A Study in Environmental Racism: ?New and Signi?cant? Information Regarding Title VI Claim 03R-04-R2 by The Partnership for Onondaga Creek Syracuse, New York Submitted: September, 2006 Mia Acknowledgements Abbreviations List of TablesfMaps I. Executive Summary II. The 1998 Amended Consent Judgment The Execution of the Amended Consent Judgment and its CSO Long- Term Control Plan . A. Bankrupt Public Participation Process in the CSO LTCP B. Removal of CSO Abatement Alternatives 1. ACJ Milestone Manipulation 2. Flawed Stonnwater Modeling 3. CSO Design Criteria Manipulation 4. Self-serving Cost Estimating 5. Self-serving Midland RTF Alternative Site Review C. IV. Diversity of the Syracuse Communities along the Combined Sewer Over?ow Long Term Control Plan A. 2000 Census Data by Census Tract Data Overview B. Maps of Syracuse Communities 1. Census Tracts of Syracuse 2. CSO Project Map C. Community Pro?les l. Northside/ Franklin Square and Maltbie Street Hiawatha Boulevard Sedgwick Farm and Schiller Park Teall Brook 2. Erie Boulevard 3. Southside I Midland Avenue 4. Downtown Armory Square 5. Westside Harbor Brook D. Conclusion A Study in Environmental Racism: The Farmership for Onondaga Creek ?New and Signi?cant? Information ngacuse, New York Regarding Title VI Claim September, 2006 V. Projects A. Syracuse?s venewwr Contents Disparity in the Execution of the Combined Sewer Over?Ow Abatement Northside CSO Projects Franklin Street Floatable Control Facility Maltbie Street Floatable Control Facility Hiawatha Boulevard Regional Treatment Facility Teall Avenue Floatable Control Facility Onondaga Creek Floatable Control Facility Skimmer Trash Boat Summary B. Repaired Erie Boulevard Storage System C. Syracuse?s Sub-basin Southside CSO Projects for the Midland Avenue 1. Searching for a Better CSO Abatement Technology 999?? f. 2. Phase Pushing for an alternative search The 2002 negotiations Judge Thomas McAvoy?s decision The county?s unilateral decision The POC works to ?nd $20 million more for the storage option The Title VI claim - the Midland Pipeline 3. The Cost Scandal and Call for an Audit 4. Summary D. Syracuse?s Sub-basin. E. Syracuse?s Sub-basin VI. Adverse Impacts A. Northside B. Southside C. Downtown D. Westside E. Summary Downtown CSO Projects for the Clinton Street Westside CSO Projects for the Harbor Brook A Study in Environmental Racism: ?New and Signi?cant? Information Regarding Title VI Claim 03R-04-R2 The Partnership for Onondaga Creek Syracuse, New York September, 2006 Contents VII. Mitigation by Sub-basin A. Northside B. Southside The Need for and the Promise of Mitigation . The Mitigation Package County Withdraws Mitigation Response to County?s Mitigation Withdrawal Southsiders Ask County about Phase Pipeline, its Adverse Impacts and Mitigation 6. Community Organizing on Pipeline, Community DevelOpment and Jobs 7. Conclusion C. Downtown D. Westside E. Conclusion newer The State Pollutant Discharge Elimination System (SPDES) Permit Process on the CSO Long-Term Control Plan Contacts Addendum A. City of Syracuse v. Onondaga County, 04-0718-cv (2nd Circuit 2006) B. US EPA, Office of the Inspector General Report: Needs to Conduct Environmental Justice Reviews of its Programs, Policies, and Activities," September 18, 2006 A Study in Envirorunental Racism: 3 The Partnership for Onondaga Creek ?New and. Signi?cant? Information Syracuse, New York Regarding Title VI Claim 03R-04-R2 September, 2006 Acknowledgments The Farmership for Onondaga Creek (POC), founded in 2000, is a non?pro?t, independent, unincorporated, grassroots citizens? group. The POC is dedicated to environmental justice and to the water quality of Syracuse?s waterways, especially Onondaga Creek. The Creek runs through Onondaga County and the City of Syracuse and empties into Onondaga Lake, long the victim of municipal and corporate pollution Onondaga Lake and the Creek are sacred waterways of the indigenous Onondaga Nation of the Haudenoshaunee Confederacy. This Study is the result of a nine-month research eifort to supplement the 2004 Title VI claim 03R-04-R2. We submit it to the USEPA as ?new and signi?cant? infonnation. The principal POC researchers and writers are Aggie Lane and Tarki Heath. Environmental lawyer Thane oyal provided technical support. The POC drew on its own extensive archives and those of Atlantic States Legal Foundation, along with election results provided by POC and NAACP member, Lionel Logan. Chapter VI, ?Adverse Impacts? and Chapter VII, ?Mitigation,? were scrutinized by POC Members: Vernell Bentley, Bruce Block, Gary Bonaparte, Lula Donald, Lionel Logan, Zac Moore, Louise Poindexter, Techiera Price, Sabrina Rautio, Joanne Stevens and Elvira Stowart. k) We are particularly indebted to our document checker Kate Simmer and our copy editor Ed Kinane. The law office of Joe Heath, general counsel for Onondaga Nation, provided logistical support. Study in Environmental Racism: The Partnership for Onondaga Creek ?New and Signi?cant? Information Syracuse, New York Regarding Title VI Claim 03R-04-R2 September, 2006 Abbreviations ACE ACJ ASLF BOD BBL BMP C13 CDM c?J CH CSO CWA DBP EBSS EA EBA EID EIS ENRCCI FCF fen FOIL FONSI I-IBIS HBIWS LLP LTCP MA MCP METRO MG MS ?133? NEPA NWC NYSDEC OCDWEP 8: OCR OBG OLIP OLP POC ?New and Signi?cant? Army Corps of Engineers (also USAGE) Arnended Consent Judgment Atlantic States Legal Foundation Biochemical oxygen demand Blasland Bouch Lee Best Management Practice Sodium Hypochlorite Camp, Dresser and McKeeICticS colony forming units Clough?Harbor ?it Associates Combined Sewer Over?ow Clean Water Act Disinfection By-Product Erie Boulevard Storage System Environmental Assessment Environmental Engineering Associates Environmental Impact Docmnent Environmental Impact Statement Engineering News Record Construction Cost Index Floatable Control Facility Fecal coliform unit Freedom of Information Law Finding ofNo Signi?cant Impact Harbor Brook Floalable Control Facility Harbor Brook Interceptor Server Harbor Brook ln-Water System limited liability partnership Long-Term Control Plan Mofi?a 8t Associates Municipal Compliance Plan Onondaga Comty Metropolitan Wastewater Treatment Plant Million gallons - Main Interceptor Sewer million gallons! year National Environmental Policy Act Northern Watertek Corporation New York State Department of Conservation Onondaga County Department of Water Environment Protection Operations and maintenance O?ce of Civil Rights O?Brien and Gear Onondaga Lake Improvement Plan Onondaga Lake Partnership The Partnership for Onondaga Creek September, 2006 Abbreviations PW RFP RTF SEQR SPDES ss STS SUN SUPILF SW THM TDML USEPA VE WE ACT Present Worth Request for Proposals Regional Sewage Treatment Facility State Environmental Quality Review State Pollution Discharge Elimination System suspended solids Subsurface Treatment System Syracuse United Neighbors Syracuse University Public Interest Law Firm Steams and Wheler Trihalomethane Total Maximum Daily Loads United States Environmental Protection Agency Value Engineering West Harlem Environmental Action ?New and Signi?cant? September, 2006 km) kg} List of Tables Table 1: Major CSO Abatement Projects over Two Million Dollars II, 5. Table 2: Annual CSO Volumes by (380 Facility 4. Table 3: Annual CSO Volumes by City Section 5. Table 4: Reported Modeling Errors 5. Table 5: Discrepancies between Modeled and Measured CSO Volumes 6. Table 6: Midland Sewage Plant Cost Estimates 13. Table 7: The Southside?s Midland Sewage Plant Estimated Costs 15. Table 8: Downtown Westside Cost Estimates 16. Table 9: Lowaalling Midland?s Sewage Plant 18. Table 10: POC Alternative Site Scoring 22. Table I 1: 2000 Census Data by Census Tract IV, 2. Table -12: Onondaga County?s Water Environment Protection Department Law Charges related to the Lake Improvement Project, -- VII, 5. Table 13: Midland CSO project workforce - VII, 8. List of Graphs Fecal Coliform Bacteria in Onondaga Creek, 2003 Ambient Monitoring Program Rosults V, 5 Fecal Colifonn Bacteria in Ley Creek, 2003 Ambient Monitoring Program Results V, 8 List of Maps Onondaga County Legislative Districts - Exhibit 1, Footnote 1 Census Tracts of Syracuse Syracuse Neighborhoods - IV, 3 050 Project Map with Syracuse Neighborhoods (overlay) IV, 4 Major Collector Facilities and Over?ow Points, Moffa Associates and Blasland, Bouck &Lee, April 12, 1989 - Exhibit VI, Footnote A Study in Environmental Racism: ?New and Signi?cant? Information Regarding Title VI Claim The Partnership for Onondaga Creek Syracuse, New York September, 2006 I. Executive Summary 1 September, 2006 The Partnership for Onondaga Creek (POC) submits Study in Environmental Racism: ?New and Signi?cant? Information regarding Title VI Claim as one of several ongoing submissions to the US. Environmental Protection Agency's Of?ce of Civil Rights. This rigorously documented case study exposes environmental and institutional racism. Such racism does not necessarily occur with the conscious or willful intent to cause harm to a select group; it is the playing out of disparity that already exists in the local power structure. This diSparity leads to the privileging of certain groups at the expense of others. This power structure seeks to silence the less privileged, perpetuating a decades?long pattern of social disinvestment and community discmpowerment as has occurred repeatedly on Syracuse?s Southside. The "New and Signi?cant" information doctunents how Onondaga County and its cartel of engineering firms protect the white, privileged areas of Syracuse?s Northside the home and political base of the county executive. It demonstrates how such privilege fosters disparity by stigmatizing certain sectors with unwelcome sewage projects and by causing disproportionate disruption and unfair dislocation on Syracuse?s Southside, and to a lesser degree, in Downtown and on the Westside. This study documents how the county and New York State Department of Environmental Conservation?s execution of the 1998 Amended Consent Judgment (ACJ) and its Combined Sewer Over?ow (CSO) Long-Tenn Control Plan (LTCP) unfairly burdens Syracuse Southside?s low-income A?ican-American community and Syracuse?s other Title VI communities (Downtown and the Westside). The study begins with an analytic chronology of the struggle for water quality and environmental justice in the execution of the CSO LTCP for Syracuse. The chronology shows the protracted, but largely unsuccessful, attempts by Southsiders and others, to get a combined sewage abatement technology (underground storage) that would have been socially and environmentally friendly in place of Onondaga County's unhealthy, ineffective and costly technology (above ground swirlers with chlorine disinfection). Chapter II, ?The 1998 Amended Consent Judgment,? explains the legal driver behind the 050 projects. It documents the cozy relationship between the county government and its favored engineering ?rms who gamer lucrative pro?ts from the taxpayer??nanced projects. Chapter ?The Execution of the Amended Consent Judgment and its CSO Long-Term Control Plan,? shows how the county and its engineering ?rms circumvent mandated public participation in the choice of appropriate CSO abatement technology. It describes how -- through manipulating ACJ milestones, stormwater modeling, CSO design criteria, and cost estimates - the county and its engineers not only ?justify? their preferred sewage plants over better alternatives, but protect select communities ?om undesirable sewage projects. It also describes how, by manipulating the Midland ?New and Signi?cant? 2 Avenue alternative site review, they impose a sewage plant on a residential low-income, African-American neighborhood. Chapter IV, "Diversity of Syracuse?s Combined Sewer Over?ow Communities,? provides demographic (ethnicity and income) pro?les and irnages of the Northside, Southside, Downtown and Westside, detailing their differences. For example, contrary to the county's assertion that Westside is an average Syracuse neighborhood, Chapter IV shows that the site for one of the county?s sewage plants is next to a struggling elementary school in a poor Latino neighborhood. Chapter V, "Disparity in the Execution of the Combined Sewer Over?ow Abatement Proj ects," examines how, in contrast to the other city sections, the Northside doesn?t ?capture? its own combined sewage. The county spares the Northside by building CSO projects there, which are designed to minimize unsightliness and disruption. As "Disparity" documents, the Northside?s sewage release into Onondaga Creek shifts the Northside capture responsibilities onto the Southside, Downtown and the Westside resulting in disproportionate burdens for Syracuse?s poorer communities of color. This shift forces these other city sectors to ful?ll the ACJ mandate to capture for treatment, 85% of the combined sewage systemwide. Chaplet VI, "Adverse Impacts," describes the signi?Cant burdens of these sewage projects which the Northside escapes, but which other neighborhoods especially the Southside are forced to live with. It also describes the county's fraudulent low-balling of cost estimates for its favored technology, which additionally burdens low-income communities with a regressive sewer tax. Even worse, such estimates disqualify a healthier and less costly alternative undergron storage). Chapter VII, "Mitigation," shows how the county has withdrawn three million dollars in promised mitigation for the Midland Avenue CSO project. This effectively punishes the Southside for the advocacy and insistence on open community participation in C30 technology selection. Such ?hardballing? has a chilling effect on other . neighborhoods negotiating with the county over CSO abatement technology: now, for fear of reprisal, neighborhoods don?t dare argue with the county about its preferred plants. As we attempt to conclude this document, we ?nd that ?new and signi?cant? information keeps coming our way; therefore, we have added two pieces of very recent information as an addendum. First, we include the Circuit?s September 2]st decision on Midland: (City of Syracuse v. Onondaga County, 04-0718-cv). It is still unclear whether the county can condemn the land without city approval. Yet the county continues as if it owns the land. It is still also uncertain if the ?prior public use? doctrine would prevent this condemnation. The 2ntd Circuit did not rule on these issues, but has sent the questions onto the New York State Court of Appeals. The land that the county continues to occupy and build on may well not be its land at all. 3 September, 2006 We also have included the Of?ce of Inspector General?s (01G) report on negligence in environmental justice reviews (speci?cally, Executive Order 12898). We wholeheartedly concur with the OIG report and encourage EPA to follow its starting with a renewed investigation of enviromnental injustice at Midland. An accurate and fair framework for conducting an environmental assessment at Midland simply was not followed. If it had been, it would have expose not only the disproportionater adverse health and environmental impacts on this low income, minority community, but also the disparity in the county?s treatment of the communities spared and those affected by the Through our Title VI claim, the Partnership for Onondaga Creek seeks: restoration of the Southside mitigation process, followed by just compensation for inequitable treatment. It is important that there is a public reversal of the county?s disempowering tactics. 0 equity in the distribution of combined sewage burdens among Syracuse neighborhoods: the Northside must capture its own sewage and stop it into Onondaga Creek. This would lessen the burden on the Southside, Downtown and the Westside. a re-evaluation of the proposed Southside Midland Avenue Phase project, . Downtown?s Clinton Street project and the Westside?s Harbor Brook projects, KL) premised on the Norths?ide capturing its combined sewage. investigation of the modeling, sizing and cost?estimating practices of the county?s engineering ?rms. This report exposes institutional racism in Onondaga County. The POC seeks to undo some of the environmental and social harm done by the county?s 050 projects and to underline the importance of environmental justice for ALL Syracuse?s communities. ?New and Signi?cant? 4 II. The 1998 Amended Consent Judgment September, 2006 Amended Consent Judgment (ACJ) 1988: Atlantic States Legal Foundation (ASLF), a citizen advocacy group based in Syracuse, sues Onondaga County for violating the 1972 Federal Clean Water Act for discharges from the metropolitan wastewater treatment plant (METRO) and horn Syracuse?s 63 combined sewer over?ows ((3505). These discharge into Onondaga Lake and its tributaries: Onondaga Creek, Harbor Brook and Ley Creek. Combined with the sewage discharges, the Onondaga Lake?s industrial pollution makes it a super?md site and one of the most polluted lakes in the country. The New York State Department of Environmental Conservation (NYSDEC) joins suit. 1989: Federal court issues a consent order mandating Onondaga County to develop a Municipal Compliance Plan (MCP) to1 bring the County?s ef?uent discharges from Metro and the (3303 into compliance with the State?s e?luent limitations and water quality standards, and implement such plan. 1989 1993: The county picks engineering consulting ?rma Mo??a Associates (MA) and Blasland, Bouclr Lee (BBL) to prepare a C80 facilities plan. In 1991 MA and BBL issue The Combined Sewer Over?ow Facilities Plan which updates O?Brien Gore?s 1979 Combined Sewer Over?ow Abatement Program. Both ASLF and the NYSDEC ?nd the 1991 plan environmentally lacking: it relies on swirled chlorination technology for CSO abatement rather than on storage and sewer separation. November, 1994: a Republican George Pataki electedto succeed Democrat Mario Cuomo as Govemor of New York. 0 Three national companies based in Onondaga County O?Brien 8: Gere (OBG), Blasland, Bouck Lee (BBL) and Steams Whaler (SW) form Environmental Engineering Associates (BEA), a limited liability partnership. (In 1995 according to Syracuse?s daily Post-Standard, these three ?rms make a list of the nation?s top 500 engineering ?rmsthe top 100.2) 1995 - January, 1998: The NYSDEC leadership changes and Governor Pataki calls for talks between the three parties: ASLF, the state and colmty. Pataki promises state aid to help ?md the Onondaga Lake Cleanup. The NYSDEC shifts its support from ASLF to Republican?controlled Onondaga County. After years of negotiating, ASLF reluctantly 1 Amended Consent Judgment, United States District Comt for the Northern District of New York; Atlantic States Legal Foundation, State of New York and John P. Cahill, as commissioner of the New York State Department of Environmental Conservation Onondaga County Department of Drainage and Sanitation and Onondaga County, New York (88-CV-0066) Judge McAvoy, January 20, 1993, 2. . 2 Damn, Elizabeth. ?Engineering Your Way to the Top 500." Post-Standard, Syracuse, New York, May, 6, 1995. ?New and Si gni?cant? agrees to the Amended Consent Judgment (AC1) and its 080 long-Term Control Plan ((380 LTCP). Of the $380 million ACJ-mandated Lake Cleanup plan, the county expects to get $260 million ?-om state and federal sources; the local ?Consolidated Sanitary District? will fund the remainder-.3 The public is not aware how this and its (:30 abatement projects will a??ect their neighborhoods, in some cases disrupting communal ties through eviction or other means of displafement. The ACJ has two conditions that allow changes to the mandated projects: 1. Better, proven and less costly technology can replace a mandated technology. 2. The City of Syracuse can ask for studies that examine the cost-effectiveness of increasing sewer separation as part of a (330 abatement project. [Note: Much of Syracuse?s combined sewer system is over 100 years old and consists of clay pipe. Besides undersized and crumbling combined sewer lines, 25% of the Syracuse?s Southside sewers (Midland sub-basin) have an infiltration problem where, during dry weather, a signi?cant volume of groundwater goes to METRO for treatments] Over the years, the ?proven and less costly? conditions become contrived hurdles that no ?rm with a competing technology can overcome. To the detriment of the city?s displaced or disrupted, the county?s favorite ?rms cash in. As the ACJ sees ?daylight? and the public responds, it is clear that the county doesn?t welcome such response. Since 1999, the public and the city have tried to use the above two ACJ conditions to change the proposed CSO abatement technology, but the county and its engineering consultants are deeply invested in sadder/chlorination, a costly and socially disruptive technology. The Partnership for Onondaga Creek (POC), an independent Syracuse-based grass- roots environmentnl advocacy group with no paid staff, believes that there is a powerful, undeoeratie link between county government and its select engineering ?rms. In. 1991 the lilennldAnaeatoms6 reports on no-bid county contracts ?owing to Peter Mo??a. Besides being the president of Motfa Associates (MA), Moffa is the college pal of Jack Kranik, Onondaga County sewage and drainage commissioner. 3 Onondaga County Lake Improvement Website; Consent judgment summary; Financial projections and funding, August, 1999. Amended Consent Judgment, ibid, [chapter II, footnote section 41, 27 23 at Appendix B, section 9. 5 ?Phase II Evaluation of Sewer In?ltration and In?ow for the Midland Service Area,? O?Brien Gate, 1975. '5 Weiner, Mark and Cancun-e, Don. ?County contracts ?ow to friends.? .Sfyracase Herald?American, Syracuse, New York, March 31,1991. September, 2006 In its 1998 company portfolio, EEA acknowledges its long-term connection to the i county: 7 To assist in the Lake Improvement Project, the knowledge, expertise, and commitment of local engineering and science resources have been combined into one perniership: anironrnental Engineering Associates, LLP (BEA). The BEA partners - Blasland, Bouck Lee, Inc.; O?Brien dc Gere Engineers, Inc.; and Steams c5: Wheler, LLP provide local government the knowledge of over 50 years of service, the experience of having designed the original plantfupgrade of all Onondaga County?s wastewater treatment plants, and local resources totaling over 500. While the BBA partners offer seamless services on ACJ-related projects, they continue to o?'er the County and other clients independent services. There is a revolving door between government and OBG. In 1999 sewage and drainage commissioner Jack Kranik dies, and is succeeded by Richard Blender, a vice-president of OBG. In 2000 Pataki?s appointed State University of New York?s (SUNY) board names president Cornelius Murphy to head College of Environmental Sciences and Forestry (ESF). POC allies at ESP campus report that Murphy supports the technology. This 0136 connection deters Syracuse?s most valuable environmental resource, SUNY ESF, from playing a critical, objective role in the Lake Cleanup effort. These important government connections and past county projects give BEA a big advantage beeause it controls the connections and the sewer system information needed J) for (330 design projects. Over the years, the POC hears complaints from competing engineering companies about county engineering consultants not being willing to share sewer system information. EBA, along with MA (currently a unit of Brown Caldwell, but for purposes of this report, referred to as MA) and Camp, Dresser and McKeelC&S (CDM), divide up among themselves almost all the C80 abatement projects (see Table on next page). The county and its engineering ?rms block alternative Lake Cleanup proposals from Ogden Yorkshire Water Company, Northern Watertek Corporation, CI-IZM Hill, EnSource and ASLF in conjunction with SUNY ESF. Even though there is public interest in these alternatives, they are choked in their cradle. The POC sees the county?s engineers? ?evenuhanded? evaluation of ?80 abatement solutions as a facade. No outside idea or company can compete. According to the US Department of Justice?s Antitrust Primers, old boy networks and large engineering ?rms with parallel services can be indicators of possible anti-trust violation. In the case of the 7 ?Teaming Up to Improve Onondaga Lake," in PorgroIio, O?Brien a Gere, Summer 1993. [Not exhibited] 3 ?Price Fixing, Big Rigging and Market Allocation Schemes: What They Are and What to look for,? 1 1573mm, accessed July 26, 2005. 4 ?New and Signi?cant? k, ti, Table 1 Major CSO Abatement Projects over Two Million Dollars gyg' coring Firm Docgment Title Location . MA, BBL 1991 Combined Sewer Over?ow Facilities Plan . Syracuse BEA 1994 Hiawatha Combined Sewer Over?ow Regional Treatment Facilities Design Report Northside MA, BBL, SW, CDM 1996 Municipal Compliance Plan Syracuse CDM 1998 Preliminary VE Report Franklin Floatable Control Facility and Planning Concept Northside EEA 1998 Contract Documents for ?oatable Control Facilities Franan Street Northside EEA 1999 Midland Avenue RTF and Conveyances Facilities Plan Southside CDM 1999 Midland Avenue RTF Alternative Site'Evaluation Overview Document Southside OBG 2000 Design of Sewer System to Separate Southside Barton Loguidice 2000 Engineering Design Report for Eric Boulevard Upgrade Between Downtown Northside MA, EEA, CDM 2001 Onondaga County CSO Program Evaluation Report Syracuse EBA 2002 Clinton Street CSO Abatement Facilities Plan Downtown MA 2002 Harbor Brook CSO Abatement Facilities Plan Westside EEA 2003 Midland Avenue RTF and Conveyanoes Facilities Plan Amendment Southside MA 2004 Harbor Brook CSO Abatement Facilities Plan Westside EEA 2005 Clinton Street CSO Abatement Project, Facilities Plan Downtown Q1 EEA: Environmental Engineering Associate, LLP EEA O?Brien 8: Gere, (OBG), Blasland, Bouck Lee (BBL) and Steams Wheler (SW) MA: Mo??a Associates (Currently, a unit of Brown Caldwell) CDM: Camp, Dresser and Joint Venture ?New and Signi?cant? 5 . September, 2006 Lake Cleanup (now estimated to be worth $550 million), lack of competition hurts the taxpayer and any company seeking ?some of the action.? -. i Conclusion The ASLF 1988 lawsuit against Onondaga Cormty is a bold and necessary action. The federal court is correct to issue a consent order, and until 1995, the NYSDEC along with ASLF provides oversight and diligence reviewing the county?s water quality improvement proposals. In 1995, however, the political landscape changes. After Pataki appoints his people to lead the NYSDEC, the agency accepts less than optimal water quality solutions from Onondaga County?s engineering consulting ?rms. Both Albany and Washington promise millions to fund the cleanup projects. In 1998 a worn-out ASLF reluctantly signs the Amended Consent Judgment. From that point on, the NYSDEC and the county use the to impose upon the city of Syracuse a pus-selected, inappropriate, out-dated, and costly CSO Long-Term Control Plan -- one that deliberately spares Syracuse?s Northside and burdens the Southside, Downtown and the Westside communities with large Regional Treatment Facilties (RTFs), aka. sewage plants. The next chapter The Execution of the and its CSO Long-Term ControlT Plan -- will show that EEA, MA and CDM ignore public input and manipulate the modeling and cost-estimating of C80 LTCP projects. This cartel assures that no other technology replaces its pet technology sewage plants. ?New and Signi?cant? The Execution of the Amended Consent Judgment and its CSO Long-Term Control Plan . A. Bankrupt Public Participation Process in the CSO LTCP B. Removal of CSO Abatement Alternatives {x l. ACJ Milestone Manipulation 2. Flawed Stonnwater Modeling 3. CSO Design Criteria Manipulation 4. Self-serving Cost Estimating 5. Self?serving Midland RTF Alternative Site Review C. Summary 1 September, 2006 A. Bankrupt Public Participation Process in the C80 LTCP The Partnership for Onondaga Creek (POO) has long been troubled by a disturbing pattern. The county and its consultants view any public involvement in selecting combined sewer over?ow (CSO) technology as a hostile act Nonetheless, according to the CSO policy, such involvement is a public right:1 2. Public Participation In developing its long-term CSO control plan, the pennittee will employ a public participation process that actively involves the a?ectetl public in the decision-making to select the long- term CSO controls. The affected public includes rate payers, industrial users of the sewer system, persons who reside ?rom the (380s, persons who use and enjoy these waters, and any other interested persons. [emphasis added] The county boasts about the numerous CEO-related public meetings it has held. None of these meetings, however, ever lead to alternatives to the county-proposed CSO projects. Actually, the county punishes any serious resistance to its 080 proposals by removing mitigation (see chapter WI Mtigoriou: Southside). The chilling Southside mitigation removal is not lost on the other city sections (Downtown and the Westside) now being presented with the county?s CSO Facilities Plans. These residents are afraid to Speak out against the county?s preferred technology. a} EPA Combined Sewer Over?ow Control Policy, 59 Federal Register 18638, 9. ?New and Signi?cant? 2 B. Removal of C80 Abatement Alternatives In 1998, the county unveils the ?rst large (330 project, the Midland Avenue Regional Treatment Facility (RTF), aka. the Midland sewage plant. There is an immediate public outcry and resistance grows to this preposed swirlen'chlorination technology. Over the years the call intensi?es to replace this technology with one that is less socially disruptive, less stigmatizing and less environmentally damaging technology intensi?es. Public concern also focuses on healthurelated issues because the proposed chlorine disinfection will combine with sewage to form a number of cancerous chlorination by-products. In response to the outcry and concerns, the county and its engineering consultants manipulate milestones, the project?s modeling, and its cost estimates. The manipulation e?'ectively removes all viable contenders to the county engineers" preferred technology. Depending on the alternative, the comity?s counter-punch is either: a) there are deadlines (AC1 milestones) and therefore not enough time to explore alternatives, or b) there aren?t any other technologies that are ACT-compliant and as cheap as the swirler/chlorination technology. The POC and the NYSDEC are aware that to pretect New York City?s waters, NYC has a C30 abatement plan centered around CSO off-line storage tanks. Its Flushing Meadows tank is the biggest in the US. Given that the City of Syracuse has a CSO problem that is miniscule compared to NYC, it is strange that the county and its consulting engineers (EBA, MA and CDM) work so hard to disqualify off-line tanks. 