Archive for the ‘Riverkeeper, Inc.’ Category

New York State Drops Appeal for NNYB Loan

Governor Cuomo’s administration dropped its appeal to secure $511 million from the Clean Water for the New NY Bridge project following the the Environmental Protection Agency’s September 16 decision.

eligibleIn his May 8, 2015, letter state to EPA Regional Administrator Judith A. Enck, state DEC Commissioner Joseph Martens confirmed mutual agreements. (1) The EPA will amends its decision, deeming $1.2 million for the Oyster Bed Restoration and $100,000 falcon nest box relocation eligible for Clean Water Funds, and

(2) “The DEC and EFC hereby withdraw their appeal of the Agency Decision and agree not to pursue further appeals or reviews, in either an administrative or judicial forum, of EPA’s determination of ineligibility, under the CWSRF, of the remaining projects subject to the Agency Decision,” Martens wrote.

“The environmental measures that are included in the New NY Bridge project will proceed as planned and we remain committed to building the new bridge in an environmentally responsible manner,” Thruway Acting Executive Director Robert L. Megna said in a statement.

ineligible“Pace Environmental Litigation Clinic and its clients are pleased that the Governor has dropped his administrative appeal,” its Supervising Attorney Daniel Estrin said.

EANY executive director Peter Iwanowicz praised the Cuomo administration’s decision to drop further appeals to use the funds. “This agreement follows the science and federal law,” Iwanowicz said.

The clinic looks forward to working with the state and its communities to ensure that the $480 million in clean water funds “will be appropriately put to use to improve New York’s water quality and restore its rivers,” Estrin said.

Called the decision “a big win for clean water in New York,” Riverkeeper President Paul Gallay said, “WWe are pleased that the Governor has dropped the appeal over the $480 million in proposed Clean Water Act loans that EPA had disallowed, and we thank the EPA for its role in fostering this result.”

“Riverkeeper will do its part to assure that these funds are now directed back to their lawful purpose: to improve water quality in New York and restore our rivers,” Gallay said.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2015

Appeal to Use Clean Water Funds and a Lawsuit to Protect Them Continue

Rebar cages near Westchester side/© Janie Rosman 2015

Rebar cages near Westchester side/© Janie Rosman 2015

While the Thruway Authority Board appeals the Environmental Protection Agency’s September 16 decision, it approved another $300,000 for legal expenses for its counsel Holland  & Knight to defend a lawsuit brought by environmental groups to challenge the state’s use of clean water funds for bridge construction.

Filed in October in State Supreme Court in Albany County by Pace Environmental Litigation Clinic, which represents the groups, the lawsuit was brought by Riverkeeper, Inc., Waterkeeper Alliance and Environmental Advocates of New York.

It names state Department of Environmental Conservation Commissioner Joseph Martens (who also chairs the facilities board) and other state leaders, and seeks “full denial of the attempted raid,” EANY Communications Director Travis Proulx said.

“The suit is important because we want to ensure the integrity of the clean water act and not constantly be fighting these types of unilateral raids,” Proulx said.

It’s important to the Thruway Authority as well: the Board voted to charge the funds to its operating budget, increasing the Maximum Amount Payable “to a new monetary cap of $450,000, and be it further,” per minutes from its March 26 meeting.

The Pace clinic’s Supervising Attorney Daniel Estrin made it clear the plaintiffs agree with the EPA’s decision that seven of the 12 projects — approximately 95 percent of the original $511 million in proposed financing — are ineligible for financing from the Clean Water State Revolving Funds (CWSRF).

In her June 2014 letter to Martens, EPA Regional Administrator Judith A. Enck requested eligibility documentation for specific bridge-related projects.

“We want to ensure that the process surrounding this decision is transparent and, given the size, scope, and seemingly unconventional approach to the use of CWSRF, that the parties involved have exercised due diligence, and carefully scrutinized the project details and considered the implications vis-à-vis the legislative purpose of the Clean Water Act,” Enck wrote.

