed locations of certain facilities namely, the virtual abandonment of the West 59th Street MTS as a location for handling commercial putrescible waste or commercial waste all and the uncertainties, including legislatively-required City-State agreement, surrounding the Gansevoort Recycling MTS, which, taken together, will lead inevitably to the East 91st Street MTS as the handling site for all of Manhattans commercial waste. These changes underscore the impropriety of DECs acceptance of the Compliance Report in lieu of the mandated plan modification and invalidate the DEC ruling that no plan modification was required in this case. 85. By reason of the foregoing, the approval of the Compliance Report must be set

aside and annulled unless and until DEC complies with its own rules and regulations and also complies with SEQRA in its review of any proposed modifications of the 2006 SWMP. 86. Some or all of the petitioners-plaintiffs are injured and damaged by such failure to

comply with SEQRA in that they will be subject to adverse environmental impacts not heretofore identified or considered by DEC, DSNY and/or the other City respondents-defendants, as more fully set for the in paragraphs 4 through __ and 40 through 44 above. 87. Pending compliance with the law, the approval of the 91 st Street MTS as an

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element of the 2006 SWMP must be set aside and annulled, and DSNY and the other City respondents-defendants should be enjoined from taking any further steps to implement the construction of the 91st Street MTS unless and until DEC approves modifications of the 2006 SWMP and complies with SEQRA. CONCLUSION WHEREFORE, plaintiff-petitioners respectfully request that this Court render a judgment and order containing the following relief: a. Declaring that DSNY has failed to comply with SEQRA in modifying the SWMP (either explicitly or implicitly) without preparing a supplemental environmental impact statement addressing the impact of the modifications and without issuing a negative declaration; and in any event, declaring that DSNY has failed to adequately identify, much less take a hard look at, the adverse environmental impacts, above and beyond those identified in the original EIS and subsequent documentation, that will be imposed on the petitioners-plaintiffs and other residents surrounding the 91st Street MTS as a result of such modifications; b. Declaring that DEC failed to comply with SEQRA in approving modifications to the SWMP without having available to it a supplemental environmental impact statement or issuing a negative declaration; and in any case, declaring that DEC has failed to adequately consider the impacts, above and beyond those identified in the original EIS and subsequent documentation, that will be imposed on the petitioners and other residents surrounding the 91st Street MTS as a result of the approval of such modifications; c. Alternatively, declaring that DSNY has failed to comply with Section 3.7 of the SWMP and Part 360 of DECs rules and regulations, in that it has failed to submit modifications

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to the 2006 SWMP required in light of delays and other changes in the implementation schedule set out in the SWMP, and requiring DSNY to comply with the Section 3.7 and Part 360 and in connection therewith, to meet the requirements of SEQRA; d. Alternatively, declaring that DEC failed to comply with its own regulations in accepting a Compliance Report from DSNY in lieu of the plan modifications required under Part 360 of its own regulations; e. Enjoining DSNY and the other City respondents-defendants and their agents and assigns from proceeding with the contracting for or construction of the 91st Street MTS until such time as they have complied with SEQRA and the requirements of Section 3.7 of the SWMP and Part 360 of DECs rules and regulations; f. Invalidating the SWMP insofar as it authorizes construction of the 91st Street MTS; g. Granting the petitioners-plaintiffs their costs and expenses in this proceeding, including reasonable attorneys fees; h. Granting the petitioners-plaintiffs such further relief as this Court may deem just and proper. Dated: New York, New York June 11, 2012 __________________________________ ALBERT K. BUTZEL Albert K. Butzel Law Offices Attorney for Petitioners-Plaintiffs 249 West 34th Street, Suite 400 New York, New York 10001 Tel: (212) 643-0375 Email: akbutzel@gmail.com

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VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK )

__________________, being duly sworn, deposes and says that he is an individual petitioner-plaintiff herein and the ____________ of petitioner plaintiff ________________, another of the petitioner-plaintiff in this proceeding; that he is united in interest with the other petitioner-plaintiffs herein; that he has read the foregoing Verified Petition-Complaint and knows the contents thereof; and that the same is true to deponents own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes them to be true;. The basis of the information stated on information and belief are the materials posted by the City of New York and the Department of Sanitation on its/their websites, statements of other petitioners-plaintiffs in this proceeding, the observations of others with knowledge of the SWMP FEIS and the 2012 Technical Memorandum, and papers and documents in the files of our attorney.

________________________

Sworn to before me this _____ day of June 2012

_______________________ NOTARY PUBLIC