1. Milestone Manipulation The ACJ sets up a major and minor milestone schedule for all Lake Cleanup projects with penalties for missing these deadlines (AC1 Appendices A, B, and C). For the last eight years the county has manipulated these milestones to its advantage, pulling milestones up to shortwcircuit the public process and getting the NYSDEC to push them back whenever the county might otherwise miss a milestone. An October 2, 2000 ACJ majorfminor milestone compliance date listing shows the NYSDEC amended 28 ACT minor milestones. The number of such milesttme changes suggests that if there is good reason, the NYSDEC will move a milestone. However, when the community demands a search for alternatives, the county invokes ACJ milestones as an insurmountable hurdle. In April 2000 Syracuse?s then-mayor Roy Bernardi writes the state attorney general requesting a milestone change so alternatives to the Midland sewage plant can he researched.2 The state attorney general denies the request stating that the sewage plant has been well-researched. 3 2 Roy A. Bernardi, then-mayor of Syracuse, re: Onondaga Lake Cleanup Project, Proposed Midland Avenue Regional Treatment Facility, Letter to the New York State Attorney Genneral Eliot Spitzer, April 27, 2000. 3 Of?ce ofthe State Aunmey General, re: Amended Consent Judgment, Midland Avenue Regional Treatment Facility, letter to Mayor Roy Bemardi, June 20, 2000. 3 September, 2006 Even though the NYSDEC accommodates most county requests to change milestones, the county holds the specter of ?nes and rising sewer rates over the public?s head. In chapter V. Disparity of Combined Sewer Over?ow Abatement Projects: Sj/rocnse ?3 So nthside, ?Searching for a Better CSO Abamment Technology,? we will document this milestone ?game.? 2. Flawed Stormwater Modeling Moffa Associates (MA) sizes the C80 abatement projects through stormwater modeling. But before sizing the C80 facilities, MA estimates the severity of the CSO problem for each section of the city. obscures the problem or makes big modeling ?mistakes,? Syracuse?s communities are burdened inequitably: some, like the Northside, get small unobtrusive facilities while others get large, stigmatizing, disruptive ones. Obscuring C80 Volumes: l'vIA?s CSO Volume Capture Table -- Existing Conditions (Pre- Abaiernent), listing by ACJ-mandated CSO facilities, blurs the C30 volume problem. Table 2 below replicates a portion of CSO Volume table. The Northside facilities have four non? contiguous lines, the Southside one, the Westside one and Downtown one. This format makes it hard to compare the disaggregated Northside volumes to those of the other city sections. Table 2 Annual CSO Volumes by C50 Facility" (million gallonsfyear -- mgy) Facility [do section added} CSO Volume Hiawatha RTF, pipeline [Northside] 24 Harbor Brook RTFs, FCFs, pipelines [Westsia?e] 139 Erie Boulevard Storage System [between Norihside and Downtown] 289 Tea]! AveF CF {Northsidd 7 Midland RTF, pipelines [Southside] 200 Clinton RTF, pipelines [Downtown] 225 Franklin [Northside] 83 Malbie FCF [Northside] 21 [*Franldin FCF Butternut FCF Burnet Harbor Brook cso Abatement Facilities Plan, Brown and Caldwell (formerly, Motto an Associates), December 29, 2004, Table 1, column 2. ?New and Signi?cant? 4 But if you combine the four Northside 080 volume totals (see Table 3), it becomes clear that the Northside contributes signi?cantly to Syracuse?s CSO problem, the same as the Westside - 134 to 139 mgy. Despite this, before the A01 is signed, the county and its engineering consultants push for a tiny RTF and small, almost invisible, Northside ?oatable control facilities (F CF) to abate Northside CSOs. Currently for the Westside, the county and its consulting engineers propose two sewage plants with their respective conveyances and ?ve FCFs. Table 3 Annual CSO Volumes by City Section (million gallonsfyear - mgy) Syracuse City Section CSO Volume Northside: 1 RTF 4 FCFs 134 between Northside and Donmtown: Erie Storage System 289 Scuthside: 1 RTF, conveyances 200 Donntonm: RTF, conveyances 225 Westside: 2 RTF, conveyances, 5 FCFs 139 Modeling Errors: Modeling shapes the selection of a viable CSO technology and the facility size. In 2002, MA reports three signi?cant modeling errors, each impacting the Southside, Donmtown, and the Westside. Table 4 highlights admitted modeling errors. Table 4 Reported Modeling Errors Annual CSO Volumes by City Section (million gallons/year logy) Modeled (330 Volume City Section 192995 2004 change Southside 322 200 458% Downtown 142 225 +58% Westside I72 139 40% 5 Midland Avenue Regional Treatment Facility and Conveyances, Facilities Plan Amendment, Environmental Engineering Associates, Appendix 1: Midland Avenue Regional Treatment Facility and Conveyances, Facilities Plan Update with February 1999 Facilities Plan, June 2003, Table 4a, column 2. 5 September, 2006 Unresolved discrepancies: Additionally, from the county?s quarterly performance reports for ?on-line? CSO facilities, measured volumes for captured and discharged combined sewage don?t agree with predictions for the EBSS (Erie Boulevard Storage System) and for the Northside?s Franklin FCF. Although there is real data to calibrate the stormwater model, MA hasn?t changed these annual CSO volumes in its 2005 CSO Volume Capture Table. Table 5 below points out existing discrepancies between model predictions and measured total captured and discharged data ?'om the county?s 2004 quarterly performance reports for the Operating facilities. Table 5 Discrepancies between Modeled and Measured CSO Volumes (million gallonslyear mgy) Modeled CSO Volume Measured CSO Volume"t 1999? 2004 Captured? total discrepancy Northside 134 134 23 111 or 537 between 0 and 426 EBSS 289 289 115 0 174 ?Measured CSO Volume? is the total of ?Captured? and ?Discharged? CSO volumes. These volumes comes from 2004 CSO facility-quarterly performance reports. . x. ?Captured? is the combined sewage that is held until the storm event is over. At the storm?s end, the facility is emptied into the interceptor sewer, then sent to the main wastewater treatment plant (METRO) for full treatment, before being discharged into Onondaga Lake. ?Discharged? is the CSO volumo, untreated or partially treated, that the CSO facility dumps into Onondaga Lake tributaries: Onondaga Creek, Harbor Brook or Ley Creek. By 200] most of the Northside projects are built. Once a facility is ?on line,? the county issues quarterly facility performance reports. The Onondaga County Ambient Monitoring Program 2004 Annual Report, baited on facility performance reports, shows that MA may have underestimated Northside?s Franklin FCF discharges by more than 600%. modeling estimate for the Franklin FCF is 83 mgy. But the report says that in 2004 the Butternut FCF (one of the Franklin FCFs) discharged about 295mgy into Onondaga Creek? The Butternut FCF represents 58% of the discharge from the Franklin FCF, making the Franklin FCF 2004 possible creek discharge 508 not 83 mgy. Since the facility?s ?owmeter only measures what is going through the FCF ?5 net bags and not what is going into the creek directly, we will never know ?5 Ibid. 7 Onondaga Lake Ambient Monitoring Program, 2004 Annual Report, Onondaga County Deparhneut Water - . Environment Protection, October 2005, Table 2-3: Summary of CSO facility reports, 2004. - - - ?New and Signi?cant? 6 a..de what the true polluting impact of the Franklin FCF is on Onondaga Creek This facility?s outfall is not near the creek. The facility discharges ?rst back to the Main Interceptor Sewer (MIS) and then, from a controlling weir in the MIS, discharges some portion of that 508 mgy. How bad is the pollution coming from the Northside? Is it only 134 or is it 560 1nng .or somewhere in- between? The Northside may well have the biggest CSO volume of any city section. If MA is off by only 100% rather than 600, the Franklin 83 mgy would become 166, and the Northside?s CSO volume will be 218 mgy --larger than the Westside, Southside and about the same as Downtown. Modeling errors mask reality. By low-balling CSO volumes for the Northside, the county attempts to justify disparity between the Northside and the Title VI communities on the Southside, in Downtown and on the Westside. The EBSS performance reports challenge 289 mgy 030 volume estimate (see Table 5). MA says that on average the E335 will over?ow six times a year, discharging 69 mgy into Onondaga Creek. The 2003, 2004 and 2005 performance reports say the EBSS has never over?owed, and in 2004, a wet year, it stores a (330 volume of 115 mgys, only about half of prediction of 220 mgy. But MA doesn?t admit to n?stakes until challenged. For the Sonthside CSO volumes, the county and BEA use 1999 322 mgy model estinmte to justify placing a football-field size sewage plant in a low-income, African-American neighborhood. Not until the 2002 negotiation between the county, the city, ASLF, the Onondaga Nation and the POC about this controversial sewage plant does MA admit to the large modeling error, reducing the original 322 Ingy estimate to 200. At a November 2005 public information meeting on the Downtown CSO project, the POC asks the county to explain the Downtown?s 58% C50 volume increase. In light of the Erie Boulevard Storage system (EBSS) Memorandum in the May 200] 080 Program Evaluation Report and the April 5, 2001 Erie Boulevard Storage System Upgrades, decrease should be seen not an increase. Here is the exchange between the POC and the county:9 Explain how adding the upstream EBSS connection increased the Clinton CSO volunte [Downtown] from 142 mgto 225 mg? [County? With regard to the Clinton [Downtown] and EBSS connection, prior to 2002 the Clinton model did not include portions of the CEO drainage area (080 designations) in the upper reaches of the Fayette Trunk sewer (which is interconnected with the E338 system). Dry- weather ?ow and smaller storm events are directed down the Fayette Trunk Sewer and during larger storms combined sewage is discharged to the EBSS. These areas contribute additional ?ow (83 mg) to the Clinton RTF via the Fayette Trunk Sewer. 3 Quarterly petfonnance Report for the Erie Boulevard Storage System (EBSS), Onondaga County Department Water Environment Protection, October 2005. 9 Responsiveness Snmmary?n the Clinton CSO Abatement Facilities Plan, Public Meeting and Public Comment Period, Onondaga County Department of Water Environment Protection, January 2006, 10. 7 September, 2006 The POC questions this increase for die Downtown area because: 0 through oversizing a sub-basin?s CSO volume it is easier for the county, EBA, MA and CDM to justify their preferred sewage plants over other technologies, especially off-line storage tanks and sewer separation. I in the case of the Downtown (Clinton) sub-basin, the Fayette Street trunk sewer used to have a problem with its EBSS connection (080]) due to EBSS back?ow and surging. In the 2001 contract documents for the Erie Boulevard Storage System Upgrades these problems were contracted to be corrected.m - during 2004, an abnormally wet year, the EBSS did not store anywhere near its modeled carrying capacity of 220 mgy. It only stored 115 mgy. From the E338 performance reports there appears to be capacity to hold these smaller storms that MA says are affecting the Fayette Street trunk sewer and that are supposedly increasing the Downtown 030 burden by 58%, from 142 mgy to 225 mgy. 0 when the P00 points out that there is probably capacity now in the E335, given that the EBSS has not over?owed in three years and is only storing half of its modeled capacity, the county denies that the E333 has the capacity for these smaller storms. In the same Responsiveness Summary, here is the county?s non- answer to a POC question on the under-utilization: '1 The County investigated the option of storing additional 080 flows lit-1n the Fayette trunk sewer in the EBSS. Based on total volumes of 080 and stonnwater in the there is not adequate capacity to store the additional 030 volume item the Fayette St. Trunk. After the POC notes the low storage in the E353, the county proceeds to explain how the performance reports were not showing the stormwater discharges, just the CSO discharges. After taking that into account, the EBSS is still only half- utilized (again in 2004, a wet-year, it stored just 1 15 mgy). The POC believes that there is storage in the EBSS for these smaller storms, but that the county and its consulting engineers deny anything that does not ?t into their swirler agenda. 3. C80 Design Criteria Manipulation After determining the magnitude of the CSOproblem for each drainage basin, MA sizes each CSO abatement facility. Facility size is crucial to the cost-effectiveness analysis which compares competing proposals. Cost-effectiveness analysis includes both construction and operation and maintenance costs. Through model inputs and other post-analysis ?rules,? Erie Boulevard sour-ego norm Upgrades, Contract Documents, Onondaga County, April 5, 2001, 153 32-1, 1593 5-1. - . - Responsiveness Summary for the Climan C30 Abatement ecit'tties Plan, ibid, [chapter footnote p10. ?New and Significant" MA ensures certain results. The Partnership for Onondaga Creek has studied the major CSO facility plans listed in chapter II. Table 1. The POC believes that MA uses certain inputs, ?rules,? or assumptions that skew the results favoring technology over less and less costly off-line underground storage tanks. The mandates only three things: 12 0 elimination or the capture for treatment of no less than 85% by volume of the combined sewage collected in the combined sewer system during precipitation events on a system- wide annual average basis, 0 elimination or minimization of ?oating substances in Onondaga Lake attributed to the Comrty?s 0803, and I achievement of water quality standards for bacteria for all portions of Onondaga Lake that are classi?ed as ?Class pursuant to 6 Part 895. [emphasis added] Nothing else. The ?85% by volume. . system-wide averaging? means that the county can treat city sections di??erently. It need not disrupt ?select? communities, even though their 050 volume may be as much or greater than another?s. This unequal treatment will be ?rlly expiored later in chapter V. Disparity. Moreover, in the Appendir B, HI: CSO Project Descripr?ions,13 the design criteria for sizing varies from CSO project to C80 project. Some are designed for 90'? percentile storms, some for one-year storms. Some 030 projects don?t capture anything but ?oatables or trash, and dump their bacterial loads into Onondaga Lake?s tributaries. There is nothing in the ACJ that speci?es back-to?back storms sizing, a pre-set tie-watering time, or even a bacteria limit for achieving water quality in Onondaga Lake. But MA uses these ?miles? to remove storage options as viable alternatives to its preferred swirlerfehlorination sewage plants. In the remainder of section 3, we analyze these ?rules.? Back-to-back storms: Since 1991, MA dismisses off-line storage tanks without disinfection by using its back-to-back storm ?requirement? for sizing. The back-to-back storm requirement isn?t an rule; it comes out of and 1991 Combined Sewer Over?ow Facilities Plan.? That plan advocates for nine swirler facilities in Syracuse. After 1998, this ?rule? is presented to the community as a requirement. In its 2004 Harbor Brook CSO Abatement Facilities Plan?, MA states: Off-line storage consists of tankage constructed to store flows diverted from the collection system. There are two approaches to sizing the volums of off-line storage, using the volume of a speci?c design storm, and using long-term simulations to address the impacts of back-to-back storm events. A disadvantage of sizing o?-line storage according to the design?storm volume is '2 Amended Consent Judgment, ibid, {chapter n, footnote 1 1. '3 Amended Consent Judgment, ibid, [chapter 11, foomote Appendix B. Combined Sewer Over?ow Fociih?ies Plan, Ma?a Associates and Blasland, Bouck 3r. Lee, February 1991, 5413,4435. '5 Harbor Brook cs0 Abatement Facilities Plan, Brown Caldwell (fermerly, Moffa Associates) December 2004,p3-13. . 9 September, 2006 the potential inability of the facility to capture a follow-on storm. A follow-on storm could occur - before the tank is drained, resulting in an over?ow condition and leading to water quality 5 violations during that second storm. The use of the long-term approach results in a larger storage volume that better addresses the back-to-back situation. With this approach, MA sizes an 8.2 million gallon (mg) storage tank for Harbor Brook?s upper drainage 12min although this area?s one-year storm is only 3.4 mg.16 tank size is almost 2.5 ?rms the upper basin and even more than Harbor Brook?s entire basin of 7.8 mg. Because Harbor Brook?s one-year storm peak ?owrate is only 241 cubic feet per second (cfs), an off-line storage tank makes perfect sense here. By oversizing this option, MA states that the Harbor Brook Interceptor Sewer cannot de-water this 8.2 mg tank in time. Oversizing ensures violating the de-watering ?rule.? The ?rule? states that elf-line tanks must be emptied to their respective interceptor sewer or sewer trunk line in no less than 48 hours after the storm event (see ?48-hour Clo-watering? below). back-to-back mle isn?t consistent ?om project to project. For the Erie Boulevard Storage System modeling, MA didn?t apply the back-to-baclc storm rule. Instead MA models EBSS for a 90?? percentile storm. For EBSS, MA predicts six over?ows discharging a total of 69 million gallons a year of untreated combined sewage. This double standard convinces the P00 that the county?s engineering consultants set ?rules? one way for some projects and ignore them for others. 48-hour tie-watering: In the 2004 Harbor Brook C80 Abatement Facilities Plan?, MA . disquali?es the viable off-line storage option for Harbor Brook?s upper basin, saying; k. Initial evaluation of the I-IBIS [Harbor Brook Interceptor Sewer] capacity has determined that the would not have the capacity to dewater the volume associated with the Upper Basin regional storage within a 43-hour period following the storm event. In the 2005 Clinton Street CSO Abatement Project Facilities Plan, EEA disquali?es a viable storage tank claiming: ?3 .. .as indicated by the required storage volume data previously presented, a full service storage facility of 2i mg exceeds the ability of the existing MIS [Main Interceptor Sewer] to accept the pump back of the stored (380 for this facility over a 48-hour period. The POC does not ?nd a 48-hour de-watering rule for sewage facilities within regulations. The POC further investigates EPA regulations and only ?nds de-watering references in the 1998 EPA-?mded, Storage/Segmentation Facilities for Controi ofSt?orm and Combined Sewer Over?ow: Design Manual. Here, the P00 finds two interesting passages: '9 weapon. Ibid. ?8 Clinton Street CSO Abatement Project Facilities Plan, Environmental Engineering Associates, Febmaly 2005, 5-5. '9 Perdek, Joyce Field, Richard; and Liao, Shih-Long, Sioroger?Segmentotion Facilities for Control ofSronn and Combined Sewer Over?ow: Design Marmot, May 1993, 7-12 3: 7-25. ?New and Signi?cant" 10 These studies showed that for 1,500 gallon (5,678 L) samples of ?rst ?ush stormwater stored in covered but vented storage, hydrogen sul?de generation peaked 24 hours after collection but concentrations had not reached a distinguishable level (0.3 ppm-volumetric), even after 48 hours. the operation and maintenance requirements and procedures should be developed from the operational plan and not from industry wide standards since there are none. [emphasis added] Combined with the back-to?back storm ?requirement,? the 48-hour de-watering ?rule? is a power?il and convenient way to disqualify viable storage alternatives, and appears to be used arbitrarily. Bacteria limit for water quality standards: MA sets a ?rule? based on its own ?interpretation? of the water quality standards for modeling bacteria violations. In its 2000 memorandum, Bacteria Mode! Update for Onondaga Lake?, MA writes: Bacteria standards are derived ?'om federal, state, and local .The dif?culty with these standards is de?ning what represents a wet-weather violation. Presently, the State does not have wet-wea?ier standards associated with fecal coliform bacteria. For the purposes of this evaluation, a bacteria violation is de?ned as when Lake concentrations exceed 200 cful 100 ml on and instantaneous basis. [sic] The county?s 2003 Onondaga Creek monitoring data show bacteria spikes that vary ?oor 300 to 10,000 chi/100 ml. The POC questions whether 200 cfu! 100ml is a realistic limit for the model because, when the lake Cleanup Projects are completed, water quality regarding bacteria will be measured over a 5-day period and not instantaneously once. Additionally, all bacteria loads released into our waterways on the Northside help to oversize storage options for the Southside, Downtown and the Westside. These bacterial loads don?t affect the RTFs because MA assumes the disinfection system will kill all bacteria. 99.9% bacteria kill: One of the most misleading inputs that MA feeds into models for tire sizing of the facilities is a 99.9% bacteria kill? for a one-year storm for its preferred RTF. Given that in the 2004 Harbor Brook Facilities Plan, MA lists the removal rates for the proposed swirler technology at 35% for Total Suspended Solids (TSS) and at 15% for Biological Oxygen Demand (BOD), the 99.9% kill is overblown and inaccurate. Furthermore, data evaluation from other swirler facilities and EPA documentation do not support bacteria kill factor. 2? Goebel, Howard and Davis, Daniel. re: Onondaga Lake Bacteria Model, Memorandum to Robert J. Kukenburger (CDM), November 15, 2000, 4. 2' l'bid. 2?1 Harbor Brook cso Abatement Facilities Plan, ibid, {chapter footnote 15], Table 3.1. 11 September, 2006 In the October 15, 2002 county~sponsored Lake Improvement Project O?ce CSO Disinfection . Workshop, a slide shows data from an Augusta, Maine facility. 23 If we apply the 200 cfulr 100 ml bacteria limit, then in 1999 that facility had three bacteria violations, in 2000 it had two more, and in 2001 it had another. In the 2003 EPA study EPAI6001R-02JO77, sodium hypochlorite (a form of chlorine), as well as crime, ultra-violet light and chlorine dioxide, are listed as effective disinfectants. In the Water Qualin Relationsth section on sodium hypochlorite (C12), the study states: 2? Generally, disinfection performance is dependent upon wastewater characteristics such as SS, ammonia and BOD. Many constituents found in wastewater limit disinfection by either exerting a Cl; demand or shielding bacteria ?'om contact with C12. Suspended solids limit the exposure of embedded bacteria by shielding them from contact with the disinfectant. Given the data from functioning swirler plants and the swirler?s rated inef?ciency for removing SS and BOD, a model inth of 99.9% kill for swirlers is incorrect. It biases the model favoring RTFs over off-line storage tanks. Using error-prone modeling, MA unfairly evaluates CSO alternatives to swirlerichlorination RTFs. Only an independent investigation of the model, its inputs and assumptions, will dispel suspicion. The evidence points to MA ?stacking the deck? in favor of technology. Without investigation, MA will continue to use model tampering to eliminate competitive alternatives, especially o?lline underground storage tanks. 4. Self-serving Cost Estimating Besides biased modeling, the P00 questions cost estimating. For the Southside, Downtown and the Westside, EBA claims the sewage plant is the cheapest option. But in May 2006, the county reports that the Southside facility (the Midland sewage plant) will cost more than twice the 2003 estimate it sent to NYSDEC for approval. Because the cost estimates keep inexplicably changing, the POC has no confidence in them. Using the Syracuse Post-Standard and the county Onondaga Lake Improvement Proj ect?s reports, we will now examine the construction cost estimate ?uctuations. Construction cost estimating game: Over the years, the construction cost estimates for the Midland Avenue sewage plant ?uctuate first they are high, then quite low, then high and now ?through the roof (see Table 6). 23 Lake Improvement Project O?ice CSO Disinfection Workshop slide summary, Onondaga County Department of Water Environment Protection, October 15, 2002, 14. 2? Wojtenlco, Izabela and Stineon, Mary. CSO Dirirg?ectfon Pilot Stun)?: Spring Creek CSO Storage ocih'rjy Upgrade November 2003, 3 1. ?New and Signi?cant? 12 Table 6 Midland Sewage Plant Cost Estimates (from Syracuse Post-mm Articles) Jan. 08, 2000 $75,001 Mar. 22, 2002 Aug.02, 2002 353.904 May 20, 2004 ovor May 2006 The POC believes that the county and its engineering consultants arbitrarily change the estimates to suit their purpose. The public only learns about such changes through the local, daily In January 2000, we are told of a ?$75 million pipeline and sewage treatment plant in the middle ofa residential neighborhood on Syracuse?s South Side.? 25 There is much protest. Contentious disagreements arise between the county pressing its plan, and the city and the community demanding a better and fairer plan. In January 2002 the county and the NYSDEC begin negotiations with stakeholders. During the5e negotiations, the plant?s estimated cost changes and inexplicably drops $15 million: ?Engineering consultants for Onondaga County have come up with an alternative to building a $60 million Sewage n-eenneni plant on Syracuse?s south Side.? 2?5 By August, that same year, the Post reports that negotiations look hopeful. 27 Ed Kochian, deputy Onondaga County executive, said the underground sewage storage is a ?mueh healthier? option, but the county needs more time to examine the idea, ?gure out the cost and determine whether it?s much cheaper than the sewage treatment plant proposal. Preliminary estimates show that the underground sewage storage would cost between $12 million to $15 million more than the $60 million waste treatment plant, he said. [emphasis added] Then, 21 days later the Post reports: 23 The Partnership for Onondaga Creek, a group opposed to building a $60 million sewage treatment plant on Syracuse?s South Side, expressed outrage Thursday that Syracuse and Onondaga County officials failed to agree on an alternative plan a?er three days of negotiations.? 25 Wehrer, Mark. approves $75 Million Sewage Plant.? Post-Standard, Syracuse, New York, January 8, 2000. 2'5 Weiner, Mark. ?Sewage tank option floated? Post-Standard Syracuse, New York, March 22, 2002. 1" Sieh, Maureen. ?Plan shrinks sewage plant.? Past-Standard, Syracuse, New York, August 2, 2002. 2? Sieh, Mameen and Weiner, Mark. ?County halks at city?s sewage plant alternative.? Post-Standard Syracuse, New York, August 23, 2002. - 13 September, 2006 The Post continues: [Ken] [the DEC regional director] said all sides agreed by Thursday afternoon on most details of the new plan for dealing with sewage over?ows in the neighborhood. would say there are still some technical details to be worked out, but the larger stumbling block seemed to be over funding issues,? said. [emphasis added] Five days later, on AuguSt 28, the Post writes that county executive Nick Pirro29 said the county?s sewage treatment plant for Midland Avenue would cost about $54 million. Estimates for the city?s alternative range from $75 million for the underground sewage storage tanks and one small facility to $378 million for underground storage tanks and two smaller 'abovegncund facilities, Pirro said. Pirro said it?s difficult to settle on the alternatives because the estimates are being made without any engineering designs. More than 90 percent of the county?s sewage treatment plant proposal has been designed, he said. In a December 8 Post op-ed, Pirro discusses the costs of the plant? Meeting these goals is not an inexpensive proposition. The estimated capital cost for the county?s proposed Midland project is $53.9 million. The city?s approach, an all-storage option is even higher, $78.5 million. . Although the storage-only option would have lower annual operating and maintenance costs, those potential savings would not offset principal and interest debt costs for the more expensive storage-only option. Became state and federal aid levels are essentially ?xed, any increase in cost will be borne by local homeowners and businesses located within the county?s consolidated Sanitary District. .. The city has an alternative that might work, but at a cost of an extra $25 million. We cannot agree to harden the community this way when a safe and effective, less costly alternative is available. [emphasis added] In October 2003, the Post reports the price of the Midland treatment facility is still at $54 million.3 Finally the Midland construction project bids are opened and published on May 20, 2004. The Post reports the cost will be more than $75 million 2, surpassing the county?s 2000 estimate: By the time the work is done, county of?cials say they will spend more than $175 million on the pipelines, storage tanks, plant and planning process. The lowest bids for the plant construction totaled about $53 million. 29 Sieh, Maureen, ?Pin-o: Negotiate sewage plan as a whole.? PostsS'tandar-d Syracuse, New York, August 23, 2002. 3" Pirro, Nicholas. ?Opinion: At Issue: Midland Ave. Regional Treatment Facility." Post?Standard, Syracuse, New York, Decemb?' 8, 2002. 3? Weaver, Teri. ?Sewage plant foes petition lawmaker.? Post-Standard, Syracuse, New York, October 7, 2003. 3? Weiner, Mark. ?Sewage plan progresses.? Post-Standard, Syracuse, New York, May 20, 2004. ?New and Signi?cant? l4 in.? And on May 17, 2006, the Post writes that the county?s requesting nearly $50 million more33 for the construction of the Midland sewage plant. This request bring the Midland total to $122 million a $67 million leap from the 2003 $55 million cost estimate that EEA sent to the NYSDEC. The county budget numbers: As the POC tracks the estimated cost changes through the county?s Onondaga Lake Improvement Plan (OLIP) Reports, the Midland sewage plant project?s ?uctuations disappear. The reports only register large swings (see Table 7 below, cost jumps in bold) for Phase II ($30 million and then $7 million more) and for Phase ($13 million), for a total estimated cost rise of $50.4 million. Table 7 The Sonthside?s Midland Sewage Plant Estimated Costs (from Onondaga Lake Improvement Plan Reports) Hon?'ily Report Phase I Phase II Phase Totals Tailman pipe RTF 1000 ft. of pipe Pipeline Dec. 2000 NA NA Dec. 2001 Dec. 2002 Dec. 2003 Oct. 2004 Dee. 2005 Jun. 2006 $38? 5123? Est. oust swings $130! eomplete as Jun 06 100% 46.65% 4.49% Engineering firm: EEA EEA EEA 33 Weiner, Mark. ?Why Did Plant?s Cost Rise?? Post-Standard, Syracuse, New York, May 17, 2006. 