One day after it stamped the date of receipt (June 25, 2014) on her letter, the state’s EFC decided by unanimous (5 to 0) vote to loan the Thruway Authority $511.45 million from the Clean Water State Revolving Funds (CWSRF). The following month (July), three voting members of the Public Authorities Control Board agreed to its request for half of the $511 million.

Two months later (September) EPA disallowed funding for seven of the 12 projects.

“We’re pleased that EPA has held the line with respect to the ineligibility of these projects for clean water financing, but we have a separate problem with what the state did that EPA did not raise in its September decision,” Estrin said. “In its effort to fast-track the approval process and avoid public scrutiny, the state hid the ball and deprived the public of the right to participate in the decision process guaranteed by federal and state law.”

The state’s Authorities Budget Office agreed with the groups’ process claims; its November 2014 report found the state violated the Open Meetings Law by inappropriately using executive session to discuss the project and by not discussing it in regular board meetings open to the public. The ABO further concluded the state failed to comply with federal regulations when financing was approved without required public participation.

Instead of responding to the merits of the groups’ eligibility and process arguments, the three private law firms representing various state agencies and board members filed multiple motions to dismiss.

“We’re in the process of responding to those motions,” Estrin said. That the state is spending public money to pay private law firms to defend on the case is another issue.

“They got caught with their hand in the proverbial cookie jar and continue to insist they’re entitled to the cookies. We remain confident that their continuing efforts to defend this unlawful raid will be unsuccessful,” he said.

Riverkeeper, Inc. President Paul Gallay also criticized the additional funding “when EPA has disapproved almost all of the State’s proposal and the funds in question are so desperately needed for their intended purpose — water treatment upgrades and river restoration.”

Since the state recently received “over a billion and a half (dollars) for the bridge project” from the US DOT — and it budgeted $900 million (of $1.3 billion to the Thruway Authority) for the bridge project — Gallay said it’s time to give the $500 million “into the hands of struggling municipalities for the $12.7 billion in immediate, unmet water infrastructure needs, which the state itself has acknowledged amounts to a crisis.”

“Perhaps the debacle over the CWSRF helped to highlight the need for better water and sewer infrastructure funding,” Tri-State Transportation Campaign’s Albany Legislative Advocate Nadine Lemmon said. “We agree with Environmental Advocates that this funding should become standard operating procedure in order to assure stronger and healthier downtowns.”

While the state defends the lawsuit brought by the environmental groups, it also appealed EPA’s decision to disallow most of the loans. “This is an administrative appeal and not a judicial appeal,” Estrin explained, “and a dispute decision official at EPA will review the appeal and is expected to render a written decision sometime this spring.”

Thruway Communications Director Dan Weiller declined comment.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2015

Lawsuit Challenges State’s Plan for NNYB Funding

Remember last Halloween?

New York State was celebrating a $1.6 billion loan, the largest in TIFIA (Transportation Infrastructure Finance and Innovation Act) loan request history, and key financing for its bridge project.

This year, environmental groups are asking a court to prevent the state from using federal Clean Water Act funds — neither the recently diminished loan request nor the remaining $29 million that was approved — for the Tappan Zee Bridge project or for any such project other than their intended use.

The lawsuit — filed in State Supreme Court in Albany County by Pace Law School’s Environmental Litigation Clinic, which represents the groups — names state Department of Environmental Conservation Commissioner Joseph Martens (who also chairs the facilities board) and other state leaders, and seeks “full denial of the attempted raid,” EANY Communications Director Travis Proulx said.

Governor Cuomo is not named in the documents.

The Tappan Zee project was not included in the State’s CWSRF Intended Use Plan when it was finalized in February 2014. The project was added four months later with no public notice or comment, in violation of Clean Water Act requirements spelled out in EPA regulations.