15 September, 2006 Just as troubling, the June 2006 report show large increases for the proposed Downtown and Westside RTF projects. Table 8 Downtown Westside Cost Estimates (?om Onondaga Lake Irnprovement Plan Reports) Date Downtown (Clinton) Westside {Harbor Brook) One 4~swirler RTF Two 2-swirler RTFs Dec. 2000 Dec. 2001 $31 .5701 Mar. 2002 Jun. 2002 May 2006 Jun 2006 $85? Est cost swings $53.5? complete as of June 06 2.76% 3.52% Engineering ?rm: EEA MA Downtown?s budget jumps $53.5 million and the Westside?s $10 million. Construction hasn?t even begun on these projects but the cost is rising by the millions. Dming CSO project evaluation, EEA tells the public and the NYSDEC that sewage plants are more cost-e??ective than other viable alternatives such as storage and sewer separation. Such low-balling betrays the ratepayer who is footing the bill and burdens the community with undesirable options. When EEA is assured of approval, it allows the costs to rise. Besides rigging construction cost estimates EEA low-balls Midland?s operating and maintenance costs (035M). Operating and maintenance cost estimating game: 085M expenses are annual costs paid by the ratepayers of Onondaga County?s Consolidated Sanitary Sewer District. Unlike the one-time construction cost, the burden isn?t subsidized by state and federal funding. is an ongoing burden for the facility?s life. Note: when 0W becomes a competitive factor?r storage alternatives, the coamy starts using 25 years as the facilig? ?3 life in facilities plans issued a?er the 2002 negotiations. Previous!? 50 years was the norm. 3? Clinton Street cso Abatement Facilities Plan, Environmental Engineering Associates, March 2002, Table 5-11. ?New and Signi?cant? 16 To compare various options county engineers use ?present worth? calculations. These provide a current dollar estimate for each project by accounting for the one-time construction debt and the on?going 035M over the facility?s life. This calculation is an aid to determining a project?s ?nancial burden. During the 2002 negotiations, the city insists that the present worth calculation isn?t appropriate because it ultimately masks the ratepayers? burden. The Midland CSO project does not risk the engineering ?rms? money. Two-thirds of the Lake Cleanup ?mding comes from state and federal grants. Since most of Midland?s construction cost comes from these grants, only the remainder must be ?nanced locally, hardening the sewer district?s ratepayers with debt service (interest). Yet, low 085M can help offset the debt service. During negotiations the city, the P00 and the Onondaga Nation argue that it makes good ?scal sense to ?nance better, but costlier technology with low To accommodate this analysis, the county asks its accountant to compare the sadder/chlorination options to that of off-line storage. The county?s accountant does not do the analysis over the facility?s 50-year life, or even 25 years, [see previous page], but unaccountably stops the analysis after 18 years. The POC suspects that running the calculations over a longer period would show that the storage option is more cost?effective than the sewage plants. The county?s analysis must be independently investigated. Even accepting that analysis, over the ?rst 18 years, the off- line storage tank option wonld cost the ratepayer only 39 cents (seven dollars over 18 years) more a year than the snirlerlehlorination option. Once the argument revolves around the bene?t of low 035M costs, EEA starts to low-ball its 0W expenses. Drawn from the negotiating cost matrices created by EEA, Table 9 re?ects the same low-balling practice for both construction and estimating. 35 ?Comparison of the Midland Avenue Options on Rates,? Onondaga County, presented in the 2002 negotiations, July 2002. 17 September, 2006 Table 9 Low-Balling Midland?s Strider/Chlorination Sewage Plant Date - Construction . 0&1? Jan. 200236 . Mar. 2002? $1.331?: Jun. 200233 $53,710 $712,000 Aug. 200239 $53.90?: $712,000 Jun. 2003?m $525,000 May 2006? to 153.5M NA *increased with MCCI (Engineering News Record Construction Cost Index In March 2002, EnSource, an independent engineering ?rm hired by the city for the negotiations, designs a storage system that has costs that are ?50% of arr.? ?2 In June 2002, EBA and EnSource present a concept design for two off-line underground storage tanks. EnSource?s operating costs are within 8% of those calculated by BEA to respectively). To gain a bottom-line advantage through low the city and the POC o?'er a second storage option: one underground storage tank combined with the county?s in-line storage pipeline. The negotiating session cost matrices tag this as option 8. Its is $443,000 -- or $212,000 less w? than two-tank system. But near the end of the negotiations, CDM reveals that EEA calculates 080M differently than EnSotuce for its swirler option. BEA decides most storm events do not ?ll these facilities completely, so there is no need to run exhaust fans over the entire 48-hour dewatering period. Consequently, using a graduated average, EBA further reduces the estimated 3?6 Onondaga Comrty Lake Improvement Project Midland Avenue ConveyancesiRegional Treatment Facility Comparison of Five Options (Draft), presented at the 2002 negotiations. January 17, 2002. 3" Onondaga County Lake hnprovement Project. Midland Avenue ConveyancestRegional Treatment Facility Comparison of Options (Draft), presented at the 2002 negotiation. March 21, 2002. 3? Onondaga County Lake Improvement Project. Midland Avenue Conveyanceisegional Treatment Facility Comparison of Options presented at the 2002 negotiation. June 19, 2002. 39 Onondaga County Lake Improvement Project. Midland Avenue Conveyanceszegional Treatment Facility Comparison of Options (Draft), presented at the 2002 negotiation. August 20, 2002. ?0 Mdiand Avenue Regional Hartman nullity and Facilities Plan Amendment, ibid, [chapter 11], footnote Table 2-2 Most viable Alternatives Estimated Costs- ?1 Elander, Richard, Commissioner of Dept. of Onondaga County Water Enviromnent Protection. re: Midland CSO Projected Costs, Internal Memorandum to Nicholas J. Pirro, County Executive. May 15, 2006. 42 Midland Avenue Storage Alternative, EnSoInce, presented in the 2002 negotiations, March 2002. ?New and Signi?cant? 18 When EnSom'ce recalculates option 8 similarly using a graduated average, its $443,000 estimate plummets to $298,000. 43 Alter the negotiations break down, and there aren?t independent engineers checking numbers, BEA sends very different numbers to the NYSDEC in the 2003 Midland Avenue RTF and Conveyance Facility Plan. Instead of sending a plan with and $298,000, BEA submits $525,000 and $413,000, for its swirler option and undergrotmd storage, respectively. 45 EEA doesn?t explain how the sudrler option drops $187,000 or how the storage?s rises $115,000. Since the swirler option relies on large energy-guzzling pups during each storm to lift the combined sewage into the above- ground swirlers, while underground storage ?lls by gravity, the POC ?nds the change unfathomable. Since energy costs are sharply rising, EEA wants to neutralize storage?s advantage. Although the NYSDEC facilitate the 2002 negotiations and witness low-balling, NYSDEC looks the other way, approving the snirlerichlorination sewage plant as the most-cost- e??ective technology. Such rubber-stamping doesn?t serve the ratepayer. The May 2006 overrun and the county?s excuses: County prhnarily blame ?in?ation? for the $67 million over-run. ?5 The POC ?nds this disingenuous. The 2002 construction cost estimates already have a built-in 15% contingency factor. Furthermore, when EBA submits these cost estimates to the NYSDEC, these estimates are bumped up for in?ation using the construction industry?s standard index, ENRCCI. Here, from its May 17, 2006 article, ?Why Did Plant?s Cost Rise?,? is the PosteS?tmtdard?s list of county excuses besides in?ation for this massive over-rim. The iist suggests either dishonesty or incompetence. . .or both. II $16.4 ?An increase in the size of the plant, including the addition of a 2.5 million-gallon underground storage tank.? 0 This is NOT a new cost. In the 2003 document submitted and approved by the DEC, this underground storage tank is included in the design. 47 When the bidding documents went out, they included the 2.5M gallon storage tank.? Note The county bid request values Mdiond Phase II at $40 to $45 as.? 43? Onondaga County. Midland Avenue Present Value Worksheet presented during the 2002 negotiations; Attachment 5. Onondaga County Lake hnprovement Project. Midland Avenue ConveyanoesIRegionaI Treatment Facility Comparison of Options ibid,{chapter Ill, footnote 39]. ?5 Midland Avenue Regional Facility and Conveyonces Facilities Plan Amendment, ibid, [chapter Ill, footnote Table 2-2. 4? wetter. Mark. ibid, [chapter footnote 33] 4? Midland Avenue Regional Treonnenr Facility and Commences Facilities Plan Amendment, ibid, [chapter HI, footnote Section 5: Project Phasing, 5-1. 4? Construction Data News, Western New York Edition, Vol. 9, No. 40, Bid Ref: No. 5453, Project No. 537948-001, Monday, April 19, 2004, 36. ?9 lbid, 23. 19 September, 2006 I ?Extra engineering costs to redesign the plant, evaluate alternative technologies and sites, attend meetings with state regulators and conduct geotechnical investigation pumping tests, and for Onondaga Creek investigations.? 0 Each construction cost estimate is increased again with 25% factor to speci?cally cover additional engineering, legal and miscellaneous costs. Where did this money go? According to the county, the plan that was submitted to the NYSDEC in 2002 was more than 90% complete. ?Pirro said. . .it?s dif?cult to settle on the alternatives because the estimates are being made without any engineering designs. More than 90 percent of the county?s sewage treatment plant proposal has been designed, he said.? 5" Either the county was lying in 2002, or it is now. I ?increased dewatering requirements at the construction site,? ?relocation of a main interceptor sewer? and ?increased costs for reinforced concrete, which was used in higher quantities for the underground storage tank.? 0 In 2003 these are known factors. Competent and honest engineers would include these costs before submitting them to the NYSDEC. 0 design change to install permanent steel sheeting,? and ?increased excavation costs for the sheeting/bracing system.? 0 Why does EEA leave this out of the 2002 cost estimate? - ?the addition of a conveyance pipe ?ushing system,? and ?extending the pipeline on Nowell A 90%-complete engineering design would include these items. - ?blasting to remove naturally occurring cemented gravel along a 1,000- foot pipeline route.? 0 Appropriate and competent core samples would have disclosed this coat in advance of excavation. I $1.6 ?increased costs for electrical, instrumentation and heating, venting and air-conditioning.? 15% contingency cushion covers this cost which the P00 estimates at In an intero??ice memo? explaining the $67 million cost over-run to county executive Nick Pirro, commissioner Dick Elander does not mention the 2002 RTF price of $54 million that was used to disqualify the viable underground storage alternative. At the June 13, 2006 county legislature?s Water Environment Protection Committee meeting, Thane oyal, an environmental 5? Sieh, Maureen. ibid, {chapter 111, footnote 29]. ?1 Blonder, Richard, ibid, [chapter footnote-41]. . . - ?New and Signi?cant? 20 . . attomey, rcports that commissioner Elander, responding to a question about the 2003 estimate, states that ?he didn?t think $55 million was ever a good number.? Other POC members at the meeting hear the same continent.52 If the estimate is bad, and current numbers seem to re?ect that, then the POC believes that in 2002 the county didn?t negotiate honestly or in ?good faith.? 5. Self-serving Midland RTF Alternative Site Review On March 18, 2005, the O?ice of Civil Rights (OCR) dismisses the 2004 POC Title VI claim against Onondaga County and the NYSDEC. The OCR decides that it isn?t necessary to investigate on-site because of the extensive and complete record of development and approval of the Syracuse combined sewer over?ow (CSO) abatement program, including the Midland RTF Alternative Site Evaluation Overview Docwnenr.53 Accepting these documents at face value is not a critical investigation. From the previous experience in the 2002 negotiations around a similar process (see chapter V. Dispw'ioz C. 1. we have the following questions about the alternative site evaluation process conducted by CDM, BEA and Parsons Engineering Science, inc?4 Their process is to develop criteria, assign weights, score the criteria and then calculate a ?nal weighted average for each site. 1. Do only these engineering firms develop the criteria? Are there other entities involved, such as Syracuse Public Housing, the City of Syracuse, NYSDEC, et al? Is the affected public involved? The evaluation document reports that ?Onondaga County Lake Improvement Project Of?ce (LIFO) established an internal weighting and scoring committee.? 5 Who is on the committee? What are the vested interests of each committee member? How do committee members develop the weights for the critelia? How do committee members score the Alternative Site Matrix? By consensus? By voting? By averaging committee members? scores and rounding the average up or down? 6. Are there noteslminutes from the committee?s deliberations? ween 52 Joya], Thane. Notes taken at Onondaga County Legislature Water Environment Protection Commitsee meeting, June 13, 2006, 3. *3 Higgenbotham, Karen re: Dismissal ofAdniinisn'ative Complaint sane-a2 (Midland Avenue Regional Treatment Facility, Syracuse, New York), Letter to Alma Iowry, director of Syracuse University's Public Interest Law Firm, March 18, 2005. 4. 5" Mdland Avemle Regional Treannent Facility and Conveyancer Facilities Plan Amendment, ibid, [chapter footnote Appendix 2. 55 Midland AW Regional Treatrnera acility and Commences ac?iries Plan Amendment, ibid, [chapter footnote Appendix 2, 3-3. 21 September, 2006 This chapter shows how modeling and cost estimating favored the county?s, and favored outcome sewage plants. This alternative site evaluation is like i putty, easily manipulated to a certain outcome. For example, the Alternative Site scoring matrix?; shows that Oxford-Blaine is the preferred site because it has the highest score (3.93). The other site scores are: Former Sears building, 2.93; Coyne 8: Byrne Parking, 2.60; Oneida Temple St. Area, 2.27; ClintonSt, 2.87. Without a balanced committee representing all stakeholders, the process becomes subjective and used to validate their preference. Scoring from a different perspective, without even challenging the criteria or their weights, the POC shows the ?winner? (Table 10) can be just as easily the Former Sears building or Clinton St. rather than the current residential site of Oxford-Blaine. - Table 10 POC Alternative Site Scoring for Oxford-Blaine, Former Sears Building and Clinton St. . (criteria and weights - not challenged but taken from the Alternative Site Evaluation Overview Document 19 Table 3.25?) Oxford-Blaine FormerSear Clinton St. Criteria Weight factor score weight score weight score weight Resident proximity 0.2000 1 0.2000 3 0.6000 4 0.3000 Business proximity 0.0667 5 0.3335 3 0.2001 2 0.1334 Public place; community enhance 0.0667 1 0.066? 1 0.066? 1 0.066? Site ownershiplland use 0.0667 1 0.066? 5 0.3335 1 0.0667 Engineering considerations 0.0667 5 0.3335 2 0.1334 4 0.2666 Environmental considerations 0.0667 5 0.3335 5 0.3335 5 0.3335 Constr. related impacts 0.0667 3 0.2001 2 0.1334 3 0.2001 ACJ compliance 0.2000 5 1.0000 5 1.0000 5 1.0000 Project cost 0.2000 5 1.0000 4 0.8000 4 0.6000 Weighted Average 3.5340 3.6006 3.6672 5'5 Midland Avenue Regional freeman: collie): and Conveyances Facilities Plan Amendmem, ibid, [chapter Ill, foo-mote Appendix 2, Table 3.2, 3-9. 5" IbicL ?New and Signi?cant? 22 C. Summary Using ACJ milestones, modeling, cost estimating and and Parsons? alternative site evaluation, the county and its engineers always ?nd a way to dismiss alternatives. According to ACJ rules, the cheapest compliant CSO project wins. With no competition or oversight, the county?s engineering ?lms will continue to force their costly preference the sewage plant - on the ratepayer and on unwilling low-income, minority communities. Before examining the disparity in the execution of the CSO-LTCP, chapter IV will look at Syracuse?s diverse communities. 23 September, 2006 IV. Diversity of the Syracuse Communities along the Combined Sewer Over?ow Long Term Control Plan A. 2000 Census Data by Census Tract B. Maps of Syracuse Communities 1. Census Tracts of Syracuse Neighborhoods 2. C80 Project Map C. Community Pro?les 1. Northside/ Franklin Square and Maltbie Street Hiawatha Boulevard Sedgwick Farm and Schiller Park Teal] Brook 2. Erie Boulevard 3. Southside Midland Avenue 4. Downtown Armory Square 5. Westside Harbor Brook D. Conclusion September, 2006 CSO Projects Northside Hiawatha RTF Maltbie FCF Franklin FCF (next to upscale Franklin Sq.) Borders Franklin FCF (Pirro?s tract) Proposed Schiller Park underground storage Teail FCF (exclusive Sedgwick section) Southside Midland Avenue RTF The mile pipeline Phase II and The mile pipeline Phase Downtown Preposed Clinton Street RTF Proposed Conveyances; 2-8 din pipeline Westside Proposed Amy 1.5-4.5 it dia. Pipeline Borders Amy St. RTF State Fair 4 ft dia. pipeline Syracuse population: 147,306 Total Population 393 393 393 1 ,976 2,422 3,359 1,895 2,267 2,715 2,444 2,160 2,355 1,868 734 *Taiten from Fact?nder.census .gov United States Census Russo, 2000 families whose residences are within 75? of the pipeline] and may be structurallyr affected by the ?pounding of the piledrivers? for the mile-long Phase pipeline (ranges from 6 a 12 it in diameter) ?Properties Adjacenthear the Conveyance Construction Con-idor,? list attached to a letter to county legislator Althea Onondaga Lake Improvement Project, February 3, 2006. ?New and Signi?cant? Table 11 2000 Census Data by Census Tract Census Tract 3?3 t?lI?ll?f 23 00087.5 87.5 87.5 60.6 83.6 92.8 9.0 12.3 15.2 47.9 37.4 62.3 40. 1 72.8 city averages: 64.3 2 White Black Latino Individuals Below Poverty Per Capita Income 93 6.4 6.4 6.4 39.4 7.5 3.0 3.1 3.1 3.1 5.2 2.4 1.7 18.7 18.7 18.7 33.3 18.5 7.5 $39,085 $3 9,085 $39,085 $1 8,644 $1 5,225 $26,654 83.7 78.0 79.2 7.9 6.7 3 .0 58.3 37.8 41.7 $8,516 $10,862 $3,409 35.7 39.4 10.5 29.0 47.6 50.7 1 4,562 6,949 22.2 39.0 12.7 12.5 22.2 9.2 37.2 52.9 28.6 $10,585 $9,927 $12,716 25.3 5.3 27.3 $15,168 Families evicted I affectedhaplin from Sue Miller, deputy director of Septemher, 2006 .u Census Tracts of Syracuse Neighborhoods Red tract numbers correspond to 2000 census 2 ??Northside If" 6 Washington 10 I 3 g. a Fries. 9 s? 14 5* Eastwo FT 1102 '0 a I. a, 539. 17% Salt 5 ea: Strathmo re Neighbor- 49 50 EE Outer 59 Comstock Sksy a to outh Clamqu Elmwood City of Syracuse North Valley 51.01 -. iawama RTF I Teall Brook FCF Harbor Brook . w. Dung-H1393 st fo the Onondaga Neti?q Adapted from ?Projects to Improve Water Quality? Large egional Treatment Facility Small Regional Floatable Treatment F?c?ity Control Facility C. Community Pro?les The TCP runs through Syracuse ?s diverse communities. The county has presented Environmentai Information Documents (EID stating that the areas a?ected by the CSO-L TCP are similar to all the other Syracuse communities. This is inaccurate and misleading. he county uses census data averages to neutralize these differences. In fact, each site chosen for a major RIF is a minority and low-income community. The following ?armchair journey helps to bring those di?'erences to light. Unless otherwise noted, all photos are by The Partnersth for Onondaga Creek. 5 September, 2006 1. The Northside - Franklin Square and Maltbie Street The City of Syracuse websitel describes Franklin Square as ?an entirely new urban neighborhood. With over $80 million in new investments, Franklin Square has become the location of choice for Central New York employers and residents.? According to the 2000 census, this area enjoys the highest per capita income in the city, and is 87.5% white. Mission Landing Condominiums. Square with Ondaga reek. Franklin Square is considered Syracuse?s oldest neighborhood. Just a few years ago the area was, according to the City, ?an industrial graveyard.? Today, many of the old factories have been renovated and signi?cant unprovernents have been made, including the development of Franklin Square Park. - The upscale renovations of Franklin Square are impressive, and the Franklin FCFs are well-hidden and km.) easy to miss on a drive through the area. Listing from the August 22, 2&06 Post - Standard, for a Mission Landing condominium2 Key lntonnation: Price: $499,000 Type: Family Beds: 2 Baths: 2 Area: Syracuse Downtown City: Syracuse Zip: 13493 County: Onondaga Class: 1393 - Syracuse, City- A Franklin Floatable Control (foreground) with ?Owntown Franklin Square (background). f- ?nder ?New and Signi?cant? 6 Franklin Square and Maltbie Street (continued) The Malthie Street FCF lies at the edge of the Franklin area. (photo taken ?om the Onondaga Lake Improvement Proj eet website?) These well-camou?aged FCFs cause little or no disruption. These same FCFs dump signi?cant amounts of nonvcaptured sewage directly into the creek, thereby increasing the bacterial load of the entire system. Their stated purpose, according to (see chapter V. A-i) is to minimize disruption at Franklin. This they did by installing these unobtrusive and oversized pipes at Midland and Clinton. 3 4 Preliminary VE Report Value Engineering Review Onondaga Corina); CSO Control rankiin iouinbie Control Planning Concept, Camp, Dresser dc McKee, April 1993 7 September, 2006 Hiawatha Boulevard Google Hiawatha Boulevard, Syracuse, New York, and you will get lists of auto dealers and self- storage unitsl .a Hiwatha ulevard; [kin Hiawatha Boulevard; looking west. The remnants of heavy industry are evident all along Hiawatha Boulevard. The area remains a commercial and industrial zone. a along the edge of the Inner Harbor has a staging area and boat launch. It has been the venue for many Syracuse events. The area ?home? to The Carousel Mall.5 5 ?5 ?New and Signi?cant? 3 Hiawatha Boulevard, continued Syracuse Metropolitan Wastewater Treatment Plant. (photo taken from the Onondaga lake Improvement Project website?) The Lakefront is also home of the Syracuse Metropolitan Wastewater Treatment Facility! a state of the art sewage treatment plant. It is, in fact, an effective system that uses ultraviolet to disinfect. This is where the FCC would like all of our wastewater to go for treatment. On the northwest edge of the city, Hiawatha Boulevard also has a. small, single swirler facility, with minimal storage capacity. This facility was built in 2001. September, 2006 Sedawick Farm Schiller Park The Sedgwick Farm neighborhood is an historic district that has been impressively maintained over many years. It is ?deed restricted? and historic homes are prominent. According to the 2000 Census, this area is 92.8% white, with a per capita income 45% higher than the City of Syracuse?s average. Here is an example of a Sedgwiek Farms listing, taken from the August 6, 2006, Syracuse Post- Standard: 99 Burlingame Road Syracuse, NY 13203 and located on the map, below. _Key lntormatlon: Price: $599,000 Type: Single Famin Beds: 6 Full Baths: 4 Half Baths: 2 Sq. Feet: 6,332 Acres: .4 Area: Syracuse North City: Syracuse Zip: 13203 County: Onondaga Subdivision: Sedgwick Farms 1% Year Bum: 1930 eases Haifqu Schiller Park adjoins the Sedgwick Farm neighborhood. This site was recommended to the count},r by the engineering ?rm Steams Wheler for inclusion in the as a site for underground storage3 to reduce the bacterial loading of the Franklin FCF. This was clearly a good idea that was never pursued by the county for this upscale community. Schiller Park. a Smithgall, Craig R. ?Description of Schiller Park Storage Option,? Memorandum to Joel Swanson included in Onondaga County CSO Program Evaluation Report, May 2001, Appendix I. ?New and Signi?cant? 10 Sedgwiek Farm Schiller Park, continued Sedgwick Drive. The corner of Sedgwiek Drive and Brattle Road. With options for underground storage and distribution of burden dismissed, any disruption in these af?uent neighborhoods is minimized. 1 1 September, 2006 Teall Brook Teal! Brook is a small tributary of Ley Creek that runs into Onondaga lake. Although this FCF is included in the Northside, it is really located at the north edge of the Sedgwiek Farm neighborhood. It sits on the intersection of the tidy, quiet corner of Mildred and Teall Avenues. looking toward the Teal] Avenue intersection. According to Onondaga County?s Lake Improvement Website: ?Nearly all of the facility is located underground and, therefore, has a minimum effect on the neighborhood. It is hydraulime cleaned and requires little maintenance. Only the control panel and hatches to permit access below ground are visible ?-om the street.?010 [emphasis added] Excavation of the Tea]! Brook ibid, [chapter IV, footnote 3] Ibid. ?New and Signi?cant? 12 2. Erie Boulevard The Erie Boulevard Storage System (EBSS) runs under Erie Boulevard East, along the northern edge of dovmtown Syracuse and into the Near Eastside neighborhood. It runs beneath predominately commercial areas. The EBSS pro-dates the ACJ, as it was built in the 1970?s using the route of the former Erie Canal, and installing box culvert. According to the Lake Improvement website, 12 this underground storage system is 1.5 miles long with a catchment area of 1,500 acres that can store SMG of wastewater. Upgrades to this system were included as part of the CSO-LTCP, and have been completed under the anticipated budget and at a minimal cost to the taxpayer. Erie Boulevard East, looking west, toward downtown Syracuse. Erie Boulevard is lined with businesses, such as this furniture store, which is representative of many of the buildings; stark fronts and littie landscaping. The facade on this structure near West St. (a control panel for the EBSS) is designed to match the light brick of the nearby Niagara Mohawk building, May 200213 According to Onondaga County Water Environmental Protection Reports, the E883 has not used near its capacity in the past three years, indicating of the effectiveness of underground storage. This underground tunnel is part of the Erie Boulevard Storage System. 1" Ibid. '2 1 13am l3 - Ibtd. 1? Ibid. 13 September, 2006 3. Southside Midland Avenue The Midland Avenue area of the Southside is a residential area in the midst of industry. Centre Bus Garage, Coyne Laundry, Syracuse Stamp, and Byme Dairy already impact the residential community with traf?c, reduced air quality, noise and lowered property values. According to the 2000 Census, this area is 9% white, with a per capita income 44% below the City of Syracuse?s average; 58% of the residents live below the poverty level. The Southside has a wellmdocumented history of imposed discriminatory practices and displacement,15 including housing discrimination and redlining. The proposed solid waste disposal plant on McBride Street was fought for 21 years ?nnugh active community protest. The ?nal agreement with Syracuse University, to expand the existing natural gas steam plant, was supported by the community, but still caused great dismption. The Southwest Community Center on South Avenue was built as part of the mitigation. This Centre Bus Garage expansion caused the displacement of families with the demolition of a 9-unit apartment complex on Tremont Street. Many of the once majestic houses, built at a time when creek front property was valued and Syracuse was thriving, are now either run-donut, boarded and vacant, or subdivided into apartments. Many of the residents have worked hard to make improvements for the community. There are a number of community gardens, recently built Habitat for Humanity and Jubilee Homes, and ongoing initiatives in the struggle for neighborhood development. '5 Mahala Adams, Catherine, ?Defending Our Place: Protest on the Scuthside of Syracuse,? Masters Thesis, Syracuse University, 2003 (see original Title VI, April 2004, exhibits) ?New and Significant? 14 1 Midland Avenue, continued I - - - This Southwest Community Center, as seen Kwanza Neighborhood Garden, from South Avenue, is two blocks from the RTF. in the 900 block of Midland Avenue. Habitat Home and community garden in the Good Neighbors in the 300 block of 300 block of Midland Avenue, Midland Avenue, across next to Onondaga Creek. the street from Onondaga Creek and two blocks from the RTF. 15 September, 2006 Midland Avenue (continued) There are alternative RTF sites in the Southside that the community would have preferred. One site, the former Sears Building on South Selina Street, has been vacant for many years. But the count}r dismissed these suggestions as too expensive, and so this building remains. - - lot behind the Sea Build' is 800 to 1,000 feet from the Instead, the county used eminent domain to seize this park-like area from the city to build its sewage plant. This was the View across the street from the complex shown here as it looks today. ?New and Signi?cant? 16 Midland Avenue (continued) The county evicted people from their homes and placed good housing into storage. These homes, when reopened, will be facing the sewage treatment plant. The barbed wire fencing surrounds the RTF notion site. I 33.? iew log Oxford The county has shot this community down. as consmiction began (2004) The green space is gone, replaced with a sewage plant. I site: May . Photo by John Cavanaugh of Photoworks Aerial Photography? ?5 http?wwaakennondagany.us, ihid, [chapter IV, footnote 3] 17 September, 2006 Midland Avenue (continued) I. .. - 1-. Midland Avenue detour. Before Midland Avenue South Avenue is another major was closed for the construction of the RTF, in 2004, artery. Although it is now used as it was one of the Southside?s major traf?c arteries. part of the detour for Midland Avenue, it too is often closed due to construction. ., . Ev-These 144 inch conveyance pipes"r are not used in any other LTC projects. They are uniquely disruptive. Driving in the Midland area is dif?cult these days, as there are many detours due to the construction of the Midland RTF. One never knows which roads will be closed, impacting residents, visitors, and diverting emergency vehicles. In 1995, this low-income, mostly African-American community was given a community center to ease the pain of building a steam plant in their already burdened community. This time there is no mitigation for the community?s disruption and pain. Instead, it will have an unwanted, unnecessary, and unhealthy sewage plant. ?7 this. ?Wew and Signi?cant? 18 4. Downtown Annogx Sguare It?s dif?cult to understand why, with so many altematives, (see chapter V. D) the county would choose to build a 4 - sodrler sewage plant next to Syracuse?s best known and most Vibrant restored area. .. Armory. A sewage plant will be located behind this museum in Armory Square?s only convenient and spacious parking area (Trolley Lot.)lg '1 -- '1 Resod shops along Walton Stret, in the heart of Armory Square. Walton Street Bridge. ?hep/?2095 1 .194.98farmorysq.htm 19 September, 2006 Armory Square, continued Hawthorn Suites Hotel 19 is located across the street from the Armory. Would you want to stay at the Hawthorn Suites once it overlooks a sewage treatment plant? a This formerly vacant warehouse? (on the northwest edge of Armory Square) has been purchased and renovated by Syracuse University for its School of Architecture, as part of its Connective Corridor project. The building overlooks the creek on its right, and will soon overlook a sewage plant; an unpleasant and unnecessary proSpect. ?9 Ibid. 3" lbid. ?New and Signi?cant? 2O "a 5. Westside Harbor Brook The Westside area is one of the more diverse of Syracuse. Delaware Academy, the elementary school located within sight of the proposed Amy Street RTF, is: 44.9% LatinoIHispanie, 31.9% Black, 5% Asian, 1.4% Native American, and 16.8% White.? Delaware Aeadediy, elementary school bictures above) is located next to the Salvation Army Thrift Store. l: Street hear F. Site of proposed RTF on Amy Street. .5. Amy Street neighborhood. These buildings are slated for demolition to make way for the RTF. The families will be displaced. . Iv! 212003-2004 Enrollment Analysis by Ethnic Background, 76 21 September, 2006 Harbor Brook, continued Fowler High School as viewed from Geddes Street. This school is within sight of the proposed RTF. Key Information: Price: $62,500 Type: Sinle Family Beds: 2 Area: Geddes Area City: Weetvale Zip: 13219 County: Onondaga Class: 1397 - Westvale Harbor Brook runs through 35 acres of wetland. To put forth its own demonstration project, and assist the ongoing community efforts of the Syracuse, approached the county with a proposal to use and restore this wetland area and provide a subsurface storage system (see chapter V. Section E). This system would eliminate two C803 and allow a downsizing of the Amy Street facility. As with other CSO alternative solutions presented to the county, this project is sidelined, and is not included as part of the I ?New and Signi?cant? 22 D. Conclusion The struggling Southside and Westside communities are a stark contrast to the upscale Syracuse neighborhoods of the Northside. There are major socioeconomic and ethnic variations, but rarely do they ?blend.? There are no ?averages.? They say a picture is worth a thousand words, and those pictures are presented here, but so is the real data, When we look at the speci?c demographics of the neighborhoods, and not the ?averages,? the 2000 Census demonstrates the disparity between these neighborhoods, and highlights the differences in per capita income as well as in ethnicity. 23 The next two chapters will analyze the disparate and adverse treatments of the communities along the CSO-LTCP, described here. Chapter V, ?DiSparity in the Execution of the Sewer Over?ow Abatement Projects," contrasts the way the af?uent Northside is spared disruption while disproportionate and unwarranted burdens are forced onto other neighborhoods, the Southside, specifically. Chapter VI, ?Adverse Impacts,? further describes the unmitigated burdens (long and short term impacts) these heavily stressed, low-income neighborhoods are forced to live with 23 2000 Census Data by Census Tract, Table 11, chapter IV, 2 23 September, 2006 V. Disparity in the Execution of the Combined Sewer Over?ow Abatement Projects A. Syracuse?s Northside CSO Projects 1. sawsww Franklin Street Floatable Control Facility Maltbie Street Floatable Control Facility Hiawatha Boulevard Regional Treatment Facility Teall Avenue Floatable Control Facility Onondaga Creek Floatable Control Facility Skimmer Trash Boat Summary B. Repaired Erie Boulevard Storage System C. Syracuse?s Southside CSO Projects for the Midland Avenue Sub-basin 1. Searching for a Better CSO Abatement Technology a. Pushing for an alternative search b. The 2002 negotiations c. Judge Thomas McAvoy?s decision d. The county?s unilateral decision e. The POC works to ?nd $20 million more for the storage option f. The Title VI claim 2. Phase The Midland Pipeline 3. The Cost Scandal and Call for an Audit 4. Summary D. Syracuse?s Downtown CSO Projects for the Clinton Street Sub-basin. E. Syracuse?s Westside CSO Projects for the Harbor Brook Sub-basin September, 2006 A. Syracuse?s Northside CSO Projects 1991 recon:menotetimes:?r Three I-swirlerfocilities; one Executed one I-mirlerfacilioz; ?ve FCFs Ignored 2001 recommended remediation-3 one underground storage tank Demography: Syracuse?s Northside community affected by ACJ CSO projects -- a RTF demonstration project and three ?oatahle control facilities - is mainly Euro-American having medium to high income. The city residents think of the Northside as predominantly Italian-American; it even has a ?Little Italy? section. In the past decade, the Northside has been diversifying. The census tracts hosting (330 projects are census tract 1 and 9. Both tracts are about 90% Euro-American with per capita incomes of $39,085 and $26,654, respectively. The new-revitalized upscale Franklin Square a residential and business community is in census tract 1. The exclusive deed- restricted Sedgwick Farms is in census tract 9. (See 2000 Census Data, Table 11 in above chapter IV. Diver-sigh) 1. Franklin Street Floatablc Control Facility (FCF) (Brunet FCF- (380 21 ?5 Butternut FCF - (380 20) Taxpayer ?5 ratepayer cost: $4,945,837; ratepayer cost: . pro-1998: In the 1991 Combined Sewer Over?ow Facilities Plan 4 Ma?a Associates (MA) and Blasland, Bouck dc Lee (BBL), currently one of three EBA ?rms, recommend a C30 Long-Term Control Plan (080 LTCP) for the city of Syracuse: nine facilities, one of them being Franklin Street on the Northside. In that same report, MA dc BBL state that improvements to the county?s Best Management Practices (BMP) initiative show improvements city-wide except in the case of (330 20, the discharge point for the Butternut sewer, where suspended solids are 25% higher than before the BMP projectss Despite the pollution discharging from the Butternut u'unk sewer, Onondaga County?s consulting engineers recommend that the county downsize the proposed 2-swirler RTF slated to go near the newly restored Franklin Square and just upstream ?om the City?s Inner Harbor to a small floatable control facility (F CF). 1 Combined Sewer Over?ow Facilities Plan, ibid, [chapter footnote 14], 5-42. 2 Amended Consent Judgment, ibid, [chapter II, footnote Appendix B, 8, It}, 12. 3 Smithgall, Craig R. ihid, [chapter IV, footnote 4 Combined Sewer Over?ow Facilities Plan, ibid, [chapter 111, footnote 14], 5-42. 5 Combined Server Over?ow Facilities Plan, ibid, [chapter footnote 14], 1?2, 1-3. ?New and Signi?cant? 2 L) From the Franklin Street Floatables Control Facilities Engineering Design Report, 11.2: A value engineering report was prepared in April 1998 by Camp, Dresser, dc McKee for Onondaga County on the original proposed Franklin Street Floatable Control Facility. The VB session suggested that it appeared to be more feasible to provide a separate ?oatable facility for each over?ow. Although initially conceived as a swirl concentrator facilin serving both (C30 20 Butternut trunk sewer and the C80 21 Burnet Avenue trunk sewer) during egotia?ons of the ACJ, it was agreed that an FCF serving both trunk sewer over?ows would allow the county to meet the presumptive standard. The ACJ is built around the presumptive standard mentioned in above chapter HI. Execution ofthe under ACJ mandates:t3 elimination or the capture for neaunent of no less than 85% by volume of the combined sewage collected in the combined sewer system during precipitation events on a system- wide annual average basis. [emphasis added] This ACJ mandate allows the county to save the Northside ?rom large stigmatizing disruptive 030 projects. The county, its consultants and the NYSDEC decide not to capture these Northside combined sewer over?ows modeled to be 83 million gallons a year (mgy), but may be much larger (see chapter Execution oftne ACJ Table 4 under Flawed Stonnwater Modeling). This (330 volume has an average fecal density of 1,290,000 efui 100ml. Instead, the county shifts the ACJ~mandated burden to capture 85% of the wet weather ?ow to the Southside, Downtown and the Westside, all Title VI communities. In the April 1998 Preliminary VE (value engineering) Report on Franklin CF, CDM (Camp, Dresser and McKee) mites? The mission of the VE team is to identify and evaluate alternative solutions for Franklin FCF that will reduce costs and disruption of the site. Disruption is the major concern. [emphasis added] and:3 The latest {1998} concept is to construct a floatahles containment facility instead of a swirl concentrator. [emphasis added] 6 Amended Consent Judgment, ibid, [chapter 11, footnote ll. 7 Preiiminary VE Report Value Engineering Review Onondaga County CSO Control Franklin Fioatabt?e Controlr Facility Planning Concept, ibid, {chapter 1V. footnote 1?1. 3 Preliminary in Report Value Engineering Review Onondaga County 090 Control Franklin Ffoatable Centre?T Facility Pimtning Concept; ibid, [chapter IV. footnote 2-2. 3 September, 2006 This is the following we report?s design suggestion from Table Oversize pipeline in both Midland and Clinton to provide additional storage value to replace that lost by the new alternative. [emmasis added] CDM has the engineering dign contracts for the Midland (Southside), Clinton (Downtown) and Harbor Brook (Westside) pipelines. Given the cartel control cited in Chapter II, it is not surprising that this 1998 CDM suggestion, which the county and the NY SDEC agree to, brings CDM three lucrative pipeline contracts. May 2000: The county completes building the Franklin FCF, a single name for Burnet and the Butternut FCFs that are almost side-by-side. The Franklin FCF is on the edge of Syracuse?s upscale Franklin Square residential and business community and just upstream from Onondaga lake?s Inner Harbor, currently slated for upscale residential and commercial development Robert Congo! is the powerful politically-connected developer of Franklin Square and the Inner Harbor proposals. He is also the developer of - the Carousel Mall on Onondaga Lake and of its proposed expansion into ?DestiNY,? a controversial mega-development. January 2001: From the beginning, as documented in the county?s quarterly performance reports the county has been struggling with serious operational and maintenance problems at Franklin FCF. Both FCFs serve three major sewer trunk lines: Butternut, Burnet and James. Because these FCFs Only remove trash from the combined sewage and allow fecal matter to discharge into Onondaga Creek, the Inner Harbor and Onondaga lake, the PCP remains a large polluting CSO facility. The graph on the follovdng page, shows spikes of fecal coliform units (fcu). The county gathers this data just upstream of the Inner Harbor and of the Franklin FCF. According to MA, anything above 200 cfuf 100 In] is a bacteria violation. It is possible that in 2012 this FCF will be responsible for violations in the class water of Onondaga Lake. 9 Preliminary VE Repo? Value Engineering Review Onondaga Coma): C30 Control Franklin Wearable Conn-o! Pacific}: Planning Concept. ibid, [chapter IV. footnote 4-4. ?New and Signi?cant? 4 on) Fecal Golifonn bacteria in Onondaga Creek, 2003 Ambient Monitoring Program Results 30,000 Intensive 25,000 atom monltoring - [Values shown are Dally geometric means] 20,000 crunoo ml 4 1" A 3? HI Regulatory Iinlt: A Arno/v LA 0' ri?i- . Rf 'ti?f my? my? Wb? Kg Kf Kp?? ?994$? of ref Given modeling errors and ?rules? discussed in chapter the not-captured bacterial loads of the Franklin FCF will limit storage options for Syracuse?s Title VI neighborhoods. approach forces their CSO storage projects to capture much more than just a one-year storm to compensate for the Northside CSO dumping into Onondaga Creek with its high fecal concentrations. . In a January 2001 memorandum,? Steams dz Wheler (SW), one of the three BEA ?rms, recommends that an o??line tmderground storage tank be added upstream to deal with this polluting CSO facility. SW suggests that this remedial CSO project be done as an ACJ-mandated project to address the CSO discharge ?oor the Butternut FCF. The memorandum points out that an upstream oil-line storage tank would keep combined sewage during storms out of the Teal] Avenue and Butternut FCFs and help Northside residents with their ?ooding problems. By adding combined sewage storage capacity to the Northside, SW states that this capacity would provide? 0 reduction in the frequency and duration of C50 discharges to Onondaga Creek. The major bene?cial impact would be reduced bacterial loadings. [emphasis added] I Reduction in the frequency and of events treated at the Franklin Floatables Conn-o] Facility. This would reduce the required operation and maintenance cost at this facility. 1? Smithgall, Craig R. ibid, [chapter Iv, footnote 5] Smi?igall, Craig ibid, [chapter 1v, footnote pl 5 September, 2006 0 Reduction in the frequency and duration of discharge events at the Spencer Street bypass [on the Northside] i .. .relief to the residents of Highland, Knaul and Butternut Streets and Hier and (311.1th Avenues [on the Northside] whose basements are frequemly ?ooded by backups ?'om the local combined sewer system. The option would also signi?cantly reduce the problems of street ?ooding in this same area. At a 2004 Northside neighborhood development meeting, the then director of the Lake Cleanup project told Northsiders that the county wasn?t planning on doing the Schiller Peri: project. The Schiller project is adjacent to one of the most exclusive neighborhoods in the city (see chapter IV. Diversiox). Northside ?reduced bacterial loading? would have prevented Northside?s (380 volume with its bacteria concentrations ?om burdening Title VI neighborhoods with larger than necessary CSO storage facilities. 2. Maltbie Street Floatable Control Facility (F CF) ((380 66) Taxpayer dc ratepayer cost: $362,000; ratepayer cost: 035M April 1999: In the 1991 Combined Sewer Over?ow Focilties Plan?, MA and BBL propose a l-swirler for C30 66 at Maltbie Street. And again the county spares the upscale Franklin Square (Northside) from this undesirable technology and constructs the Maltbie FCF on Onondaga Creek, just upstream of Onondaga Lake?s Inner Harbor. According to MA, Maltbie Street FCF discharges 21 mgy (million gallons per year) of combined sewage with a fecal concentration of 130,000, making the Northside?s total of non-captured combined sewage 104 mgy. 3. Hiawatha Boulevard Regional Treatment Facility (RTF) (030 074 075) Taxpayer ratepayer cost: $9,453,183; ratepayer cost: 085M December 2000: In the 1991 Combined Sewer Over?ow Facilities Plan, MA and BBL advise how to abate C30 074 EL 075 to assure that Robert Congel?s Carousel Mall isn?t negatively affected by a sewage plant:13 For the purposes of this report it is proposed that the Hiawatha CSO Treatment Facility be sized to include an assumed 50 percent of the area tributary to C80 074 and all of the combined area from (380 075. This will require the construction of a 080 transmission pipeline running northward along Hiawatha Boulevard, to provide for the ?ows from ?30 075?s combined area, and an under?ow force main connection (same trench) to the intersection of Hiawatha Boulevard and North Selina Street. In this manner, the crossing of Route 8] can be avoided and there will be no need to construct a (380 Treatment '2 Combined Sewer Over?ow Facilities Plan, ibid, [chapter 111, footnote 14], 5.42. ?3 Combined Sewer Over?ow Facilities Plan, ibid, [chapter 111, footnote 14], 5-41. ?New and Signi?cant? 6 Facility [1-sv?rler sewage plant] in the vicinity of the intersections of Hiawatha Boulevard and Solar Street (Carousel Mall area). [emphasis added] In 1999 Midland Avenue RTF Alternative Site Evaluation Overview Document, CDM shows that creative solutions stop for the county engineers when the people a?ected are low?income, African-American and not politically connected. This disparity will he discussed ?irther in this chapter?s section (3., Syracuse?s Southside CSO Projects for the Midland Avenue Sub-basin. In 2000, the county completes the construction of this small 1-swirler)r chlorination RTF in a Northside non-residential area. This RTF is the only Northside capturing CSO project. According to the Appendix B, this RTF is to be a 080 abatement demonstration project which: '4 will be designed to demonstrate and test vortex separation, in-line and off-line storage and disinfection of (380.. .. and A Regional Treatment and Storage Facility. Wet weather CSOs ?'om the new 30-inch interceptor sewer will be directed into a swirl concentrator, where heavier solids and ?oatables will be removed. The overflow from this facility will then either be directed into a storage basin or be disinfected with sodium hypochlorite and discharged to Lay Creek. From the county?s quarterly performance reports off-line storage appears to he in-line with both the vortex separator and the disinfection tank, thus removing the demonstration value of the $9.5 million project. After ?ve years of operation, the 2000, 2001, 2002, 2003, and 2004 performance reports show that this ?demonstration? had two disinfected over?ows totaling .75 mg rather than the 5 mg predicted by MA a 660% high modeling error. Because the (380 discharge is small, we did not include it in chapter Table 4: Flawed MA Modeling, CSO Volumes by City Section. 4. Teal] Avenue Floatable Control Facility (FCF) (CSO 73) Taxpayer 3r. ratepayer cost: $1,235,346; ratepayer cost: December 2001: The county ?nishes its third Northside non-capturing CSO facility. In the 1991 Combined Sewer Over?ow Facilities Plan this CSO facility was to be a capturing l-swirler plant slated for predominantly Euro-American upscale neighborhood of Teal] Avenue and Mildred Street15 (census tract 9). Instead, the county 1" Amended Consent Judgment, ibid, [chapter 11, footnote Appendix B, 10. '5 Combined Sewer Over?ow Facilities Plan, ibid, [chapter footnote 14], 5-42. 7 September, 2006 changes this snarler plant into a ?oatable control facility, putting it underground and making it nearly invisible to this Northside neighborhood (see chapter WC Diversiw). Even though it isn?t visible to the Northside residents, it discharges seven mgy with a fecal concentration of 520,000 into Teall Brook, a tributary of Loy Creek, thus negativer a?ecting the water quality of Onondaga Lake. FECAL COLIFORHI BACTERIA IN LEY CREEK, 2003 Ambient Monitoring Program Resulm I l? ?g?mmlh liw, s? s65? st? of f? f? of This last non-capturing FCF brings the non-captured Northside totals to 111 mgy. When MA sizes the Southside, Downtown and Westside off-line storage tanks, it loads these non-captured volumes and their respective fecal concentrations into the stormwater model. Even though the Northside FCF will over?ow 60 times a year, MA sizes off-line storage tanks so they will almost never over?ow. This makes them larger than they would have to be if the Northside captured its own combined sewage. 5. Onondaga Creek Floatable Control Facility (FCF) (failed in-creek boom) Taxpayer 8c ratepayer cost: $643,171; ratepayer cost: 085M 2001: The county ?nishes building the Onondaga Creek FCF, an in-creek boom, located right before Onondaga Lake?s Inner Harbor. From the county?s May 2002 Report: ?New and Signi?cant? 8 Due to the failure of the in-creek boom to effectively operate in wet weather ?ows, the County recommended use of a skimmer boat and booms located in the harbor for ?oatables capture and control as outlined in a report submitted to DEC on April 26, 2002 which included recommendations for proceeding and meeting the ACJ operational milestone of July 1, 2002. This operation would keep ?oatables from entering Onondaga Lake ?'om Onondaga Creek and improve the aesthetics of the harbor area by removing debris and ?oatables which collect in the bays and along the shore. Those present discussed the proposal and related issues including aesthetic and navigational considerations to use of booms in the harbor. Most were familiar with similar skimmer boat operations in other areas and appeared in agreement on their usefulness for collection of floatables in such environments. ti. Skimmer Trash Boat (Inner Harbor) Ratepayer annual 085M cost: $62, 604 (based on 2004) 2004: The county contracts Alpha Boats to ?remove and dispose of ?oatables of all Combined Sewer Over?ows (CSOs) which discharge into Onondaga Creek above the Inner Harbor." 7. Summary Even though the Northside?s CSOs contribute over 134 mgy (and maybe much more, as discussed in chapter Table 4) with average fecal concentrations of 1,940,000 cfuf 100ml to Onondaga Lake, the county protects the Northside ?'om large capturing, stigmatizing, disruptive CSO projects. 1. MA treats all sub-basins as an entity in the 030 Volume Capture Table, such as Southside, Downtown, and the Westside except for the Northside. As discussed in chapter HI, MA obscures the C130 pollution problem on the Northside by listing four separate CSO projects: Teall Avenue FCF, Maltbie Street FCF, Franklin Street CF (Butternut dc Burnet FCFs), and Hiawatha RTF. Using this table it is dif?cult to compare the Northside to the Southside, Downtown and the Westside in terms of total volume discharge into the tributaries to Onondaga Lake. As mentioned in chapter the Northside CSO problem is as large as the Westside?s. And if the unmeasured Franklin FCF discharges are much larger than MA predicts, the Northside may be the most polluting side of the city but with minimal CSO capture. 2. By building four small non-capttu'ing CSO facilities (Maltbie, Burnet, Buttemut and Teall) and a small l-swirler RTF in a non-residential neighborhood, the county protects the Northside from the adverse impacts such as: stigma, loss of future development, loss of real estate value, loss of personal property, evictions, noise, dust and truck traf?c, and major traf?c disruptions, like year-long road closures. 9 Septeniber, 2006 3. By building almost exclusively email, nearly invisible, non-capturing facilities on the Northside, the county shifts at least 80% of its Northside?s (350 volume and bacterial burden to the Southside, the Westside and Downtown ail Title VI comnnmities. The Northside is pro?dominantly white and median income with pockets of prime real estate. 4. In 2001 the engineering consultant Steams Wheler suggests an underground storage facility in Schiller Park. The county decides not to pursue the project, probably because it is near Sedgwick Farms, an exclusive Northside neighborhood, and would disrupt a very nice Northside amenity, the park. This project would have built another CSO capturing facility on the Northside besides the small Hiawatha RTF. It would have decreased the Northside?s CSO volume by 76 mgy along with its accompanying bacterial load - with an average fecal density of 1,290,000 cfuf 100ml. Instead, MA uses this bacterial load for its stormwater model that sizes off-line storage tanks. This load helps MA disqualify viable storage options for Title VI neighborhoods. It is at least a double standard that MA worries about the back-to-back storm that might hit an off-line storage tank and cause an over?ow, but isn?t concerned about the 60 over?ows a year that are pouring out of these Northside FCFs. The POC views this as classic environmental racism. 5. By 2000, the county has buiit four of the Northside facilities and ?nishes the remaining two by 2002. Since these facilities are small and didn?t disrupt any neighborhood, no one really paid attention Of course, no city resident initially realized the signi?cance of the Northside getting these four small non-capturing facilities. Even during the 2002 negotiations, when MA was sizing the Southside undergron storage tanks to make sane that the county stayed compliant with the bacteria requirement in Onondaga Lake?s class waters, no one, not even MA, talked about this Northside bacteria load that Southsiders were shouldering along with their own. Nor did anyone discuss the other modeling ?Tules? such as the back-to-back storm sizing, the 48-hour die-watering rule, and 99.9% bacteria kill model input which all bias the stormwater model in favor of facilities. As EEA and MA compile the Clinton Street and the Harbor Brook CSO Abatement Facilities Plans, the Northside bacteria load also increases the size of Downtown?s and the Westside?s storage tank possibilities far beyond the one-year storm requirement -- making these storage options easier to disqualify as too costly or impossible to de-water within 48 hours. At the same time MA assumes a 99.9% bacteria kill for its preferred sewage plants. MA and EBA present these RTFs to NYSDEC as ?cost? effective, compliant? CSO abatement facilities. And as shown in chapter Remove! Alternatives, Cost Estimate Manipulation, the Midland costs are going ?through the roof.? ?New and Signi?cant? 10 An oversizing example: Harbor Brook (Westside) drainage basin has three sub- basins: Upper, Middle and Lower. The entire basin has the same CSO volume as the Northside. But this basin will get two swirlerichlorination sewage plants, ?ve FCFs and long conveyances (in-line storage). MA disquali?es an upper basin storage tank. In the 2004 Harbor Brook C80 Abatement Facilities Plan, MA states that, haed on its long-term modeling results, Harbor Brook?s upper basin must build an 3.2 mg storage tank to be ACJ-compliant. Then, MA disquali?es the storage option by stating that the Harbor Brook. Interceptor Sewer cannot de- water this oversized storage tank within 43 hours. The troubling thing is the upper basin one?year storm is only 3.4 mg, not even halfof the entire Harbor Brook basin one-year storm of 7.8 mg. But MA says the tank must be big enough to store more than the entire basin?s one year storm, despite a planned capturing RTF in the lower basin. 6. While the Northside has gotten nearly invisible non-capturing CSO facilities, struggling Title VI are getting large, stigmatizing sewage facilities. - 7. There is an imbalance of power between the Northside and other Syracuse comraunities, especially the Southside. Five-term Republican County Executive Nicholas Pirro, the longest serving New York State county executive, lives in Northside census tract 23 (see chapter IV. Table 11). In 1999 only the Green party runs a candidate against Pirro, and in 2003 Pirro runs unopposed. From election statistics, in 1999, 75 of Northsiders (wards - 4) pull the lever for Pirro, while only 34% of ward 18 (includes the Midland sewage plant) vote for him. In 2003, when Pirro runs unopposed, he gets 70% of the vote ?'orn wards one through four and only 20% from ward 18.16 8. Many county and city residents believe that almost nothing happens locally without Pirro?s approval. '5 1999 dc 2003 emery results of Onondaga County Executive race by election districts accompanied by City of Syracuse common council district map by elention wards. 11 September, 2006 B. Repaired Erie Boulevard Storage System (boundary between the Northside and Downtown) Taxpayer 3: ratepayer cost: $2,578,219; ratepayer- cost: April 2002: The county repairs the Erie Boulevard Storage System (EBSS), ?xing its surging and back?ow problems. MA predicts that annually the EBSS will store 220 mg and discharge 69 Inger into Onondaga Creek" with a fecal colifonn concentration of 120,000 cfuf 100ml . MA adds this 69 mgy with its bacterial load along with the Northside?s 111 ingy to size off-line storage tanks. But how real is EBSS 69 mgy? The 2003, 2004, and 2005 quarterly performance reports say that EBSS has never over?owed in three years. In 2004, a wet year, EBSS only stored predicts - almost a 100% discrepancy. bacteria loads should not be entered into the stormwater model for sizing off-line storage tanks. Using ?awed inputs in the bacteria modeling for the Onondaga Lake?s class waters oversizes the C80 storage options for Southside, Downtown and Westside. Even though underground storage without disinfection is the socially and environmentally better C80 option, sizing a storage option larger than necessary akes this option cost-prohibitive. And by ACJ rules, the NYSDEC and 0ondaga County can ignore ay option, even if it has environmental and social value, in favor of the swirler-chlorination facilities laid out in the ACJ if the plants are cheaper. Harbor Brook cso Abatement Facilities Plan, ibid, [chapter 111, footnote 15], Table 3, difference between column 4 and cohimn 3. '3 Goebel, Howard and Davis, Daniel. ibid, [chapter 111, footnote 20], 3. ?New and Signi?cant? 12 C. Syracuse?s Southside CSO Projects for the Midland Avenue Sub-basin 1991 recommendations.? ACJ cso pros-2" Lootriorfooaay; 6-1 2 ft. din. mile-long pipeline; sewer separation Building 2003 county plan?" 2-mirler facility; underground storage tank; 6-i2ji. die. mile-long phyeiine; saver separation Demography: Syracuse?s Southside community affected by the Midland CSO projects sewer separation projects, a 2-swirlerlr chlorination facility with upstream storage and a mile-long pipeline - is predominantly African-American and low?income. The CSO projects span three census tracts, 42, 52 and 58. The African-American percentage for these census tracts are 83.7, 78.0, 79.2%, respectively. The percentage of families under the poverty line are 58.3, 37 .8 and 41.7, respectively, while the per capita incomes are $8,516; $10,862 and $8,409. The city?s per capita average is $15,168 while the percentage of families under the poverty line is 27%. The Midland sewage plant is being built in census tract 42, while the pipeline will be divided between census tract 52 and 58. Sewer separation projects are scattered throughout these three census tracts. Along with struggling for equitable treatment and its fair share of local resources, the Southside has been working hard to promote home ownership through Jubilee Homes, Habitat for Humanity, Syracuse Model Neighborhood and Home Headquarters. 1. Searching for a Better CSO Abatement Technology a. Pushing for an alternative search: March 1999: At the Midland Avenue CSO project public hearing, the county never engages the Southside residents about various CSO solutions; it only informs the community about the county?s intent to build a 4-swirler-chlorination regional treatment plant (RTF) on one of their residential blocks, Oxford-Blaine. A mile?long in-line storage pipeline will feed the sewage plant. Oxford-Blaine has some of the best public housing in Syracuse; before the evictions, it is home to 34 families. The county doesn?t present the complete project and all of its severe impacts because the route for the mile- long pipeline isn?t de?ned yet even though it consists of enormous 12 ft. diameter pipe. The residents voice their concerns: neighborhood displacement, low re-sale value for ?9 Combined Sewer Over?ow Facilities Plan, ibid, [chapter foomote 14], 5-42. 2" Amended Consent Judgment, ibid, [chapter H, footnote Appendix B, 7,9. 