Proulx said the lawsuit seeks to deny the limited percentage of funding approved “because the state failed to follow due process and blocked public access to information and participation, which is required.”

eligible projects

Although few eligible items, an abundance of opposition.

In late June, the state’s Environmental Facilities Corporation (EFC) decided by unanimous (5 to 0) vote to loan the Thruway Authority $511.45 million from the Clean Water State Revolving Funds (CWSRF). And in July, three voting members of the Public Authorities Control Board agreed to its request for half of the $511 million.

Emphasizing that three agencies approved the loan — most of which the EPA nixed in September — EFC Director of Public Information Jon Sorensen said the money was approved “to finance those aspects of the New NY Bridge project that will implement existing plans to protect, restore and promote the Hudson River Estuary.”

Reducing project costs by up to $35 million will “help keep future bridge tolls as low as possible,” Sorensen said. “EFC intends to vigorously defend its right to finance Clean Water Act projects that benefit the Hudson River Estuary toll payers in the state.”

“The surest way to protect this vital funding source for its intended purpose is to make sure the Court has jurisdiction to enforce the Clean Water Act as necessary,” Riverkeeper, Inc. President Paul Gallay said.

At the NNYB site/© Janie Rosman 2014

EANY executive director Peter Iwanowicz claimed the future stability of the Clean Water Act was at stake because of the need to “fight to protect the (it) from executive overreach.” Given the urgent need for funding for water infrastructure, “the Cuomo administration should be working with the EPA to develop the funding plan necessary.”

Legal costs — and why the lawsuit is being handled by neither internal lawyers nor the state Attorney General’s office — are unknown. There will be a hearing in January; the administration has a few weeks left to appeal the EPA’s September 16 decision.

“The EPA will then deliver a final decision which, we expect, will uphold the original ruling,” Proulx said. “Because of the ongoing appeal, it is still possible for terribly dangerous precedence to be set should the EPA come to an alternate conclusion.”

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2014

TZC Fined $65,000 for Not Having Proper Permits

The I Lift NY crane is ready to set sections of pre-fabricated steel, 350 feet long each, from about 100 miles north at Port of Coeymans, Tappan Zee Constructors, LLC (TZC) president Darrell Waters said during Monday’s press conference.

I Lift NY arriving at its destination/© Janie Rosman 2014

I Lift NY arriving at its destination/© Janie Rosman 2014

So TZC got the required permits? I thought when I heard this, recalling the NYS DEC stopped work at the port this summer. Riverkeeper, Inc. — after observing the contractor working on a project still under review, hence no permits had been granted — contacted the agency, which halted TZC six days later and began an investigation.

Last month, I wrote about the watchdog group’s concern about environmental protocols. I requested status updates from project officials and the DEC several times during the past four weeks — including twice in the past 10 days.

The DEC’s response, sent to me late Wednesday, is in my story.

At 3:45 p.m. today, minutes after my third request, I received a statement from TZC spokesperson Carla Julian, who told me it just went out. Interesting, since a Journal News article posted early this morning told readers:

“A safe work place and a commitment to following all environmental regulations are TZC’s top priorities,” Julian said in a statement Thursday.

Little time lag there. Only some media received her statement and not others?

I was told it was sent to reporters who asked. I asked twice via email — October 1 and 7 — and then again today for an update about DEC permits and the staging area. Third time’s a charmer.

“A safe work place and a commitment to following all environmental regulations are TZC’s top priorities,” TZC spokesperson Carla Julian said via email Friday.

“Tappan Zee Constructors, LLC (TZC) has been working closely with state and federal agencies to obtain permits for constructing our staging area at the Port of Coeymans,” Julian also said, adding the contractor recently received DEC and U.S. Army Corp of Engineers permits for that site.