2' MidiandAveme Regional freshman: Facility and 6'0an Facilities Plan Amendment, ibid, [chapter Ill, footnote 5-1. 13 September, 2006 their homes, the shortened public process, Lake Cleanup jobs for the neighborhood, - health concerns, odors and rats.22 - The county says it will do an additional alternate site review in response to the protest generated by the sewage plant?s proposed location.23 The 1999 MidionctAvenae Alternative Site Evaluation Overview says that the Unfold-Blaine neighborhood was selected because: 24 0 Restrictions in sections of the Main Interceptor Sewer north of the site as it flows to Metro, which limit conveyance capacity in those areas. Ir Con?uence of three major interceptor [trunk] sewers at the site. 0 Close proximity to Ononthga Creek. As noted above in section A (Syracuse?s Northside CSO Projects,) BEA, CDM and MA recon?gure almost every Northside CSO project before the ACJ is signed, making sure that each project will be acceptable to every Northside area. The James, and Burnet trunk sewers meet at Franklin and Butternut Streets. This doesn?t stop ?creative? solutions for the area outside upscale Franklin Square. Yet, the cormty and BEA and CDM can?t ?nd a ?creative? solution for Southside residents. When the POC reads the conclusions from the ?Midland arr A1st Site sensation.?25 matrix we note the reasons for keeping the sewage plant at Oxford-Blaine are 0 alternate sites will cost about $9 to $22 million more to build - alternate sites will move the construction impacts to another group, and I jeopardize ability to meet ACJ deadlines. $22 million is only 4% of the current Lake Cleanup budget - a small price to pay for fairness and respect. The second reason shows a double-standard that favors the Northside. During the 1998 value engineering session on the Franklin FCF, CDM suggests moving the sewage capture from the Northside to the Southside and Downtown by over sizing the Midland and Clinton pipelines.? Dining that vs session there is no The l999AlternateSite Evaluation Overview is a contrived document the proposed footballs?eld size sewage plant for the low-income, block of Oxford-Blaine (see chapter 111,, Selfiserving Mu?arui RIFAt'tei'native Site Review). And, as documented in chapter HI and chapter V, the NYSDEC changes deadlines when necessary. Mdiand Avenue Regional Imminent Raspomivettess 5'wa Public Hearing, 13 March23,l999,p llhru16(p15 missing); Mh?and Avenue Regional Tram Fading Responsiveness Summfor Public Hearing, ibid, [chapter V, footnote 22], 2. 2" Mit?ana' Artemis Regionci Tit-cannon! Facilities Plan Amendnent, ibid, [chapter ill, footnote 5] Appendix 2, 1-3. MidiandAvenue rm Facets, Facilities Plan Amend-sou. ibid, [chapter 111, footnote Appendix 2, 1-5, 1-6. 26 Preliminwy VE Repair-t Value Engineering Review Onondaga County (.130 Control Franklin testable Control Facility Planning Concept, ibid, [diapter IV, facilitate 4-4. ?New and Signi?cant? l4 Over the years, the county?s mantra for this economically-snowed, African-American community is: ?The county is under court order to cleanup the Lake,? ?The pipes meet at Oxford-Blaine,? and ?There aren?t any other viable alternatives.? Summer 1998 2000: Ogden Yorkshire Water Company of Fair?eld, NJ offers a $100- million cheaper sewage proposal for the Lake Cleanup projects. Through meetings and the media, the company makes presentations to residents.2 An April 11, 2000 Post.- Standard editorial entitled ?Find the Answers? echoes the keen public intetest in the Ogden proposal because it is not only cheaper but less dismptive than the county?s plan. Given the less than enthusiastic response from the NYSDEC and the county,? the proposal goes nowhere. Public interest in alternative approaches intensi?es. January May, 2000: Local Congressman James Walsh announces that the Army Corps of Engineers (ACE) would evaluate Lake Cleanup proposals submitted by ?rms across the country in response to a countyewritten request for proposals (REP). Even though November 2003 is the ?rst major milestone? and even though the assess changes minor milestones on request from the county, the county states that there isn?t enough time to follow the design?bidbuild rules laid out by Wicks labor law. The county draws up a design-build which is sure to, and does cause friction with the state legislature. Since a design-build RFP would violate the Wicks law, the county legislath wants the New York State Assembly to vote to waive the Wicks law for this RFP. Some lawmakers say they won?t sponsor a waiver. In responSe, the county says that it will not ask for a waiver, butjust an exemption of the law for unique technologies. The ACE gives the state Assembly until May 3, 2000 to vote on this exemption. The vote doesn?t happen and so this ?mded rational search for better proposals is aborted, showing the county and BEA, MA and CDM are not serious about a search for alternatives. about?nesthatcomdincm'due tomisseddeadiines. selection. Eventhoughthe countyrelies 2000 ithasasked forat least 28 minor milestones changes. In 2003, the comny proposes a major milestone change for the Midland project ?'om 2007 to 20033?. In 2006, the county?s new major milestone forecast is January 2009.31 But, with these milestone changes the county is silent about ?nes. Obviously, for good reasons the schedule can be changed. The RFP could have been a design-bidebuild RFP with no change to the Wicks labor law and the public could have been protected from the cotmty?s engineering cartel by competitive ideas and designs. 2? signage TV 9Channol 9 (ABC) ?ve series presentation on the Ogden Yorkshire technology [not it 33 Report, Onondaga Lake Improvement Project, August 10, 1999, 10, ll. 25' Onondaga Comm: Request for Proposals, Osmidaga County, May 5, zone, 2-1 1, 2-12. 3" MtamtdAveete Regional Treatment Facility and Facilities Plan Amendment, ibid, [chapter to, fonmote 5-2. 31 Elander, Richard, re: Construction of the Midland Phase Conveyance, Letter to Felicia Atchley (a?'ected Southside resident), February 2, 2006. I15 September, 2006 March 2000: Although the RF initiative is still alive, the county pushes the Syracuse Common Council to accept the Tallman conveyance, Phase I of its proposed Midland RTF. This pipe is a 900-ft conveyance pointing to the residential block of Oxford-Blame, the proposed RTF site. In 1999 the NYSDEC approves the county proposal to move up the starting construction dates for the Tallman conveyance (from May 1, 2004 to October 1, 2000) and for the sewage plant (from May 1, 2007 to May 1, 2004.)32 The public argues before the City Common Council that laying the pipeline earlier than needed would pre-empt any funire proposal that may not need this pipe. The city council votes unanimously against starting Phase I. The county ignores the vote and the public outcry saying it doesn?t need permission because in 1978 the City of Syracuse granted the county right-of-way for existing sewer lines.33 July 2000: The county installs this $3 million conveyance four years before the sewage plant?s construction must begin. This pre?emptive action illustrates the county?s intent to silence opposition by getting a pipe in the ground pointing at Oxford-Blaine. Installing the conveyance years before it is needed prejudices the 2002 negotiations and eliminates the possibility of getting the most equitable C80 abatement solution for this African- American community. During these negotiations, all parties are trying to use the $3 million of public money already in the ground. January 2001: As noted in the above Northside section, Steams Wheler recommends an underground storage tank for Schiller Park located in the median-income and predominantly white Northside neighborhood. Yet, in the I 999 Midland Aveinie RTF and Conveyances Facility Plan, EEA doesn?t evaluate off-line underground storage tank(s) even though there is plenty of vacant land at critical locationss?I The county limits itselfto two impractical solutions - storage tunnels and complete sewer saparation. The county quickly discards both ideas as not feasible or cost-effective, allowing the county to claim that the only practical solution is a RTE. May 2001: The county presents an intermunicipal agreement to the Syracuse Common Council. In exchange for the park-like city-owned parcel on the residential block of Oxford-Blaine to build the sewage plant, the county offers $3 million to compensate and mitigate the city, Syracuse Housing Authority and Southside residents.? ?The county pressures the Common Council with its compressed RTF schedule saying it wants to begin construction in October, 2001 not 2004. Again, the public asks the Syracuse Common Council to vote ?No? because a search for a better alternative is still needed. 32 Midland Avenue Regional treatment Facilim Responsiveness Summary for Public Hearing, ihid, [chapter V, foomote 22], 14. 33 Onondaga County Legislature Resolution 00259, October, 2001, second paragraph. 3" ?Midland Avenue Regional Treatment Facility and Conveyances, Potential Storage Facilities,? Map by Environmental Engineering Associates (EBA), presented timing the 2002 negotiations. 3? County legislature?s Public Works Committee Minutes, September 3, 2000, 2. 3? Midland Avenue Redevelopment Initiative, prepared by Environmental Design a Research and Environmental Engineerhlg Associates, April 19, 2901, 6,7. ?New and Signi?cant? 16 The Common Council ?tables? voting on the intermtmicipal agreement. Using the ACJ clause cited in Chapter the Common Council?s Public Works committee asks for an evaluation of sewer separation possibilities in the Midland sub-basin. The committee also wants to explore combining the Southside and Downtown proposed 11?1st into one Downtown RTF, and to include research on other available swirler technologies. Some residents feel they are getting the least effective swirler system, the public domain USEPA swirler. June 2001: The mayor of Syracuse ?mds the Public Works Committee?s request and hires Clough?Harbotu Associates (CH) to do the study.37 August 2001: CH relies heavily on stormwater modeling and BEA cost estimating of the RTF. Using ?awed modeling and the low-balling cited in Chapter CH concludes that the football-?eld size ?El-swirler/chlorination sewage plant proposed for the A?ican-American block of Oxford-Blaine is the most CSO abatement solution. CH estimates that combining the Southside (Midland) and Downtoon (Clinton) RTFs would only cost about $5 million more? not the $15 million cited in the 1999 Altemative Site Evaluation Overview. The CH study provides the FCC with information about the sewer system and some cost details that it uses to prepose a viable alternative to the sewage plant. October November, 2001: I Northern Watertek Corporation (N WC) of Ontario, Canada proposes to the Syracuse Common an alternative to the Midland Avenue RTF. NWC concludes: an environmentally sound, practical and cost effective alternative to the chlorination/dechlorination plant at Midland Ave. exists, that will lower capital and operating costs. CI-I2M Hill, a global in?asu'ucture and environmental company, have agreed to partner with us on this project and would be otn- Project Leader as we move forward. - concept dies an early death. In November when NWC presents its concept to Onondaga County and its engineering consultants, Northern Watertek con?des to the POC that the county and its engineers are rude and dismissive 37 Mento, Frank, partner ofClough, Harbour at Associates, Te: Proposal to provide professional eugineerhtg sendces for a cost-effective comparison of the Midland Regional Treatment Facility and sewer separation of the service area, Letter to Anthony Ilacqua, City of Syracuse Department of Public Works, July 5, 200]. 3? ?Sewage Treatment Plant Report Issued,? press release issued by Matthew Driscoll, mayor of Syracuse, August 2001. 39 White, Jeffrey, President of Not-them Watertek, re: Northern Watertek C30 Abatement Alternative Update, Letter to city councilor Kate O?Connell, Public Works Committee chair, November 26, 2001. 17 September, 2006 about the concept. As late as March 2002, Congressman Walsh reports he is excited about this possible technology.40 During the 2002 negotiations, stosc declares that innovative technology is unproven, and therefore, tmacceptable. I The POC develops a (330 abatement alternative from both the Clough Harbour study and the May 2001 Onondaga County 080 Abatement Report The POC presents its proposal to the county legislature. The proposal consists of a combination of sewer separation (40% of the Sim-basin), the mile?long in-line storage as suggested by the county, and a pump station.? 0 The POC meets with Syracuse City Councilors describing CSO Abatement possibilities for the Southside. The Syracuse Common Council puts the intennunicipal agreement with the sale of the city-ousted parcel to Onondaga County back on the table. The council votes unanimously NOT to sell to the county the city?owed parcel on the residential block of Oxford?Blaine for the RTF. November 2001:. Since the county?s charter forbids it to take another municipality?s land through eminent domain, Onondaga County sues the City of Syracuse in federal court for obstructing its court-mandated ACJ project. The county asks the court to condemn the city-owned land at Oxford-Blaine for its proposed sewage plant. Federal Judge McAvoy tells the city and the county to sit down with stakeholders and try KT to resolve the issue through negotiation. b. The 2002 negotiations December 2001 August 2002: Negotiation Highlights Almost every week for two hours the NYSDEC facilitated meetings with all the parties in its Syracuse of?ce. December 2001: The Onondaga Nation and the Partnership for Onondaga Creek (POC) write the NYSDEC asking to be included as stakeholders. NYSDEC includes the Nation but NYSDEC doesn?t answor the letter.42 The POC calls regional NYSDEC director Ken and asks for an answer to the request. says the negotiations are closed meetings. The POC tell that some of its members will be coming to the negotiations ?0 Libbon, Marti, ?Rep. Walsh: Life give you sewage Post-Standard, Syracuse, New York, March 14, 2002. 41 "Position Paper on the Midland RTF An Opportuan for a Better Solution,? The Partnership for Onondaga Creek, October, 2001. ?2 Puchalski, Richard, Notice that the Parolersitip rot Onondaga Creek is an interested party in the upcoming negotiation, react to Steve Eidt, Water Quality Engineer for the nvsosc, November 30, 2001. - - ?New and Signi?cant? is Three POC members go to the ?kick-off? session at the Syracuse of?ce. tells us we cannot enter until he asks the others in the negotiating room. After 50 minutes tells us that we can enter but says only one of us can speak. After seeing the Onondaga Nations? chiefs speaking whenever they want, we decide to speak whenever we have something to say. never enforces his ?speaking rule.? The negotiations are closed to the press and no taping is allowed. The POC realizes that the county thinks it can ?buy? support for its RTF solution. We make it clear that we want a better CSO technology because the proposed Midland RTF is: stigmatizing, disrupting many people?s lives, 3> using chlorine, an unhealthy disinfectant, and undermining the prospects for the revitalization of Onondaga Creek. January 2002: The Partnership for Onondaga Creek and the Onondaga Nation give presentations about creek revitalization and the need to change the perception of Onondaga Creek ?our a sewer to a community asset. Both groups insist that any CSO abatement solution must work toward creek revitalization After a few negotiating sessions some participants voice concern about the summary notes because these participants don?t see their points represented. The NYSDEC discontinues its summary notes. In an effort to maintain accurate and detailed records for itself, the POC selects one of its delegation members to be a recorder. The Nation asks that the Downtown sub-basin be included in the negotiations because both the Southside and Downtown are on the same Main Interceptor Sewer (MIS). The MIS takes city wastewater to the metropolitan wastewater treatment plant (METRO). The cOunty redirects the negotiations so that only the Midland Avenue (Southside) CSO abatement project is discussed. moves a minor milestone, the acquisition of the city-owned parcel on Oxford- Blaine to April 1, 2002. Since the negotiations go until the end of August, he continues to move this milestone several times to make sure that the county doesn?t get ?ned. The county presents six options for the Southside: two RTFs, the POC sewer separation proposal, two storage options without disinfection and one storage option with disinfection.43 Since EBA draws up the list, all the options, other than the two RTFs, are rated as non-compliant or uncompetitive with the RTFs. The POC recognizes it is at a disadvantage without any independent technical assistance to evaluate these options. ?3 Onondaga County Lake Improvement Project. Midianrl Avenue Conveymceszegional Treaunent Facility Comparison of Five Options (Draft), ihid, [chapter 11], footnote 36]. 19 September, 2006 A POC member shares a home-made video of Southside?s residents giving their i opinions of the county?s proposed RTF. The residents talk about the new Southside housing initiatives and how a sewage plant will not help neighborhood revitalization or pride. . I NYSDEC asks the group to begin to think ?out of box? and to develop positive criteria for evaluating the various CSO abatement options. February 2002: The city hires EnSonrce as an engineering consultant to critically evaluate CSO alternatives proposed at the meetings. The POC tells EnSource that it is interested in underground storage tanks as laid out by Steams 8e; Wheler?s January 2001 memorandum. - A POC member complains to Monica Kresnik, Environmental Justice director, about the meeting facilitation The POC feels that the NYSDEC has a pro- county bias. In response, the NYSDEC asks the POC to include more Southside residents on its negotiation team. Four more Southside residents volunteer to join the POC delegation. March 2002: I The NYSDEC introduces Syracuse University Professor Neil Katz to the group as a . possible neutral party mediator. A few weeks later, the NYSDEC says that the state can?t ?nd the money to hire him. a After technology selection, the P00 asks that the group discuss jobs and community development for the Southside. - EnSource and EEA present two different concept designs for underground storage. EnSource presents three tanks with ozone disinfection for (330 volumes greater than the one-year storm estimating the annual 035M will be million. BEA present eight o??uline storage tanks without disinfection estimating the annual at $3.8 million??1 - seven times higher than EnSource estimates. a An ozone expert hired by EnSource presents this type of disinfection as beneficial and preferable over chlorine disinfection. Besides not creating harmful disinfection by-products like chlorine, ozone adds a bene?cial one, oxygen, which Onondaga Creek needs. MA says onone has not been proven effective with CSOs due their changing sewage content. According to the Spring Creek study mentioned ?4 Geisser, Donald, vice?president of Blasland Boos]: 3: Lee, re: Midland Avenue Conveyancesrf Regional Treatment Facility Option No. 6, Scattered Storage Altemative, Memorandum with attached Figure to Michael Cunningham, director of Lake hnprovement O?ice, March 21, 2002, Table 2. ?New and Signi?cant? 20 earlier, ozone is an e??ective On p. 5-13 of the 1991 Combined Sewer Over?ow Facilities Plan, MA and BBL stared? . ..ozone has proven to be an effective oxidant for CSO disinfection, however capital cost of the equipment and operational complexities typically render this alternative non Since the EnSource?s storage tank was designed for a one-year storm with back-to- back capability, disinfection would be happening when the content of the combined sewage would be mostly stormwater and its sewage content more predictable. Yet, NYSDEC supports position and rules that ozone dishifection will not be allowed claiming that ozone isn?t a proven CSO disinfection technology. 0 MA admits that its stormwater model for the Southside sub-basin is in error. The original Southside CSO estimate for its 080 vohnne to Onondaga Creek was 322 mgy. MA now estimates only 200 mgy a 38% decrease. - The negotiations break for three weeks for EA EnSource to resolve Od?cM differences and MA to study the carrying capacity of the Main Interceptor Sewer (MIS) to determine an}.r tie-watering barriers. April 2002: I MA runs the Onondaga Lake Bacteria model to determine the size for the Southside?s o?lline storage. The POC is unaware at that point that the Northside?s bacteria load is entered into the model, causing the Southside?s storage to be bigger than it needs to be. May 2002: The NYSDEC declares that a 1'7 mg storage tank without disinfection will be compliant with the Amended Consent Judgment (ACJ). I The county more than doubles the Downtown Clinton Street RTF project budget of $31.5 million to $65 million. Even though the county refused to have Donmtowners at the table, in the next few months the negotiations revolve only around cost estimates, invoking the need to save as much money as possible for the Downtown 030 project. June 2002: Ii EBA presents the cost estimates for an underground storage alternative. EnSource?s cum construction cost estimates are within 1% of EBA accepts EnSource?s 085M numbers for the underground storage option.? ?5 Izabela and Stinson, Mary, ibid, [chapter 111, footnote 24], 43. ?5 Combined Sewer Ovei?ow Facilities Pioo, ibid, [chapter 111, footnote 14], 5-13. ?7 EnSource Cost Analysis, Midland arr fAltematives, mom 2] September, 2006 July 2002: The group agrees that it will limit the evaluation to three options: the original 4? .. swirler RTF and large conveyances, 2-swirler RTF with off-line storage and large conveyances, and two underground storage tanks. The NYSDEC distributes a qualitative evaluation grid for each delegation to the negotiations to ?ll out udth thirteen commonalities? that the group developed the previous February: The solution must be enduring. It should provide for an edible, sustainable ?shery in the long term. ReducefEliminate toxics and pollutants in the Creek. The solution should be compatible with the concept of creek corridor restoration. A surface water evaluation and management plan should be performed for Onondaga Creek. Consideration should be given to additional separation andfor storage plus other technologies that are compliant. Minimize disruption during construction. Minimize temporary or permanent displacement of people. All grouPs support seeking additional non-local ?mding. Implementation-of the goals go beyond the responsibility of the County and the Sanitary District The solution should be compatible with economic development and neighborhood revitalization. The solution should seek to provide for neighborhood and community employmen?uainhlg. The solution will implement Urban Best Management practices. Vuvv Before the group can compile each delegation?s ratings and discuss the evaluation?s outcome, the county asks to adjoum the meeting. The reason the county gives is that it believes it can reduce the cost of the storage option. After a few weeks, the meetings resume. The county does not reduce storage?s cost estimate but instead, lowers the price tag of its ovm preferred option. The adjournment requested by the county successfully kills the qualitative evaluation process. NYSDEC never asks the group to fully evaluate the options using the commonalities previously agreed upon, even though the city?, the Nation and the POC are prepared for this qualitative discussion. Instead the group begins to argue about the bottom line. The city asks the county for the real annual cost to Consolidated Sewer District?s ratepayers, because this is the cost that the public will be concerned about. The county provides this information, which shows that over the first 18 years of operations, the undergound storage option is only $7 more per household or just 39 centsr?yr per household. 0 The county ?3 ?Table to Compare Options,? a qualitative evaluation grid created by the negotiating parties and distributed by the NYSDEC during the negotiations, one, 2002. ?9 ?CommonaIiu'es and Comparison of Options," the qualitative evaluation grid ?lled out by the city, 5? ?Comparison of the Midland Avenue Options on Rates,? ibid, [chapter foomote 34]. ?New and Signi?cant? July 2002. 22 doesn?t explain why the cost is calculated over 18 years, rather than over the 50-year life of the project. The FCC knows that an analysis based on the life of the project would demonstrate the cost effectiveness of underground storage. August 2002: The city and the POC host a Southside meeting to explain the bene?ts of underground storage over the sewage plant. They point out that even if the construction cost is more, it is cheaper in the long run because of its much lower The combination of of?ine storage, inline storage and sewer separation is added to the viable options. There is talk about sewer separation money from the Army Corps of Engineers (USAGE) if the city can match the funds. The city offers the county $2 million dollars and the city-owned parcel without charge if the county does the underground storage solution. The county asked Camp, Dresser and McKee (CDM), not EnSource, to audit RTF design. CDM audits the county RTF design and discloses that EEA uses a different, but more favorable, scheme in evaluating the annual of its preferred RTF. When EnSource uses the same scheme for storage?s estimate, it goes from $443,000 to $298,000 a $145,000 saving (see chapter Selfiserving Cost Estimating). The NYSDEC states that the group must ?nish negotiating by August 23 because Judge Thomas McAvoy must decide on the land issue. The group agrees to work all day every day for the week of August 19. The second to last day of the negotiations, deputy county executive Ed Kocbian reveals to the group that there is another land issue. Now, the county is not only talking about the Oxford-Blaine parcel but the Downtown parcel where it wants to build the Downtown CSO project This surprises some people at the table because the previous January the county had limited the talks to just the Southside?s (Midland) CSO project. The negotiations break down. On what turns out to be the last day of NYSDEC?facilitated negotiations, the NYSDEC draws up a consensus agreement?, but neither the city nor the county are at the table. It becomes apparent that Mayor Matthew Driscoll and County Executive Nicholas Pin-o are negotiating behind closed doors, leaving out those who had negotiated for nine months. The POC sits at the table and reviews the NYSDEC draft agreement just in case the principals, the county and the city, return to the table. 5? ?Proposed Agreement, Midland Avenue Mediation," dra?ed by the moose and presented the last day ofthe negotiations, August 28, 2002. 23 September, 2006 The main points of this agreement are: Cmrently Estimated Total project Cost: $78,456,250 The option endorsed here incorporates conveyances, a large storage facility a?or near Blaine and Oxford and sewer separation for the Newell St. and the Brighton Ave. areas. City of Syracuse will provide $2,000,000 towards the sewer separation portion of the project. . I - The USAGE currently has approximately $43 5,000 in unmatched ?rnds available for use through the Onondaga Lake Partnership monies. The three groups who sit on the executive board and are a party to this agreement will seek these monies to include as part of the design monies for the Midland Ave. project. This requires a $185,000 match. The City, County and State agree to make federal funding of the sewer separation project a high priority for the OLP [Onondaga Lake Partnership], The inclusion of the City in this project does not make them a party to the Federal Amended Court Judgment. The City will be required to have a written agreement which binds them to participate in this project to allow the DEC to approve a revised facilities plan for the Midland Ave. project. The City agrees to provide the County with the necessary city-owned properties to enable the construction of all facets of the Midland project de?ned in this agreement. I The city and the county do not return to the table. Over a year later through the 2003 Midland Avenue Facilities plan, the POC reads about the deal the county was offering the city behind close doors. For the county to agree to give up its proposed RTF and build the storage option, the county requires that: 2 l. The City contribute $7.975 million for the sewer separation at CSO basin 067M715. 2. The City contribute the required City-owned properties for the Midland Avenue and Clinton Street CSO abatement projects. 3. The City support construction of an RTF project for the [Downtown] Clinton I Street CSO abatement project. The city doesn?t accept the terms, and nothing happens. 5'2 Ma?and Avenue Regional Treannent Facility and Convqancer, Facilities Plan Amendment, ibid, [chapter footnote 2-4. ?New and Signi?cant? 24 e. Judge Thomas McAvoy?s decision November 2002: Not in August, but after the November elections in which county executive Pirro wins his term, New York?s Northern District Federal Judge McAvoy rules that the city-owned parcels for these sewage projects can be taken by the county. litecember 2002: The city puts in an interlocutory appeal to Judge McAvoy?s decision. May 2003: Judge McAvoy rules against the interlocutory appeal, and does not allow his decision to be reviewed by the Federal Second Circuit Court of Appeals. July 2003: The city puts in a full appeal to the Second Circuit Court of Appeals. September 2004: The Second Circuit Court hears thecity?s and the county?s oral arguments. Currently: The 2mi Circuit?s September 215? decision on Midland (see Addendum A, City of Syracuse v. Onondaga County, 04?0718-cv) moves the case back to the New York Court of Appeals. The 2'1d Circuit did not make a ruling, which leaves this complex legal issue undecided. d. The county?s unilateral decision: November 2002: The county picks the 2-swirler RTF option from the negotiations, the option that supposedly is $20 millions cheaper-to-build than the storage alternative. The county ignores the cheaper-to?run non-chlorine storage alternatives preferred by the city, the Onondaga Nation, ASLF and the Partnership for Onondaga Creek. At the same time, the county withdraws its $3 million offer to improve the neighborhood around the proposed sewage plant, saying that ?neighborhood representatives could not decide what improvements they want near the plant.?53 The city councilors, the mayor, the affected residents and the FCC are outraged. The FCC feels betrayed by the process, and sickened by the county?s bullying. February 2003: The county make changes to its proposal in order to push the RTF 160 feet away from the homes on But the negatives: a larger above? ground footprint, the partially chlorinated sewage discharges to the creek, and the swirler?s costly still convince the city, the Onondaga Nation and the POC that underground storage is a far better alternative, ?scally, socially and environmentally. July 2003: The county submits a new facilities plan to the NYSDEC for approval.54 The plan includes 1,000 feet of in-line pipe that was part of Phase Including this 1000 ft of 12-0 diameter pipe in Phase II pro-erupts other less disruptive options for Phase such ?3 Weider, Mark, ?County Drops Offer for Midland Improvement.? Syracuse, New York, November, 2002. 5? MfdfandAverme Regional Treatment Facility and Conveyances Facilities Pier: Ament?nenr, ibitl, [chapter foomote 25 September, 2006 as sewer separation or an off-line storage tank. This inclusion of 1000 of pipe repeats the Phase I tactic of putting a pre-emptive pipe in the ground. e. The POC works to find $20 million more for the storage option: April - December, 2003: Using New York State?s Freedom of Information Law (FOIL), the POC asks all elected representatives if Onondaga County ever attempted to raise money for the supposedly $20 million gap between the sewage plant and storage. From various replies, there isn?t any evidence that the county even tried. The POC collects 1400 local signaturess5 on a petition asking our elected representatives to ?nd the political will to ?nd underground storage for Midland. Using US mail or a meeting, the POC delivers the petitions to US Senators Clinton and Schumer, Congressman Walsh, State Senators DeFrancisco and Hof?nann, State Christensen and Mayor Matt Driscoll. The POC writes ?ie Army Corps of Engineers teen)? and the NstEc? about using a brown?eld site for an underground storage tank. This site, at the corner of Chester Street and Bellevue Avenue, had been chosen as a possible underground storage site timing the negotiations. The ACE can federally ?nd a brown?eld redevelopment project if the ACE project stops pollution to a waterway. The NYSDEC must also authorize land use for the project by declaring it environmentally sound. The POC estimates that this project can bring an additional $10 million to the Lake Cleanup?s ?nancing. Both, the Mrsnao58 and the declare that if the city and county approve the project, their agencies will get involved. . NYS Joan Christensen sends the POC a notice of a state grant application for sewer separation projects. The POC asks city engineering to price the sewer separation piece for the storage option discussed in the 2002 negotiations. This sewer separation project will be approximately $10 million more. The POC asks Southside county legislator Althea Chaplin to submit two resolutions: one for a storage tank at Chester and Bellevue and the other for sewer separation at Brighton Avenue. The resolutions? show how the county can fund storage through these two projects, bringing $20 million more into Lake Cleanup efforts. 55 ?Fund Underground Storage for Midland!? POC Petition, 1400 signatures collected between April and September 2003. 55 Lane, Aggie, re: Brown?eld redevelopmentt'storage tank, Letter to Ron Guido, USACE project manager, May 9, 2003. 57 Lane, Aggie, re: Browa?eld case 3000-24-7, Letter to Bradley Brown, NYSDEC project manager, May 30, 2003. 5? Broom, Bradley, NYSDEC project manager, re: Former Brown Manufactln'ing Site, Syracuse, Onondaga County Site No. 3-000244', Letter to Aggie Lane, POC, June 27, 2003. 59 Hall, Je?irey, Lt. Colonel USAGE, re: potential role of USACE in redevelopment of brown?eld sites, Letter to Aggie Lane, POC, May 19, 2003. 6" County legislature Resolutions, moved by county legislator Althea Chaplin, November 3, 2003. ?New and Signi?cant? 26 u) The county legislature chair sends the resolutions to the county?s Water Environment Protection committee. The committee and county legislature chair decide to restart talks with the city. The POC is not invited to the intermunicipal talks. There is no progress making underground storage a reality for the Southside. The talks eventually become a way for the city to negotiate with the county about the Downtown (Clinton Street) CSO project. The city hires CHZM Hill as its engineer to design a storage option for Downtown. The Downtown talks also break donor (see section Syracuse?s Downtown 080 Projects below). I. The Title VI claim I August 2003: The POC approaches Syracuse University Public Interest Law Firm (PILF) about helping it research and possibly ?le a Title VI to the O?ce of Civil Rights (OCR), since federal funds will be funding the proposed Midland Avenue RTF. December 2003: The NYSDEC approves the county?s Midland facilities plan giving the POC a trigger point for a Title VI claim. April, 2004: For the POC, the Syracuse University PILF ?les a Title VI administrative complaint against Onondaga County and the NYSDEC, because both Onondaga County and did-not provide ?adequate and effective public participation opportunities.? impose ?disparate and adverse impacts on the predominantly A?ican?American community in which the RTF is sited.? I Have rejected a feasible, less alternative. May, 2004: The county opens the bids for the the accepted bid is $20 million more than the estimate that EEA submitted to the NYDEC. When asked why, the county responds that steel prices went up. According to the McGraw-l-Iill Construction website article, the surge in steel prices will affect construction prices at most 8%62, not 36%. Since the $20 million gap is the county?s rationale for rejecting the underground storage option negotiated in 2002, PILF writes OCR providing this new disturbing infonnation. Also in the submitted facilities plan, EEA changes the 2002 negotiations and storage?s estimates: unaccountany decreasing the from 3712,00 to $525,000 and increasing the storage?s (Web! from $298,000 to $413,000. Since low annual operating costs are a powerful rationale for the storage option, the POC ?1 Title VI Administrative Complaint on Behalf ofthe Partnership for Onondaga Creek with Executive Summary, Syracuse University?s Public Interest Law Firm, April 9, 2004. ?3 Grogan, Tim. ?Higher Steel Prices Could Push Overall Building Costs Up Engineering New Record at April, 5, 2004. 63 Lowry, Alma, Director of Syracuse University's Public Interest Law Firm, re: Additional Information Regarding Title VI Complaint Filed by the Partnership for Onondaga Creek, Letter to Yasmin Yorker, Of?ce of Civil Rights, June 11, 2004. 27 September, 2006 feels betrayed by the county?s numbers game?. (see documentation in chapter 17!. Self-Serving Cost Estimating.) June 2004: After almost three months the OCR acknowledges the POC claim.65 August 2004: PILF responds to a request from OCR to clarify the role of the NYSDEC in this Title VI claim. September 2004: OCR partially rejectsfaccepts the claim for investigation. I OCR rejects for investigation the allegation that NYSDEC and Onondaga County did not provide for adequate and meaningful participation. OCR rules that last alleged discriminatory act was not discriminatory and that the other acts were outside of the ISO-day ?ling window. - OCR accepts for investigation the allegation that the county?s preposal and the approval of that proposal to build and operate the Midland Avenue RTF in a predominantly A?-ican-vAmerican community are discriminatory acts. September 2004 March, 2005: PILF and POC ask for two things: 6? I USEPA freeze federal funds for the Midland project until an investigation or a resolution is found. The USEPA refuses to freeze the funds. I the 2002 parties return to the negotiating table to reach an agreement on the less discriminatory altemative of off-line underground storage. March 2005: The OCR dismisses the Title VI complaint. In 1999 the EPA issues :1 Finding of No Signi?cant Impacts (FONSI) based on its own Environmental Assessment (EA .63 However, the EA draws all its input from the cormty?s Environmental Information Document (BID). This dismissal is no different. The OCR decides not to visit Syracuse for an on-site investigation. Strangely, the OCR views the county and its consulting engineers as credible sources, rather than self-interested parties. May - June 2005: The FCC seeks to meet with the OCR regarding its limited investigation and the grounds for its dismissal of the Title VI claim.6g 6" Midland Avenue Regional Treatment Far:le and Conveyances Facilities Plan Amendment, ibid, [chapter Ill, footnote Table 2-2 'Most viable Alternatives Estimated Costs. 65 Higginbotham, Karen. Re: Noti?cation ofReceipt of Administrative Complaint, Letter to Alma Lona-5i, Esq, June 24, 2004. ?56 Higginbotham, Karen. Re: Partial AcceptanceiPartial Rejection, Letter to Alma Lonny, Esq., September 20, 2004. 5" Lowry, Alma, Esq., re: Midland Avenue arr, Complaint No. can-04.9.2, Letter to Yasmin Yorker, OCR, September 29, 2004. ?3 Higginbotham, Karen, ibid, [chapter 111, foomote 53]. 69 Lane, Aggie, re: Dismissal and questions for a meeting between OCR and the P00, Letter to Yasmin Yorker, OCR, June 11, 2005. ?New and Signi?cant? 23 July 2005: The FCC meets the OCR in NYC at the region of?ce. Also present are Peggy Shepherd of WE ACT, Samara Swanston of Sierra Club, Jeff Jones of Environmental Advocates of NY, Kathy Curtis of Citizens Environmental Coalition, Dan Burton of Senator Clinton?s o?ice, attorney Thane oyal and organizer Katie Nadeau representing the Onondaga Nation, and Onondaga County Legislator Althea Chaplin. The POC and allies request clear measures for disparate and adverse impact, and a list of successful Title VI claims. The OCR offers to accept ?new and signi?cant? information regarding the POC Title VI claim. [This document is part of ?new signi?cant? information] 2. Phase - The Midland Pipeline March 2004: At a Southside Syracuse United Neighbors? meeting, residents ask the county for the route of the pipeline. The county says it doesn?t know the route because it hasn?t designed the pipeline yet. November 2005: County Legislator Althea Chaplin requests a Midland community meeting with the Lake Cleanup project head, Richard Elander regarding the 111 and the mitigation mentioned in the Environmental Assessment. In November 2002, the county executive withdraws $3 million ?nm this negatively impacted African- American community. The Midland community believes that this is reprisal for ?speaking up? and participating in the C80 abatement technology selection. One POC member remembers how a Southside minister warned about ?speaking up? because the county will win and ?give the community nothing.? The minister?s advice was to go along with the county?s plan and at least ?get some goodies? for the community. Elander accepts the invitation. He brings to this community meeting a map of the pipeline route which indicates in red the ?ve properties that the county plans to take, and in white, 60 properties that will be affected because they are within 75 feet of the construction perimeter for the large pipeline. Blender tells the residents that the county has looked at an alternate pipeline route because it was shorter. But since this new route would tunnel under homes the county has ruled it out. The county is installing 1000 feet of Phase pipeline in Phase II, hereby pre-empting any serious consideration of other less dismptive options, such as sewer separation andfor an off-line storage tank. Also, Elander says that if the community organizes itself the county will look at mitigation around jobs and community development.Tm July 2006: The county legislature?s Water Enviromnent Protection committee lists an additional seven properties along the pipeline to be taken through eminent domain -- ?ve are city plots and two are private homes. 7? Midland community meeting at Tucker h?ssionary Baptist Church with Richard slander, video ?lm by Syracuse University Communication students, November 22, 2005. 29 September, 2006 Hussy" 3. The Cost Scandal and Call for an Audit May 2006: The front-page headline of the May 17 Syracuse Post-Standard declares ?Midland Plant get Pricier.? The $55 million ?cost-effective? Midland sewage plant, selected to save the ratepayer from the pricier $75 million. underground storage option, is now going to cost over $122 million - over twice the estimates the county and EEA sent to the NYSDEC in the 2003 Midland Avenue RTF and Conveyonces Facilities Plan. Five days later on May 22, the Post-Standard prints an article ?Why Did Plant Cost Rise?? The paper lists the county?s various explanations, including inflation, tracked from 1996, for the $67 million over-run. As detailed in chapter HI. The Execution of?ce Section 4, ?Self-Serving Cost Esthnating,? ?iese reasons lack credibility. June 2006: On June 9 the P00 writes New York State comptroller Alan Hevesi asking his o?ice to audit the cost estimating practices of the county?s engineering ?rms.? The POC copies local, state and federal elected representatives for Onondaga County on the Hevesi letter and asks each to support an audit. State Senator David Valesky and State Joan Christensen write ajoint letter of support. NYS chair of the NYSDEC Assembly committee Thomas DiNapoli and Syracuse Common Council President Bea Gonzalez also send letters of support. July 2006: On July 5, POC members and supporters address the county legislature at the .K public hearing on the ?mding of Midland sewage plant over-run. Speakers ask the county to do its own independent audit before it votes to fund $50 million more.? The POC proposes a resolution through the Southside?s eotuuy legislator Althea Chaplin."3 The legislature chair sends the resolution to the Water Environment Protection (WEP) committee for approval. At that same session, the Legislature votes to fund the over-run. but the vote to authorize the local bonding fails. Authorizing local debt needs a two- thirds majority. Voting as a bloc, the legislature?s minority votes against the authorization. The Republican majority usually wins these votes because it holds a two- thirds advantage over the Democratic minority. At this session one Republican legislator is absent. In August, the legislature will vote on the authorization resolution again. POC members attend the WEP committee to hear the discussion on the resolution for a county-sponsored independent audit. The county comptroller says that there is no need for an audit because the increase can be explained by in?ation. A committee member asks for a cost matrix provided by the county comptroller and the engineering ?rms showing the sewage plant cost estimates in 1998, 2002, 2004, and 2006. Additionally, the member wants the county to include in the 2002 column, cost estimates for the 1" Lane, Aggie (POO), re: Audit Request, Letter to NYS Comptroller Alan Hevesi, June 9, 2006. Comments given at the Cotmty Legislature Hearing on ?mding the Midland Avenue cost over-run, July 5, 2006. 7'3 Conny Legislature Resolution prepared by the POC and introduced by county legislator Althea Chaplin, July 5, 2006. ?New and Signi?cant? 30 alternatives to the sewage plant. Anticipating an answer from this matrix, the WEP committee tables the independent audit resolution. 011 July 6, POC members visit Winthrop Thurlow, the local representative of the State Attorney General. Winthrop tells POC members that the of?ce can investigate the over-rim for possible public fraud if there is hard evidence of wrong-doing. He says a state audit would be one way to get hard evidence. The POC collects about 700 signatures from county residents calling for NYS Comptroller Hevesi to conduct an audit. The POC mails a follow-up letter to Comptroller I-Ievesi.T4 August 2006: The county and its engineering ?rms provide a cost differential summary matrix".5 to the Water Environment Protection Committee members right before a revote on the additional $50 million ?inding. However, the county legislature, now with enough Republican legislators, passes the funding without even pausing to discuss the matrix." Comptroller Hevesi?s of?ce tells the Partnership for Onondaga Creek to contact its local of?ce to submit any additional material for an audit. The Deputy Comptroller writm State Christensen and State Senator Valesky indicting that their o?ice is assessing the situation. 7? 4. Summary The Midland Avenue RTF is a large, stigmatizing sewage plant that no Euro-American middle class or wealthy neighborth would tolerate. The county, EEA, MA and CDM ?gure out how to spare upscale and predominately Euro- American communities and their developent interests from disrupting, stigmatizing 030 projects. Hardening the Southside with the Northside?s sewage release is disparity. Only a?er there is an impasse over the city-owed parcel at Oxford-Blaine and Federal Judge McAvoy asks the county to talk with the city and affected stakeholders, does the community have a chance at getting a C80 project that is environmentally better and 7" Lane, Aggie (P00), re: Follow?up to Audit Request, Letter to NYS Comptroller Alan Hevesi, July 31, 2005. Midland Avenue Regional Treamient Facility (RTF) and Conveyance Project, 2002-2004 and 2004-2006 Principal Cost Differential Summary, County comptroller and county engineering ?rms, August, 2006. ?5 Matiani, John, ?County Oks sewage plant Syracuse, New York, August 2, 2006. 7? Letters from Comptroller Hevesi?s of?ce regarding the request for an audit, August, 2006. 31 September, 2006 socially tolerable. After the county ?crash the 2002 negotiations, the county unilaterally and grudgingly adds more storage to Midland?s plan and pushes the plant?s footprint 160 feet away ?om the homes on Oxford-Blante. Simultaneously, the county punishes the community by withdrawing $3 million to mitigate the adverse impacts of the Midland project on the community. Currently, as the Midland sewage plant?s project cost sky-rockets, low-income Southsiders are disproportionately and adversely impacted. Adverse impacts will be addressed in the next chapter, V1 Adverse Impacts. I ?New and Signi?cant? 32 D. Syracuse?s Downtown CSO Projects for the Clinton Street Sub-basin 1991 recommendations: 78 2-mirier facility ACJ CSOplan:79 2-swirler facility; sewer separation 2005 county prion.JIM 4~mvirler facility; dia. conveyances Demography: Syracuse?s Downtown community affected by the Clinton Street CSO Abatement - a 4-swirler/chlorination RTF and its conveyances - is an economically and culturally mixed community that spans two census tracts, 30 and 32. The combined African-American and Latino population for these nacts is 37.5 and 19.2 respectively. The percentage of families under the poverty line is 50.7% for tract 30 and 47.6% for tract 32. Across these two tracts, average per capita income ranges from $6,949 to $14,562. The city?s per capita average is $15,168 while its percentage of families under the poverty line is 27%. Census tract 30 has the Rescue Mission campus, and near the site of the RTF, census tract 32 has a low-hiccme high rise. Census tract 32 is also the home of vibrant Armory Square, a pepular shopping and dining district. (See chapter IV. Diversity, Table 11) March 2002: The county holds a public meeting about its proposal for an RTF in Downtown Syracuse. Its 2002 Clinton Street C30 Abatement Facilities Plan presents feasible CSO pn'ijects:31 A. Sewer separation B. Regional Conveyances and Treatment (with high-rate disinfection) using: 1. Vortex Separators; or - 2. Over?ow Retention Facility (ORF) Note: There is no mention of off-line storage tanks in this plan. The Midland 2002 negotiations and the underground off-line storage tank option will in?uence the 2005 Clinton Street Facilities plan. But, just like 2002 negotiations, the county and its consultants ?nd ways to discredit this option. September 2002: Citing a modeling error, MA increases the Downton CSO volume discharges by 58% - the volume goes from 142 Ingy to 225 mgy. As noted in chapter Section B. 2. ?Tlawed Stormwater Modeling,? MA says the Erie Boulevard Storage System (EBSS) interconnection explains the immense.32 The POC wonders whether the modeling of this connection is accurate for the one-year storm and long-term models. Again without independent auditors of the modeling, the county and its engineers can disqualify storage tanks, leaving only RTFs as a??ordable options. 7? Combined Sewer Over?ow Facilities Plan, ibid, [chapter to, footnote 14}, 5-42. 7" Amended Consent Judgment, ibid, [chapter n, footnote Appendix B, 7, a. 9. a? Clinton Street (190 Abatement Project Facilities Plan, ibid, [chapter Ill, footnote 18], Figure 6-2. Clinton Street cso Abatement Facilities Plan, ibid, [chapter 111, footnote 34], 4- 1. '2 Midland Avenue Regionat iteatment Facility and Conveyances, Facilities Plan Amendment, ibid, [chapter Ill, footnote Appendix 3, 2. 33 September, 2006 December 2002: The board of the Armory Square Association, an organization of residents and businesses of this downtown historic district and a major stakeholder in the i Downtown (Clinton) sub-basin, votes to discuss only mitigation, and not CSO technology with the cotmty. This is around the time that the county vindictiver withdraw its mitigation from the Southside community. January March, 2003: The City and county meet and start looking at a storage option proposed by the city for Downtown. The city hires CHZM Hill as its design consultant. Talks break down. June, 2003: The county legislature?s Water Protection Environment Committee defeats a motion to ?provide funds for engineering and legal fees, including studies, surveys and testing the site [the trolley lot proposed for the Downtown sewage plant]? 33. Committee members express concern about spending money designing conveyances that point to the proposed site before the issues concerning the trolley lot are resolved January April, 2005: The NYSDEC deesn?t make the February 2005 Clinton Street 030 Abatement Project Facilities Plan available for the public comment period ending April 28, 2005 for the revised dra? SPDES permit that includes Syracuse CSO [ong- Term Control Plan. Once again, the public is denied the tools it needs for meaningful scrutiny of, and input to, the permit. (see POC November, 2005 submission regarding State Pollutant Discharge Elimination System (SPDES) Discharge Permit 002 7081). May 2005: After the comment period is over, the NYSDEC ?nally makes the February 2005 Clinton Street 080 Abatement Project Facilities Pian available to the public. June 29, 2005: The Armory Square Association hosts a public meeting on the Downtown (Clinton) CSO Abatement plan. The Association invites Onondaga County, the City of Syracuse, the Onondaga Nation and the POC to present their views on the 2005 Clinton Street C80 Abatement Facilities Plan. The FCC and the City propose alternatives to proposed 4-swirler RTF and its conveyances. The POC distributes a brochure detailing its alternative.34 At the meeting the district?s County Legislator Sam Laguzza states that he will introduce a resolution to the county iegislamre examining other 080 control possibilities.? The resolution never is proposed and the POC eventually ?nds out that Laguzza was told it was too late. Once again, the county communicates ?it?s a done deal? and there will be no discussion about technology. ?3 Minutes, Onondaga County?s Environmental Protection Committee, July 15, 2003. ?4 ?Water Quality-based Opporttmities for Armory Square,? POC, June 2005. as Weiner, Mark, ?Armory meannent plant discussed.? Syracuse, New York, June 30, 2005. ?New and Signi?cant? 34 August 9, 2005: In the county legislature?s Water Environment Protection committee: minutes, the Director of the Onondaga Lake Cleanup Project and Commissioner of the Water Environment Protection Department, Dick Elander, advises?? .. .that on the Clinton?I-Iarbor Brook [DoumtownIWestside]CSO Projects they have received and reviewed the proposals. Contracts will he signed with EEA to do the design of the Harbor Brook RTF and Clinton. Plus they are only awarding preliminary work on Clinton. The design of the conveyance system has been awarded to for Harbor Brook and Clinton. They have not included construction management and will save approximately $10 to $12 million. November 29, 2005: After CDM and EEA receive design contracts for Clinton Street and Harbor Brook RTFs and conveyances, the county engages the public for comments at its formal public informational meeting. The public submits comments. Many in the POC wonder ?why they should bother.? Judging ?-om past history the county will not change its technology or even combine its technology with others, such as doing more sewer separation in lieu of some of the large conveyances. January 2006: The county sends to Clinton Informational Meeting commenters the Responsiveness Summary for the Clinton C30 Abatement Facilities Plan (RS). 1. When comments suggest sewer separation projects as ways to: eliminate some stormwater from the Downtown sub-basin, I renew pipes, or comply with an project to separate district of C30 037, the county dismisses these suggestions. It states that: a) these projects aren?t cost- effective, 13) they are too disruptive, and c) the resulting stormwater discharged to Onondaga Creek is too polluting. Yet, the county separated the city?s West Street sewer and small sewer districts in the Midland basin: spending money, disrupting the area and sending the stormwater to the creek. In the May 2004 Sewer Improvements Newsletter, 3? the county asserts: .. separating sewers in your neighborhood will help to improve water quality in Onondaga Creek and Onondaga Lake And a picture caption in the same newsletter boasts: Sewer separation in the Brighton Avenue area during 2003 has already led to improved water quality in Onondaga Creek and Onondaga Lake. 3? Minutes, Onondaga County Legislature?s committee of Environment Water Protection, )1th 9, 2005, 2. ?7 Sewer Improvements Newsletter, Onondaga County Department of Water Envimnment Protection, May 2004. 35 September, 2006 It can?t be both ways: a good project when the county wants to do it, and a bad project when the public suggests it. A concern: since the county and the city are at loggerheads regarding the CSO technology and the Downtown site selection, the FCC wonders whether the county will not do any more sewer separation because the lateral sewers are the-city?s responsibility, not the county?s. 2. The POC asks the county about using the under-utilized Erie Boulevard Storage System (EBSS) to store Downtown?s (3305. And as noted in chapter HI. Section 3.2. ?Flawed Stormwater Modeling,? the county asserts that the EBSS doesn?t have adequate capacity for additional CSOs. Using again NYS Freedom of Information Law, the POC asks for the 2005 EBSS quarterly performance reports. After receiving the 2005 quarterly reports in which the county still reports that the EBSS has never over?owed in its three years of operation since its upgrade, the POC concludes there is available capacity in the EBSS for Downtown C803. 3. The POC questions the modeling for the Clinton basin and the 58% increase to the basin?s annual CSO volume discharge (pie-abatement) from 142 to 225 mgy. MA responds that the short-term model sizing the one-year storm at 12.6 mg is correct, but the long-term model for estimating the annual basin CSO discharge leaves out the EBSS connections. The POC wonders why MA still includes those EBSS connections in the Downtown CSO volume since the EBSS upgrade ?xed the problematic connections. (see chapter V. Section B) February 23, 2006: Even though the EEA and CDM have the design contracts for the RTF and conveyances, Onondaga County holds the mandated but pointless public hearing on the C30 long-term control plan for Downtown?s most thriving section, Armory Square. The Onondaga Nation and POC members present their comments.? April 2006: The county sends another Responsiveness Smnmary?r the Clinton CSO Abatement Facilities Plan (RS) to those who attended the February, 2006 public hearing. In the;ng Torn Seals, the city councilor for the Midland and Downtown basins, states that he is: concerned that Midland area didn?t get a mitigation package that was on the table and now the County is talking to Armory Square about a parking garage. Wants some concrete mitigation at Midland. [County?s] response: - In addition to reducing the size of the aboveground portion of the Midland RTF, placing it further ?'om proximnte residences, and increasing storage capacity at Midland, the plans for the Midland CSO Facility include signi?cant landscaping including tree plantings and lighting around the facility a?er construction is completed. Other ?3 Lane, Aggie, comments read at the public hearing on the Street CSO Abatement Project, February 23, 2006. ?9 Responsiveness Summary for Clinton 080 Abatement Facilities Plan and Environmental Information Doctmient, Onondaga County Department of Water Environment Protection, April 2006, p6. - ?New and Significant? 36 restoration efforts will also be carried out where the County has disturbed the area due to construction. The county?s response to Councilor Seals? question doesn?t refer to mitigation but only to what the county must do after it has disturbed an area. Generally, the county responds positively to mitigation questions concerning the proposed Clinton project but not to comments asking for a change in the teehnology or the swirler project itself. Here is a sample of the mantra that the county has given for years whenever the public asks for a better C30 abatement project: The proposed Clinton Street CSO Abatement Project will improve the environment and result in a cleaner creek and harbor that will encourage future development along the creek as well as the Syracuse Inner Harbor. August 1, 2006: The county legislature first holds a public hearinggo and then approves resolutions to either condemn or buy land needed for the Downtown RTF and its conveyances. On-going: With the Circuit?s recent decision on Midland, (see Addendum A, City of Syracuse v. Onondaga County, 04-0718-cv) it cannot be assumed that the county has the right to condemn city owned land. This issue is being brought back to the NY Court of appeals. Downtown Summary Despite the county calling the Downtown facility an Facility, it has very little storage. It is primarily a treatment plant. The RTF and its conveyances store only 29% of Clinton Street?s one-year storm, making it the most polluting RTF design to be submitted to the NYSDEC for approval. According to MA, Downtown?s one-year storm is 12.6 mg. The RTF will only store 3.7 mg and utter that wili start discharging combined sewage into Onondaga Creek. MA predicts that the RTF will discharge 118 mgy into Onondaga Creek and its discharges will be full of harmful chlorinated?by- products. Additionally, since the proposed Clinton RTF will be accepting at twice the rate of the Midland RTF 755 cubic feet per second (cfs) compared to 336 -- and has less than halfthe available storage of the Midland RTF, it will also be diverting untreated combined sewage into Onondaga Creek right after the one-year storm mark. Since the Midland Avenue RTF has a 2.5 mg storage tank upstream of the RTF, MA estimates its ?rst untreated discharge will be at the 2-year storm mark. In the 2005 Clinton Street CSO Abatement Facilities Plan EBA recommends downsizing the 4- swirier RTF to a 2-swirler plant by building an upstream off-line storage tank. The reconunendation will add 3.5 mg of offiline upstream storage. The storage will slow the ?ow to 378 and reduce the number of chlorinated over?ows in half - from 18 to 9. 