“Riverkeeper is aware of the DEC’s decision and will comment next week,” spokesperson Tina Posterli said this afternoon.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2014

Public Comment Period Closed re TZC Permit Applications at Upriver Staging Area

Yesterday was the deadline for public comments re the Tappan Zee Constructors, LLC (TZC) staging area upriver. Here is the DEC’s response to my recent update request. I thought the agency would amend its notice by changing the tense since today is September 19, and the deadline was yesterday. So I did.

And I edited two sentences via red that were grammatically ‘eh’ and corrected a misspelled word.

Barge near Rockland side of TZ Bridge/© Janie Rosman 2014

Barge near Rockland side of TZ Bridge/© Janie Rosman 2014

DEC staff visited the Port of Coeymans after being alerted of possible violations related to work being performed by Tappan Zee Constructors, and directed the company to cease operations immediately.  DEC continues to investigate the situation and will determine appropriate action.  DEC is continuing to review the permit applications.

Below is the notice to extend (omitted word) public comments until September 18, 2014.

Extension of Public Comment Period for the Port of Coeymans located Proposed Bridge Section Assembly Facility for the New New York/Tappan Zee Bridge Project.

Applicant:
Tappan Zee Constructors LLC
555 White Plains Road Suite 400
Tarrytown, NY 10591

Facility:
River Road, Port of Coeymans
Coeymans, NY

Application ID: 4-0124-00140/00001

Proposed bridge section assembly facility by Tappan Zee Constructors for the New NY/Tappan Zee Bridge. This proposed assembly facility to be located at the existing Port of Coeymans on the Hudson River in Albany County would accept construction materials mainly by barge and some by truck which are to then be fabricated into bridge sections that are then to be placed on barges for shipment to and installation at the NNY/TZ Bridge site in Rockland/Westchester Counties spanning the Hudson River.

Site preparation includes: 1) demolishing an existing building and constructing the bridge section fabrication facility; 2) dredging to a 12 foot depth by environmental clamshell bucket removing approximately 10,000 cubic yards from a 56,000 square feet area adjacent to the shoreline mooring area; 3) Installation of 102 steel piles 24 inch in diameter to construct 4 parallel finger trestles in shallower water outside the 32 – 34 feet deep main river channel where Sturgeon are mainly found from April to September 1.

Two 13 feet wide trestles with 7 rows of three pilings plus a barge fender spaced 30-35 feet apart are proposed to extend 250 feet into the river and to be used by straddle cranes to offload materials from barges. Two 13 feet wide trestles with 4 rows of three pilings plus a barge fender spaced 30 – 35 feet apart are proposed to extend 125 feet into the river for a slider assembly to load completed bridge sections onto barges. The dredging work is proposed to be commenced no earlier than late September and be completed within approximately two weeks. The pile driving work is proposed to commence no earlier than late September and be completed within approximately 7 weeks.

The proposed assembly facility is scheduled to be operational before the end of 2014. Double walled silt curtains are to be used to enclose the dredging and pile driving areas. Vibratory pile driving will be used. The 102 pilings will be removed at the end of the project in approximately 36 months. Dredge spoil dewatering is to be controlled within a dewatering basin for clean Class A/B material and a barge decant and treatment system for Class C material with discharge limits set for both dewatering methods plus the clean material (Class A/B) is to be re-used and contaminated material (Class C) sent to a solid waste facility.

Permits/regulatory approvals required include: a New York State Department of Environmental Conservation (NYS DEC) Protection of Waters Permit, 401 Water Quality Certification, Stormwater SPDES General Permit and Solid Waste Beneficial Use Determination for the re-use of clean dredge spoils.

Project documents can be found at: http://www.tappanzeeconstructors.com/pages/poc/

The public comment period was extended until (omitted word) September 18, 2014.

Contact: William J. Clarke, Regional Permit Administrator, NYS DEC – Region 4 Office, 1130 North Westcott Road, Schenectady, NY 12306, Phone: (518) 357-2069, E-mail: DEP.R4@dec.ny.gov.

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2014

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