9? Lane, Aggie, Comments presented at County Legislature hearing on Armory Square properties, August 1, 2006. 37 September, 2006 But EBA rules out this approach because it costs more than the proposed 4-swirler RTF. Yet, in the 2003 Mdland Avenue RTF and Conveyoneas Facilities Plan, the 2-swirler i RTF with upstream storage costs less than 4-swirler Midland RTF. Without being con?rmed by an independent auditor, these cost estimates lack credibility. Except for off-line storage tanks, MA generally uses a one-year)? 90? percentile storm to size all other CSO projects: RTFs, FCFs, conveyances and the EBSS upgrade. BEA removes o?-line storage Options by applying the back-to-back storm ?rule,? 48-hour de- watering rule, bacteria modeling and cost estimating. ?New and Signi?cant? 38 E. Syracuse?s Westside CSO Projects for the Harbor Brook Sub-basin 199i recommendations-9? mo I-swirler facilities (:30 plan-5'2 Harbor Brook in. Water (demo) 2004 county plan: two 2-swnler facilities; ?ve 93 1.5-4.5? din. coinlielectriciansW Demography: Upper, middle and lower basins make up the Harbor Brook drainage area; these basins stretch across a varied Westside community. The community a??ected by the Harbor Brook CSO projects ?ve ?oatable control facilities and two facilities and their conveyances - is culturally mixed and of low to medium income. One of the sewage plants proposed for Amy Street is in census tract 38, between Delaware Elementary School and Fowler High School. Combining the African-American and Latino population, this tract has a 34% minority population with a per capita income of $10,535. Its adjacent census tract, tact 40, just a block stray from the Amy Street RTF, has a combined minority population of 61%, with a per capita income of $9,927, and with 52.9% of the families below the poverty line (see chapter 1V. Diversity, Table 11). Syracuse residents regard the Westside as the Latino side of town. It is home to three bi-lingual (Spanish-English) elementary schools. According to the 2003-2004 Syracuse City School demographics for the Delaware Elementary School,95 the school emolls 642 students with 233 Hispanicilmmo, 205 BlacklA?ican Arnerican, 32 Asian, 9 Native American, and 108 White. These statistics do not re?ect the general population of Syracuse which has a total 12 enrollment of 21 ,235 of which only 1,818 are Hispanic, with 5% listed as Limited English Pro?cient, and 53% eligible for Free Loosen.96 Delaware is a struggling, elementary school; with 99.9% of its population eligible for the Free Lunch program and 30.6% provided Limited English Pro?ciency status. Fowler High School is also about a block away ?cm the proposed Amy Street sewage plant site. Fowler High School, although more representative of the Syracuse district 9' Combined sewer Over?ow Facilities Plan, ibid, [chapter Ill, footnote 14], 5-42. 92 Amended Consent Judgment, ibid, [chapter foomote Appendix B, 10. 93 Harbor Brook (:30 sacroiliac Prty'ect Facilities Plan, Ereceove Secretory, Brown a; Caldwell (formerly Ma?a 8; Associates), Docember 2004, 138?6, Table 138-1. 9" Responsiveness Summary for Harbor Brook Abatement Facilities Plan, Onondaga County Department of Water Environment Protection, November 2005, 3. ?5 2003-2004 Enrollment Analysis by sonic Background, ibid, [chapter IV, footnote] 96 New York State District Report Com Comprehensive Report, Syracuse City School District, 3m3i05. 97 New York State District Report Card Comprehensive Information Report, Delaware Elementary School, 3i03i05. 39 September, 2006 is currently under state review for ?unacceptably low student performance,? and is in jeopardy of state closure if its perfonnance does not improve this i year.99 - March 2002: The county presents The Harbor Brook CSO Abatement Facilities Plan to the public. In its section 3.4 Selected Treatment systems, MA states??m Based upon the assessments presented above, the following treatment processes have been retained for further evaluation and comparison to the HB IWS {The Harbor Brook In-Water System] and sewer separation: Screening, where disinfection is not required, ORF [over?ow retention facilin with in-line storage and high-rate disinfection, Vortex separators with in?line storage and high-rate disinfection, Off-line storage at the Metro Tertiaries [main sewage plant?s wastewater settling tanks]. Note: As in the 2002 Clinton Street Abatement Facilities Plan, off-line tanks in the sub- basin are not considered. MA considers tanks in the 2004 Harbor Brook CSO Abatement Facilities Plan mainly beoause of the e??orts to ?nd better CSO alternatives to solider/chlorination facilities. January - April 28, 2005: The Harbor Brook CSO Facilities Plan (Westside) is not available to the public for commenting on the Draft SPDES permit. The draft permit . includes the Syracuse cso Long-Term Control Plan. The Poc requests the facilities -. U) plan; NYSDEC water quality engineer Steve Eidt says it?s not available for distribution even though the facilities plan is dated December 2004. August 9, 2005: Before the formal state-mandated public sessions on the 2004 Harbor Brook CSO Abatement Facilities Plan begin, the county awards ERA and CDM the design contracts for the RTFs and conveyances, respectively. September 14 and 15, 2005: The county holds public informational hearings about its CSO abatement proposal, at two different locations in the Harbor Brook?s upper and lower basins. Very few people attend. The public has learned that it is pointless to make suggestions to modify the proposed CSO technology. December 6, 2005: The county holds a public informational meeting followed by a public hearing on the Harbor Brook (ISO abatement plan The county proposes two RTFs with conveyances and ?ve ?oatable control facilities. One of 9? New York State District Report Card Comprehensive Information Report, George Fowler High School, 3/03/05. 99 Nolan, Maureen and Pierce, Frederic, ?leaders: We Must Help Schools, State orders Shea closed, puts two more 1West Side schools on watch list.? PosteS'tantlara?, Syracuse, New York, January 21, 2006. Harbor Brook (:30 Abatement Facilities Plan, More Associates, March 2002, 3-23. Minutes, ibid, {chapter V, footnote 36], 2. - ?New and Signi?cant? 40 the sewage plants is on Amy Street between, and close to, Delaware Elementary School and Fowler High School. . The Harbor Brook sub-basin, where some of Syracuse?s poorest live,?2 has essentially the same modeled CSO discharge volume (me-abatement) as the Northside. Harbor Brook is 139 mgy and the Northside is 135 mgy. January 6, 2006: During the comment period on the 2004 Harbor Brook C30 Abatement Project Facilities Plan, the Onondaga Nation calls for a full Environmental Impact Statement (EIS) due to the demographics and the county?s track record with the Midland Avenue RTF. Re5ponding to the Nation, the county dismisses the need for a full E13103. Basing this dismissal on section 3.1.5 of the Dra?? Environmental Information Document (EID), the county states: that the demographics and economics of the Harbor Brook area are comparable to the demographics and economics of the City of Syracuse as a whole. As such, there is no racial, ethnic or socioeconomic group that would hear a disproportionate share of the project impacts. For the EID, MA uses four Westside blocks of three census tracks and averages them and then compares these averages to a citywide average. MA ignores the fact, however, that the Amy Street RTF is surrounded by some of the poorest blocks in the city, and that these blocks are heavily Latino. Somehow MA doesn?t count the Latino population in the BID Table 3-1 .104 By averaging the data from three very different census tracts data and leaving out the Latino population, MA masks reality. The reality is: there is major economic disparity between the Westside?s Amy Street RTF neighborhoods and Northside neighborhoods that get small, non-disrupting CSO projects. The FCC and the Onondaga Nation submit comments critical of the proposed sewage plants. The POC calls for county and NYSDEC collaboration with which has proposed a subsm'face storage system (STS) and wetland abating (3305 in Harbor Brook?s upper basin. By capturing CSO 078 and 018 in the upper basin, this STS project can reduce the ?ow to the Amy Street facility by half. But the county mites: As addressed on pages 3 and 9, the County has been supportive of the planning and implementation of a pilot demonstration project to test the effectiveness of a sub-surface wetland treatment system on CSO 013 in the retention basin along Grand Ave. However, this is a small scale pilot project only. It is estimated that a wetlands treatment system Nolan, Maureen and Pierce, Frederic, ibid, [chapter v, footnote 95] '03 Responsiveness Summary for Harbor Brook CSO Abatement Facilities Plan, Onondaga County Department of Water Environment Protection, January 2006, 11. Harbor Brook (ISO Abatement Facilities Plan, Ecologic dc Brovm and Caldwell [forme?y December, 2004, 46 Responsiveness Snmmaryfor-Harbor Brook CSO Abatement Facilities Plan, ibid, [chapter V, footnote 103], 12. 41 September, 2006 designed to handle ?ows from C80 078 and 018 would require 34 acres. The retention basin itself is 35 acres and its primary ?rnc?on is stormwater retention to prevent ?ooding. This primary function could be compromised by use as a C30 treatment system. In addition, to meet ACJ requirements, the wetlands treatment would need to be augmented by ?oatables removal and disinfection.[emphasis added] The POC calls Dean Rick Smardon of SUNY-ESF, who estimates that the project would take only ?ve acres of the retention basin. February 15, 2006: Southside District County Legislator Althea Chaplin (also member of the WEP Committee), Harbor Brook District County Legislator Ed Ryan, County CSO Project Director John Clare, a POC member, and for a short while by phone, Dean Rick Smardon of SUNY-ESF, meet. They discuss the possibilities of upsizing the proposed ESF demonstration project: a biological subsurface treatment system and wetlands. The demonstration project expansion would abate naturally two combined sewer over?ows (CSOs) in Harbor Brook?s Upper Basin. Removing these two (3303 ?om the combined sewer system would allow for the downsizing of the proposed Amy Street CSO facility, a site close to two city schools andjust west of one of the city?s poorest neighborhoods. At the end of the meeting, county consultant: John Clare says it"s too late to incorporate the subsurface treatment system because the county engineering consultants were already designing the RTF s. February 23, 2006: Harbor Brook?s county legislator Ed Ryan calls the POC member and reports that the county says it is too late to make any changes to the Harbor Brook Proiest March 7, 2006: The Onondaga County Legislature votes a Negative Declaration for the Harbor Brook CSO abatement project. The Declaration states that this project will have no signi?cant adverse impacts on the basin. March 24, 2006: County legislator Ed Ryan calls the POC member and says that Dean Smardon went ?toe to toe? with a county engineer over acreage discrepancies and Smardon now accepts the cotmty engineer?s estimates. However, Dean Smardon tells the POC member that county of?cials, not an engineer, met with him and told him that they had an engineer calculate the acreage and that 34 acres was the engineer?s estimate. Dean Smardon didn?t have an estimate based on modeling to counter that. March 27, 2006: The POC member calls Ryan and asks him for the following: the engineering ?rm?s name, the calculations that produced the 34-acre estimate, a statement I on how the alleged 34 acres compromises the flood plain, and why the money needed to start the small demo project is still held up in the NYS Attorney General?s of?ce. Ryan says he will try and get the information requested. ?New and Signi?cant? 42 April 27, 2006: Ryan mails the POC a county memo explaining how MA came up with the 34-acre estimated? MA admits there is no rule of thumb for the sizing of wetlands for stormwater applications. MA uses the low-end sizing criteria for wastevvater, 20 acresimillion gallons. The POC ?nds the memo?s logic ?awed for several reasons: i There is no timescale for this estimate. Is that 20 acresfmillion gallon ?owing at a million gallons a day? CSOs have varying ?owrates because they are storm- related. Appendix of the A01 describes 050 projects that are sized for a one- year storm, which is a 2-hour storm with a 15-minute intensity. Sizing the wetland for a constant ?owrate is inappropriate. I The biological Subsurface Treatment System (STS) is not a wetland but a system of subsurface chambers ?lled with stones whose effluent discharges into a small wetland at the end of the retention basin for ?nal cleansing. 0 Even if the one-year storm of 1.7 mg for (350s 013 078 uses all 34 acres, rather than the ?ve estimated by SUNY-ESF, the resulting depth would be 1.7 inches. It is hard to believe that 1.7 inches would compromise the ?oodplain. - There arestrong 078 is mainly stonnwater coming from a golf course. In the 1991 Combined Sewer Over?ow Facilities Pietra1 07, the MA and BBL write: Stormwater Elimination: - A signi?th source of 'removable' stormivater exists in the upper portion of Harbor Brook Basin. The grounds of the Bellevue Country Club drain into the combined sewer system (subarea 078). It is estimated that this area represents as much as 200 acres or approximately 3% of the combined sewer system total acreage. The removal of this area would most likely require the construction ofa storm sewer from the ponds of the country club to the storm sewer on Merrill Road. The POC wonders if this stonnwater was removed rather captured. County Legislator Ed Ryan is currently researching this. Ryan also says that golf course is no more than 100 acres, not 200 as quoted above. Additionally, the Harbor Brook C30 Facilities Plan says 080 078 only drains 36 acres. The POC believes that the county is ignoring opportunities to eliminate stormwater and C805 ?'om the upper basin. The county further attacks the STS sa 'ng that it ?would need to be augmented by ?oatable removal and disinfection.?m According to Dean Smardon, the STS will Miller, Sue, deputy director of Onondaga Lake Improvement Project, re: Wetlands calculations for Harbor Brook, hiterot?ce memo to Richard Elander, Commissioner of Onondaga County department of Water Environment Protection. April 7, 2006. Combined Sewer Over?ow Facilities Plan. ibid, [chapter footnote 14], 5-63. Responsiveness Harbor Brook cso Abatement Faces-ass piss, ibid, [chapter V, footnote 103], 12. 43 September, 2006 have ?oatable control. Regarding disinfection, it is disingenuous for the county to state that this small project must have disinfection. [fall CSO abatement projects must have disinfection, the CPS and the EBSS upgrade would have been rejected. If, when the Onondaga Lake?s Class waters are tested, there are bacteria violations, the county must look for the real culprits the big ?oatable controls atFranklin Street or ineffective disinfection from the county?s RTFs, esyecially the Clinton Street 4-sudrler/chlorination sewage plant. a The STS, as estimated by SUNY-ESF, will cost about $900,000fmg' (milli0n gallon), while the county estimates that the Amy Street RTF and its CSO conveyances will cost about $4,600,0001mg. Treating these two CSOs naturally and cheaply will bene?t Harbor Brook, Onondaga Lake, the residents in Harbor Brook?s upper basin and the entire Consolidated Sewer District?s ratepayers. Westside Conclusion Even when a cost-e??ective project like this subsm'face treatment system can make the Amy Street CSO facility smaller, the county, its consultants and the NYSDEC have no interest in pursuing anything but a sudrler?chlorination facility. And the larger the better. ?New and Signi?cant? 44 x3) VI. Adverse Impacts A. Northside B. Southside C. D. Westside E. Summary September, 2006 This chapter looks at the adverse impacts of the implementation of Syracuse ?3 on dt?erem city sections. A. Northside 199! recommendations? Three I -swirler facilities; one 2-mirierfacility Executed ACJ CSO plan", one I?swirlerfaciligz; ?ve FCFs Ignored 2001 recommended remediation? one underground storage tank Almost no adverse impacts In the 1991 Combined Sewer Over?ow Facilities Plan, Moffa Associates (MA) and Blasland, Bouck 85 Lee (BBL) recommend four swirler sewage plants for the Northside. Before the county signs the ACT, all of the swirler plants, except the one in an industrial area, are downgraded to non-capturing ?oatable controls facilities (FCF). Especially notable is the Franklin facility downgrade. Initially, this 2-sudrler facility, proposed for Franklin Square?s entrance, is to capture the combined sewage of the Butternut, Burnet and James Street mink sewers. According to Camp, Dresser and McKee?s (CDM) 1998 value engineering report regarding this facility, disruption is a major concern. The county turns this 2-swirler plant into two small, barely noticeable, FCFs. Almost immediately after their construction, the quarterly performance reports show that these CF do not work well. In 2001 trying to rectify the facilities? problems, the engineering ?rm Stearns 8t Wheler (SW) suggests building an underground storage tank upstream in Schiller Park, next to upscale and exclusive Sedgwick Farm. SW recommends that this remediation project become a mandated project (see above chapter V. Disparity; Section A.) The county ignores recommendation. Once again, the county protects the Northside from adverse impacts and alloWs the Northside to continue polluting our waterways. Escalating Consolidated Sewer District rates See discussion below under Adverse Impacts: Southside. Combined Sewer Over?ow Facilities Plan, ibid, [chapter 111, footnote 14], 5-42. 2 Amended Consent Judgment, ibid, [chapter II, footnote Appendix B, 3,10,12. 3 Smithgall, Craig R, ibid, [chapter Iv, foomote 6] ?New and Signi?cant? 2 B. Southside 1991 recorninemintions:"r 2?mirlerfacility cs0 plan?5 l-swirierfacility; 4-swirler facility; dia. mile-long pipeline; sewer separation Building 2003 county pulan:6 underground storage tank; 6-1 21%. dia. mile-long pipeline; sewer separation Stigma No one wants to live next to or near a large sewage facility. At a 1999 public hearing, the county presents to the Southside its proposed Midland Avenue football-?eld sized, 4-swirler sewage plant. The County proposes to build it on the residential block of Oxford-Blaine, where the residents are not homeowners but rent from Syracuse Public Housing. The county and its engineering ?rms argue that three sewer trunk lines meet there, so the plant must be built there. Note: It is interesting that three major Northside sewer trunk lines meet before the entrance to rank! in Square and yet this upscale community doesn get a sewage plant? At the public hearing the residents beg the county to, at least, build the plant in a non-residential neighborhood. Alter an alternative site review, the county claims: I) changing the site isn?t cost-effective and 2) moving the plant to another site will shift the impact to another group. (See Section B5). During the 2002 negotiations, the POC points out that sewage, especially in residential neighborhoods, must remain underground. The POC, the Onondaga Nation, ASLF and the City of Syracuse agree that underground storage tanks are less stigmatizing, healthier and are an environmentally better solution to the CSO problem than the facilities. Both county and city consulting engineers cost a cancept design for CSO storage. Unfortunately, the county uses its power to force an end to the negotiations. When Judge McAvoy rules that the county can take city-owned land for the project, the county unilaterally picks the CSO abatement project a downsized version of the original sewage plant for the same block of Oxford-Blaine. The stigma of a sewage plant in a residential neighborhood leads to many things, including the lowered self-esteem of those living there. One Southside boy shares his tragic feelings about the situation: ?They just think of us as waste.? Combined Sewer Over?ow Facilities Plan, ibid, [chapter footnote 14], 5?42. 5 Amended Consent Judgment, ibid, [chapter footnote Appendix B, 7,9. 6 Midland Avenue Regional Treatment Facility and Convqrances Facilities Plan Amendment, ibid, {chapter footnote 5] 5-1. 7 Map: Maior Collector Facilities gig Over?ow Pom Ma?a ?it Associates and Blasland, Bouck &Lee, April 12, 1989. 3 September, 2006 Evictions The county has been less than honest about the number of evictions or condemnations that the Midland sewage project will require. Throughout this project, the number of families impacted keeps changing and keeps rising. Currently, the number of displaced families has risen to 45, from the original seven mentioned in the original EPA 1999 Environmental Assessment (EA). The USEPA 1999 Environment Assessment (EA) for the Midland Avenue CSO project, based on the county?s 1998 Environmental Information Document (BID), only mentions demolishing a nine unit apartment building at 115 Oxford Street, home to seven families.g Henry Clemmons, a 115 Oxford Street resident, says that this is his third eviction due to a government project urban renewal in the 1960?s, the CENTRO Bus garage in the 1970?s and now the Midland sewage plant in the 2000?s. This continuous uprooting, tears at communal ties. The EA talks about ?temporary relocations? for the Oxford-Blaine residents? For the Oxford-Blaine residents there is nothing ?temporary? about these evictions. After the 1999 Midland Avenue public hearing, Oxford?Blaine families form Citizens for Fair Treatment. In the spring of 2000, other Southsiders join city and county residents and form the Partnership for Onondaga Creek, ?ghting for equity and water quality. In 2000, the county completes Phase I of the Midland project, a conveyance pointing at the proposed sewage plant site, and Citizens for Fair Treatment loses its will to ?ght the county plan. The residents? concerns shift to getting some compensation for their impending evictions, or in the words ?temporary relocation,? Worrying about the disruption in their lives, the block residents stop protesting the plant. Some feel resigned to their fate; some recognize that the continued protest is jeopardizing their possible compensation; still others feel the intimidations and threats. Vemell Bentley of 131 Blaine Street is told by one Syracuse Housing Authority employee that if she continues to demand comparable housing before she moves, she will be ?put to the curb." Her story is below. In 2003, the county?s consulting engineers draw a map of Oxford-Blaine. On this map it seems that only about ?ve families will be forced to move from Syracuse Public Housing?s townhouses. But in August 2004, every Oxford-Blaine townhouse household receives an eviction notice.? During the next three months each resident must decide whether to accept equivalent public! subsidized housing or a onetime payment of $5000 to leave the public housing rolls. In November 2004, close to the November 15 eviction date, 131 Blaine resident Vernell Bentley and her next-door neighbor re?rse to move until their housing needs are adequately met. They want equivalent housing even though the county has sturotmded Midland Avenue Combined Sewer Over?ow Abatement Proj ect?s Environmental Assessment, United States Euvironmentai Protection Agency, July 16, 1999, A-34. 9 Ibid, A-35. I 1" Murphy, Frederick, re: Midland Ave. Regional Treatment Facility, 90 Day Notice of Requirement to Move, Letter to Verne-.11 Bentley, resident of 131 Blaine Street, August 16, 2004. ?New and Signi?cant? 4 the entire housing complex with an eight-foot fence, topped-with-barbed?wire leaving only a small exit for their cars. Mrs. Bentley receives visits and phone calls from the Syracuse Public Housing Authority sta?person in charge of evictions. She even gets a phone call from County Executive Pirro asking why she hasn?t moved and telling her that she has an extension to December 10 to resolve her housing problem. But this phone call is followed up immediately by a hand-delivered (and later certi?ed) letter stating that Mrs. Bentley is in ?violation of the material terms? of her lease.II For Mrs. Bentley this continuous pressure feels like harassment. Mrs. Bentley watches as her next-door neighbor leaves the block. Out of necessity, her neighbor moves in with her mother because she cannot ?nd adequate housing near her children?s school. Her neighbor?s exodus leaves Mrs. Bentley as the sole resident of Oxford-Blaine. On December 9, 2004, just a day before the eviction date, she hears that Section Eight and Syracuse Public Housing Authority have agreed to her conditions for equivalent housing. On December 11, Mrs. Bentley moves to a small house elsewhere on the Southside. Initially, the county makes personal assurances and promises to homeowner Marvin Jones, that the Midland project will not affect his house on West Castle Street or his parent?s house next door. But in January 2003, the county takes both houses through eminent domain with plans to demolish them. Mr. Jones has to ?ght hard to make sure that the county compensates hirn fairly for his loss. Rather than compensation being guided by depressed, prevailing real estate prices in this low-income community, Mr. Jones demands replacement value for his home. As Phase of the project (a mile-long 9?12 it diameter conveyance) unfolds, residents along the pipeline aren?t sure about how they will be treated. Seven more families will lose their homes making the evicted families total 45. If the Phase II pattern holds, as. Phase begins in May 2007, there may be more evictions, especially for families very close to the construction perimeter. Still, the county continues to follow the letter of the law and only provides a 90-day eviction notice. Structural impacts During public presentations on the various parts of the Midland Avenue CSO abatement project Phase I (the Talhnan Bv? diameter conveyance), Phase II (the sewage plant and 1000 feet of 12-ft diameter conveyance), Phase (a mile-iong of 9-12 diameter conveyance), and sewer separation projects the county never mentions the severity of property damage that this kind of construction can cause. Pile driving, dynamiting bedrock, and pounding sewer separation forms into the street can cause structural damage to neighborhood homes and to residential sewer, water and gas lines. When damages occur to water and sewer laterals, or home walls, ceilings and foundations, who will be responsible? Will homeowners be compensated for collateral damage? What will be the burden of proof? Homeowners aren?t prepared for what is to take place; for exampie, they aren?t told to take pictures before construction as a precaution in case their homes l'Murphy, Frederick, re: noti?cation of violation of material lease with new eviction date, December 10, 2004, Letter to Vemell Bentley, resident of 131 Blaine Street, November 9, 2004. 5 September, 2006 are damaged. They are not warned of what is to come when the county pounds the earth with pile drivers, and uses dynamite at the construction site. Noise, dust, truck traf?c In 2004 the county removes the Oxford-Blaine residents before construction begins. Since spring 2005, however, hundreds of Midland community residents have lived with pounding, drilling, blasting, dust, diesel fumes, and truck traf?c. This environment is unhealthy and disruptive to famin life, and to individual peace and privacy. Rats and other wildlife With the pounding of the earth, rats, groundhogs and skunks appear to be more prevalent in the Midland community. For example, after the county lays the 2000 Tallman conveyance, rats overrun the 300 block of Midland One Midland resident catches and removes 10 rats from her house. In 2005 Channel 10 News reports on rodents in the Midland community.? Other complaints The residents begin to compare ailments including loss of sleep and headaches. One describes her feelings about the Midland construction as, ?just plain newewracking.? Road closing ad traffic disruption The 1993 Environmental Information Document (BID) doesn?t mention (and the community doesn?t expect) that the Midland portion from Bellevue Avenue to West Castle Street will be closed. in fact, in a March 2003 BEA table, the consulting engineers say that section of Midland Avenue will be closed for 16 weeks. The section is closed in the winter of 2005; this closure is now in its second year, with no indication of when it will reopen. It forces all vehicles to detour and removes Midland Avenue, a principal Southside artery, as a main access route for ?re, police and ambulances. Will the same thing happen to the other main Southside artery, South Avenue, when the county constructs Phase the mile-long conveyance? The 2003 BEA table shows there will be no closures even though the conveyance design shows l2-ft diameter pipe crossings at South Avenue and West Castle, and South Avenue and Kirk Avenue. Compared to the Northside, why is so much more expected of thislow?income, African-American community? Permanent loss of housing On Phase II, the county has demolished one public housing apartment building and ?ve private homes. For Phase at least six more homes will be demolished. Temporary loss of quality housing Public Housing boarded up all 27 quality public housing townhouses on Oxford-Blaine. They will supposedly become available again when the sewage plant is built. How will this quality public housing block survive two years of moth-balling and pounding and dynamiting?? Southsiders and others wonder: ?Who would want to live near a sewage plant I ?2 Channel 10 news rep-011, Summer 2005. ?New and Signi?cant? 6 Real estate value Over the last twenty years the Southside has been blessed with a number of home ownership initiatives. These initiatives include Syracuse Model Neighborhood Corporation, Jubilee Homes, Home Headquarters, Habitat for Humanity and Empire Housing Corporation. Jubilee homes has built or renovated 88 homes for their Time of Jubilee Land Trust. On the 300 block of Midland, two blocks from the sewage plant, Habitat for Humanity has built seven homes, and on Crescent Avenue, near the proposed 12 it. diameter pipeline, ?ve homes have been built. Since 1999, four of the above agencies have built a total of 17 new homes and rehabbed 125 .13 In 2005, the Southside Initiative announced the construction of seven single family homes and the rehabilitation of eight more. 14 Despite these initiatives, homeowners still face depressed real estate values, and potential homeowners, ?redlining.? - Syracuse United Neighbors (SUN), a Southside and Westside neighborhood advocacy group, has a campaign to ?ght "?redlining.? SUN works with local banks ensuring an equitable mortgage process for Southside and Westside residents.15 As the Southside struggles for fairness and accessibility regarding home ownership, the sewage plant?s presence adds one more hurdle to building good neighborhoods to raise families. First-time homeowners, living close to the sewage plant, will ?nd that their home equity has been adversely impacted. For them, ?pulling up stakes? and moving may not be an affordable option. Health and Environmental Impacts Some adverse impacts are temporary and are related to the construction, others are more permanent: loss of permanent housing or greenspace, low real estate values, stigma and impaired health of residents or aquatic life. In particular, there are negative impacts associated with dismfection by-products that are formed when wastewater is treated chlorine or sodium hypochlorite. 1. Air Quality The Title VI claim enumerates chemical by-products that may impact the health of Southside residents living near the sewage plant because it uses sodium hypochlorite. As described in our claim, the air in this neighborhood is already impacted because it is on the edge of an industrial zone, and is near a major Interstate highway (1-81). The residents of this zip code (13202) have an asthma rate that is 13 times higher than most other areas of the county.16 Chloroform and other tribalomethanes (Tl-lMs) will be formed via chlorination of the sewage plant?s effluent. These compounds will volatilize as they discharge into the creek, and will further volatilize as they ?ew The claim notes that: '3 Home Combustion and Rehabilitation, Syracuse United Neighbors Summary Sheets, August, 2006. '4 The South Side Housing Initiative,? Press release by the City of Syracuse, September 26, 2005. '5 The Banking Committee Newsletter, Syracuse United Neighbors, March, 2003. '6 Title VI easements: Complaint to the USEPA, ibid, [chapter v, footnote 611,}: 19, 20. 7 September, 2006 Chloroform can cause dizziness, fatigue and headache with short-term exposure and, with longer term exposure, is a possible human carcinogen and can cause liver and renal damage. In the 1999 EA under the Air Quality section, the USEPA says.? There should be no adverse long-term impacts due to operation of the [Midland] RTF, because the facility does include an odor control system that will ensure that treatment of combined ?ows during storm events will not degrade the ambient air quality. This unforttmately neglects to acknowledge that volatile chemical by-products will be emitted into the air when the plant over?ows. The POC has undertaken a new analysis of potential air emissions of chlorofonn. We have selected chloroform as an indicator compound, because it is well?known to form when hypochlorite reacts with organic matter, is volatile, and has signi?cant health implications. Moreover, chloroform is the dominant TI-IM formed during chlorination of water containing organic carbon. While it is not possible to calculate exact concentrations of lay?products, it is possible to make reasonable estimates. Studies on chlorination of drinking water show concenn'ations of chloroform typically in the 50-60 microgram per liter (pg/l) range. '3 Disinfection of wastewater can be expected to lead to higher concentrations of chloroform due to higher levels of organic matter. However, short contact time can reduce chloroform formation. In the Midland RTF, the design contact time is 5 minutes, based on a design ?ow rate of 330 cfs.? However, the acme] contact time will vary depending on the actual rate at widch sewage ?ows through the plant. Since most storms will be much smaller than the ?one-year? storm, actual contact times will generally be much greater than 5 minutes. In Rebhun er 01.0997), an ef?uent exposed to chlorine for one hour produced 495 gig/1 This will be considered, for the pmposes of this analysis, to be a reasonable upper limit of anticipated chloroform concentration. Thus, chloroform can he expected to range from about 50 to 500 pgfl. Model estimates of treated discharges from the Midland RTF predict 77 million gallons Midland Avenue Combined Sewer Over?ow Abatement Project?s Environmental Assessment, ibid, [chapter VI, footnote 8] A-32. 1? amen, Savitz and Singer (2004) 000150. mean. Med 61: 55-72 [not exhibited]. '9 Mdland Avenue Regional Treatment Facility and Commas-ricer acilfties Plan Amendment, ibid, {chapter [11, footnote Appendix 9. 2? Rebhum, L. Heller-Grossman, and J. Marika (1997) ?Formation of disinfection byproducts during chlorination of secondary ef?uent and renovated water,? Water Environ Res. 69: 1154-62 [not exhibited]. ?New and Signi?cant? 8 in a typical year, spread over 9 events. Thus, a ?typical? release would be on the order of 8.5 million gallons. At the concentrations described, total chloroform released in the effluent would range from 1.6 to 16 kg. As the RTF ef?uent discharges out of the 16-h by 1 1-0: box culvert? into Onondaga Creek, a portion of the chloroform will immediately volatilize. Chloroform has a very high Henry?s Law constant, which means that it will volatilize ?om water very quickly. In a recent review entitled "Chloroform in the Environment" (Euro Chlor, 2002), it was estimated that chloroform would partition >99% into air, and that this had been demonstrated in sewers and estuaries. Thus, it can be assumed that essentially all of the chloroform will volatilize. For performing order-of-magnitude estimates of local air emission impacts, we constructed a box-model. In this method, emissions ?om a point source are dispersed into a volume with a radius of 100 m, and having a height of 10 m. Thus the total volume is 314,000 m3. Dispersal of the volatilized chloroform results in air concentrations ranging ?'om 5000 to 50,000 pig/m3. These concentrations exceed the NYS one?hour maximum criterion for chloroform (150 by factors of 33 and 330, respectively. As noted, the RTF is expected to over?ow an average or 9 times per year. Each event will introduce a pulse of chloroform and other volatile compounds into the Midland Ave neighborhood. These compounds will disperse over time, with the rate of dispersal dependent on local meteorology. Given that the neighborhood is situated in a valley, it is liker that rates of dispersal will not be high. New York State has established an annual average ambient concentration for chloroform of 0.043 rig/m3. In order to reach this level, the concentrations discussed above for the box-model would have to diluted by a factor of 1 16,000 to over a million times. We do not know the background level of chloroform in the Midland Ave. area, but we do know the air is far from pristine. There is an industrial laundry, an interstate highway, a power plant, various car repair businesses, and several brown ?elds within close proximity of the RTF. Thus, even with dilution, it would appear quite likely that this ambient standard would be routinely exceeded. These results demonstrate that the Midland RTF, as currently designed, will very likely have a detrimental impact on local air qualityu?a factor which has heretofore been denied by the county, and which has escaped the notice of the regulatory authorities. We hope that this new analysis corrects this situation. 2? (Air Guide-1) Tables, New York State Dept. of Environmental Conservation (2000) [not exhibited]. 9 September, 2006 2. Water Quality ln Appendix B, under ?Evaluation of C80 Toxicity,? the ACJ shows concern about the creation of toxic by-products when sewage combines with industrial effluents:22 In 1989, the NYSDEC measured evidence of pollution related stress on the macroinvertebrate populations of the principal tributaries of Onondaga Lake and concluded that the impacts appear to be a result of sewage discharges and toxic chemicals. In general, CSOs should not represent a significant source of potentially toxic material other than certain locations where signi?cant industries exist. The County will monitor the collection system adjacent to industrial discharges and evaluate control methodologies to minimize or eliminate potential toxics ?'om C30 discharges including source control. Given that chlorination of sewage will create hundreds of toxic by-products, why would the county select a technology that adds to the toxicity of Syracuse?s waterways? This technology selection ?ies in the face of the county?s legal commitment, cited above, to ?minimize or elirninate?CSO toxicity. In addition to the TI-IMs discussed above (Air Quality), there are numerous compounds of varying toxicity created during the disinfection process. These include: . chlorophenols . haloacetic acids - haloketones . haloacetonitriles . aldehydes - nih?osamines The last of these?the nitrosarnhres?includcs N-nitrosodimethylamine which is among the most power?rl carcinogens known.23 The formation of these compounds in chlorinated sewage led the authors of one of the most respected wastewater treatment textbooks to conclude: It has been shown that many of the disinfection by-products (DBPs) can cause environmental impacts at very low concentrations. The occurrence and compounds such as N?nitrosodimethylamine raises serious questions about the continued use of free chlorine for wastewater disinfection. The county's RTF design calls for a dosage of 14 mg/L of sodium hypochlorite, which should be more than adequate to produce ?free chlorine.? 22 Amended Consent Judgment, ibid, [chapter II, footnote Appendix B, section 14, 11. Metcalfd'z Eddy, Inc., (3. Tchobbanoglous, EL. Burton, and H.D. Stensel (2003) Wastewater Engineering: Treasurer! and Reuse. Eat McGraw-Hill, Boston, citing Snyder (1995) [not exhibited]. ?New and Signi?cant? 10 In 2002, because of citizen concern about chlorinated disinfection ltry-products, the county organizes a local CSO disinfection workshop. One of the county?s slides lists 41 toxic disinfection byuprodutcts.M In a recent scienti?c rcport,? researchers identify 500 disinfection by-products, 28 of them previously undetected. Stuart Krasner, one of the researchers, says :26 If you disinfect water, you are going to have by-products. . ..The more we understand, the more we can get ef?cient disinfection and minimize as many lily-products as we can. (emphasis added) The POC continues to advocate for storage and sewer separation as the long- term CSO abatement solutio. This approach minimizes disinfection by- products; the sewage would be treated at the upgraded main wastewater treatment which now disinfects with harmless ultra-violet light. The county?s dismissal of the toxicity of chlorination disinfection is troubling. Just as disturbing are the 2002 removal of Orion Lake?s tributaries (Onondaga Creek, Harbor Brook and Ley Creek)21f from the impaired water list, required by section 303(d) of the federal Clean Water Act,? and the 2005 draft SPDES permit. 30 The tie?listing is the step that allows the NYSDEC to ?water down? protective controls for these impaired tributaries; it makes the tributaries more like point sources or sewers to the Onondaga Lake rather than living creeks. NYSDEC is required by the federal Clean Water Act? to protect surface water by establishing: a) separate total maximum daily loads for each impaired waterway; and b) rigorous SPDES permit ef?uent limits and monitoring requirements for each tributary?s CSO facilities, capacially the chlorine-based facilities, which will be introducing toxicity levels to these tie-listed impaired waterways that didn?t exist before. 1? Lake Improvement Project O?ice CSO Disinfection Workshop slide summary, ibid, [chapter 11], footnote 23], 6. 25 Krasner, Stuart S.D Richardon, et a1. ?Occurrence of a new generation of disinfection lay-products.? Environmental Science ti: Technology. July, 2006. 26 ?What?s New in the Water?? Abstract for ?Occtu'rences of a new generation of disinfection lay-products.? Science News. August, 2006. 21' Waterbodies Designated as Priority for TMDL Development, 303(d) list developed by the NYSDEC, April 1998. 2? Waters coasted from the 1993 Section of 303(d) list, list developed by the stnec, June 2002. 29 Federal Clean Water Act, 33 use. sec 1314(d). 3" State Pollutant Discharge Elimination SyStern (space) Discharge Permit, NYSDEC, as. 31 Federal Clean Water Act, 33 U.S.C. sec 125 I et seq. [not exhibited]. 11 September, 2006 In its response to comments protesting the de-listing of Onondaga Creek, Ley Creek and Harbor Brook, the NYSDEC de-values these orientation? i There was never any intention to address the individual tributaries with separate outside the context of their impact on Onondaga Lake. [emphasis added] The public values Onondaga Lake. Citizens groups have also sprung up trying to revitalize Syracuse?s other waterways: by monitoring water quality, like Project Watershed; or educating the public on water quality and habitat, like the Friends of Onondaga Creek and the POC. Every September volunteers pull trash from Onondaga Creek. Currently, the USEPA funds an Onondaga Creek revitalization - and Visioning process. Through years of ?ghting for their waterways and neighborhoods, many citizens know that the swirlerfehlorination technology, touted by Onondaga County and its engineering ?rms (BEA, MA, and CDM), is not the enduring, long-term solution to Syracuse CSO problem because it continues to treat our waterways like sewers. Escalating Consolidated Sewer District rates In 1978 the Onondaga County Legislature consolidated its various sanitary districts within Onondaga County, establishing the Onondaga County Consolidated Sanitary District. This district encompasses 90% of the county?s population, 11 townships and the City of Syracuse which, in 2004, contributes 37% of the sewer district?s budget. The county funds the sewer district by levying a ?at rate on each household in the \w district. This levy is a regressive tax hardening low income households much more than middle or high income households. In the section 4.2.3 Impacts on Socioeconomics of 1998 Environmental Information Document the county addresses this rate burden. Based on a ?most likely? scenario of 3% in?ation, $260 million total in aid, receiving aid at the same pace as capital expenditures are incurred, and no need for additional treatment units, the impact of the Midland project and all the other CSO abatement projects on the user charge would be $59 over the next ?ve years, $133 over the next ten years, and $160 over the next twenty years (AC1 Summary and Project Abstracts, 1998). The county?s consulting engineers use the standard engineering calculation of Present Worth (PW) to compare costs. The PW calculation doesn?t subtract the federal and state grants that don?t have to be repaid, in the case of Midland, $53 million. At the end of the 2002 Midland Avenue negotiations the city asks the county not to use PW to compare options, but instead, to calculate the consolidated sewer district rate burden of each option. Such a calculation would evaluate the real effect of the incurred local debt for construction and the annual operating and maintenance costs. The county agrees to do the analysis by examining the three most viable options. Inexplicably, the county only 3'1 Response to Comments on the 2002 Section 303 List, NYSDEC, June 1 1, 2002, 12. 3'3 Enwronrnemol Information Document Mdland C80 Prtnecr, Onondaga County, November 1998, ?New and Signi?cant? 12 so.) projects rate changes over the next 18 years even though these (:80 facilities have a 50? year life expectancy. Despite stepping the analysis alter 18 years, the county shows that the pricier?tombuild but cheaper-to-run underground storage will cost the ratepayers annually 39 cents more than the county?s preferred sewage plant option34 (see chapter HI. Execution of the C30 LTCP, Section 4). In November 2002, after the negotiations break down and despite the above 030 project comparison, the county selects the sewage plant option. It proceeds to misinform the public that the undergron storage option is a $20 million burden that the ratepayer should not have to bear. In 2006, the county announces that the sewage plant option it is currently building witl cost more than double the 2002 cost estimate. In July 2006 the County Legislature votes along party lines, with those representing the impacted districts voting against funding the $67 million cost over-run. However, with the legislature dominated by people representing constituents not adversely impacted by the sewage plant, the funding is eventually passed. Since there is no guarantee that the county will receive more federal and state dollars for this over-run, it will disproportionately and adversely impact the poor households of the consolidated sewer district, which includes the overwhelming majority of the Midland Avenue conununity. Summary Our governments and their agencies don?t serve and protect the public and the environment by enforcing existing policy and law. Icemad, the government protects the vested interests of the power?ll and the privileged. As Onondaga county continues to push and mediocre swirlerz?chlorination CSO abatement plan, the citizens pay a hefty price socially, environmentally and ?scally. 3" ?Comparison of the Midland Avenue Options on Rates,? ibid, [chapter 111, foomote 35]. 13 September, 2006 C. Downtown 1991' recommendations:35 2-swnierfacility ACJ CSO plan'? 2-swirler facility; sewer separation 2005 counnzpian:37 2-632. din. conveyances Currently the county plans to build a sewage plant Downtown. The city of Syracuse, city residents, and creek advocates argue that this is not a good plan for the future of Annory Square (Domtown?s most thriving area) or for Onondaga Creek?s revitalization. Stigma At a June 2005 Annon Square Association-sponsored public meeting, the POC presents ?Water Quality Opportunities for Amory Square?38 suggesting a better alternative - sewer separation combined with undergron storage. At the February 2006 public hearing on the proposed Clinton Street sewage plant, city residents and the city of Syracuse? tell the county that a sewage plant is not positive development and that it will hurt the long-term potential for this vital Downtown area. Evie?onsIEaseents The county will not be evicting residents or businesses to build the proposed Downtown sewage plant. But the county is placing easements on some properties for the sewage plant?s pipeline and plans to take through eminent domain the city-owned parking area called ?the trolley lot? for the sewage plant. One business owner, John Butler, objects to the easement across his creek-front property because it precludes him from building where the pipe is installed. The city is still contesting the forced dispossession of the trolley lot in the federal second circuit court of appeals. The mayor warns that using the Armory Square site (the trolley lot) will preclude development options for this piece of prime real estate. Structural impacts Some Midland community members have experienced cracking of walls; similar problems will most likely occur on Clinton Street project, especially since many Armory Square buildings were built in the 1800?s on a ?lled-in swamp. Their foundations are not very stable. Additionally, many of the Downtown clay sewer lines were laid in the 1800?s, with the oldest in Armory Square dating back to 1855. Unlike many Southsiders, downtown business owners will probably be careful to document the state of their buildings prior to construction. Given that the Square Association didn?t push for a better CSO technology, they may also feel more secure in their belief that the county will compensate them for structural damage. 3? Combined Sewer Over?ow Facilities Plan, ibid, {chapter 111, footnote 14}, 5-42. 3? Amended Consent Judgment, ibid, [chapter 11, foomote Appendix B, 7,3,9. 37 Clarion Street 080 Abatement Project acilities Plan, ibid, [chapter Ill, footnote 13], Figure 6?2. 3? ?Water Quality-based Oppornmities for Amory Square,? ibid, [chapter v, footnote 34]. 3?9 Driscoll, Matthew, mayor of Syracuse, re: County?s proposed RTF for Armory Square, Letter to City Downtown Business Duster and City Downtown Resident, February 20, 2006. ?New and Signi?cant? l4 Temporary loss of parking The construction of the Clinton Street sewage plant will take at least two years, robbing the Armory Square business area of 450 parking spots a less this commercial area of mostly small'enterprises cannot afford. The county promises mitigation but there is little other parking close enough to adequately service the area. Permanent loss of parking The proposed sewage plant itself will permanently remove 300 - 400 parking spaces. As part of the Clinton Street project mitigation package, the county is offering the Annory Square businesses and residents a four million dollar parking garage to be built on top of the sewage plant. Recalling what happened to the Midland community, merchants and residents fear that if they organize to oppose the technology, it may well be that Downtouat won?t get its parking garage (see chapter VII). Noise, dust, and traffic disruption Armory Square entrepreneurs fear that road closings and loss of convenient parking could put them out of business. These small businesses cannot expect to survive the loss of revenue over one year much less two. At the February 2006 Clinton Street sewage plant public hearing the county promises to do everything it can to mitigate the disruption, even stopping construction during the holiday shopping season. But the blasting, drilling, and road closure experienced by the Midland community suggest that the county?s promises to Downtown may not be met. Hanford Pharmaceutical Company, a privately-owned business at 304 Oneida Street that employs over 250 people, most of them Syracuse city residents, will also be impacted by the construction. Because the county proposes to lay a C80 conveyance outside its factory, Hanford Pharmaceuticals has serious concerns: personnel parking, air quality, truck access for deliveries and shipments. Poor air quality due to dust would shut down Hartford?s manufacturing process and impaired truck delivery could affect its bottom? line. The county says it will address Hanford?s concerns by using a tunneling technique when it is laying the conveyance near Hanford?s factory. Health and Environmental Impacts The adverse health impacts for people visiting, working, and living near the Clinton Street sewage plant are similar to those described above in Adverse Impacts: Southside Health and Environmental Impacts. For Downtown, MA predicts that the Clinton Street sewage plant will annually over?ow 18 times. 4? Each over?ow wilt spew chloroform into the air and its ef?uent will add toxic chlorinated by-products to Onondaga Creek. Escalating Consolidated Sewer District rates See above, Adverse Impacts: Southside. Clip-iron Sees! C50 Abatemem Project Facilities Plan, ibid, [chapter footnote 13], 6-2. 15 September, 2006 D. Westside I 991 recommendations:? two i-swirler facilities ACJ CSO plum? Harbor Brook In? Water system (demo) 2004 county plan: two 2-swaierfaciliticsdia. conveyances? The Westside, especially around the proposed Amy Street sewage plant, is one of Syracuse?s poorest neighborhoods. It is also the preferred neighborhood of most Syracuse?s Latinos. Stigma Located in the Harbor Brook?s upper basin, the proposed Amy Street sewage plant is a block from both bi~lingual Delaware Elementary School and Fowler High School- In 2003, the State University of New York?s College of Environmental Sciences and Forestry (ESP) and ASLF propose a stigma-flee, non- disruptive and. chemically-free alternative to treat 11an of the upper basin?s asce.45 Their proposed sub-surface treatment system and wetland would make it feasible to capture the remaining upper basin CSOs in an underground storage tank at Amy Street. But, rather than reduce the stigma for this struggling neighborhood, the county repeats its mantra: ?It?s too late; we have ACJ deadlines to meet? Evictions The county plans to condemn a four-family and a two-family apartrnent house in order to build the proposed Amy Street sewage plant. Structural impacts The Westside has many old and structurally compromised houses. Pile driving -- along the pipeline and at both sewage plants -- may seriously affect nearby homes. Street traf?c disruption Since the proposed Amy Street sewage plant is near two schools, bus and car routes to these schools will be affected. Between the laying of conveyances and building the plants, Westside residents will be inconvenienced for years. Combined Sewer Over?ma Facilities Plan, ibid, [chapter footnote 14], 5-42. ?2 Amended Consent Judgment, ibid, [chapter H, footnote Appendix B, 10. ?3 Harbor Brook C30 Abatement rl?royieatI Facilities Plan, Executive Summary, ibid, [chapter V, footnote 93], Table 135-1. 4? Responsiveness Summary for Harbor Brook CSO Abatement Facilities Plan, ibid, [chapter V, footnote 94], 3. ?5 Hall, Myrna; Smardon, Richard; Gianusso, Steve; Sage, Samuel, ?Creating Stonnwater Treatment Wetlands for Harbor Brook, Syracuse, New York: An Urban Ecosystems Educational Partnership,? 2003. ?New and Signi?cant? 16 Noise, dust and truck traf?c Just as the Midland community is being a?ected, this struggling low-income Westside community will bear the brunt of at least four years of construction for stigmatizing sewage plants and their conveyances. Delaware Elementary and Fowler High School are Westside city schools, struggling to meet state and federal academic standards. Fowler has been placed on a list of schools facing closure for low academic performance. Last year, Shea Middle School, just a few blocks south of Delaware Elementary, was closed because it didn?t meet mandated standards. During the construction of the Harbor Brook CSO project, Fowler High School will, at the very least, lose the use of its football ?eld. Disruptive construction and its accompanying noise will negatively impact learning and interfere with attempts to improve student performance. Construction dust will affect air quality impacting playground and sport activities especially for asthmatic children. These children may be forced to stay inside during recess and other outdoor opportunities. The close proximity of two schools should have caused the county legislature to vote for a full Enviromnental Impact Statement rather than, on March 7, 2006, passing a negative declaration of adverse impacts. Real estate value As on the Southside, Home Headquarters and Habit for Humanity are making home ownership an affordable option, especially for the ?hvorking poor.? On the Westside alone, Habitat for Humanity has built about 35 homes. Even though real estate values are depressed on the Westside, the hope is that these housing initiatives will help rebuild neighborhoods, making them good places to raise families. Placing an above~ground sewage plant at Amy Street runs counter to this initiative and other attempts to rebuild community self-word}. Health and Environmental [pacts The adverse health impacts for people living near Harbor Brooks? two sewage plants are similar to those described in above in Adverse Impacts: Southside Health and Enviromnental Impacts. At Amy Street there is an added vulnerability: a concentration of school-age children. Escalating Consolidated Sewer District rates See above Adverse Impacts: Southside. E. Summary A look at adverse impacts by city section shows how the county values each area. Af?uent Northside neighborhoods are spared disruptive, stigmatizing CSO projects while Downtown, the Westside and the Southside bear the brunt of Syracuse?s CSO abatement projects. 17 September, 2006 Downtoum?s Armory Square will face adverse impacts of a very speci?c nature. Although there are no evictions, its businesses will su?er from major disruption, loss of prime real estate and lasting stigma. Two struggling Westside schools with signi?cant Latino populations would face major disruption ?om the building of the proposed Amy Street sewage plant. Currently, the Southside is experiencing the adverse impacts of Phase 11. Starting in May 2007 and for the next two years, it will feel the impacts of Phase To describe these impacts as anything other than ?si cant? is to denigrate the conununity. Recall one young resident?s sad commentary: ?They think of us as waste.? ?New and Signi?cant? 18 VII. Mitigation by Sub-basin A. Northside B. Southside 6. 7 P190 The Need for and the Promise of Mitigation The Mitigation Package County Withdraws Mitigation Response to County?s Mitigation Withdrawal Sou?isiders Ask County about Phase Pipeline, its Adverse Impacts and Mitigation Community Organizing on Pipeline, Community Development and Jobs Conclusion Downtown Westside Conclusion 1 September, 2006 Hun-e". A. Northside The county doesn?t offer mitigation to the Northside because all of its CSO projects are small and don?t adversely impact its residents. Instead, the county and the NYSDEC allow the Northside to release 80% of its combined sewage into Onondaga Lake tributaries shifting the CEO abatement burden to Title VI neighborhoods, especially the Southside. Over the years the POC realizes that the Northside isn?t aware of its own (180 pollution. This is true even though Northside?s CSOs, connecting to the Burnet Avenue and Butternut Street trunk sewers, are signi?cant polluters to the city?s waterways. Few Northsiders have any idea how well county executive Pirro one of their own looks out for their interests, protecting them from the consequences of their own sewage. B. Sonthside l. The Need for and the Promise of Mitigation The 1999 Environmental Assessment (EA) is based on the county?s Environmental Information Document (BID), the 1999 Midland Avenue RTF and Conveyanees Facilities Plan, and the 1999 public hearing of the Midland Avenue facilities plan. Although Southsiders speak passionately at the 1999 public hearing regarding discrimination and the proposed sewage plant?s adverse impact, the USEPA accepts the county?s analysis that no other site or project con?guration would lessen the adverse impact on the Scuthside community. The EA limits the adverse impact to the Oxford?Blaine block, the site of the RTF, and its loss of housing and greenspace: The RTF is the only part of the project that will cause along-term change in land use in the area. restore these uses to the neighborhood by creating additional open space, the County has proposed to purchase adjacent property, includin a nine-unit apartment complex (only partially occupied [but the valued home of seven families D, from the Syracuse Housing Authority. This Simona-e would be demolished, and the resulting open space would be landscaped and recreational facilities constructed on part of it. The Housing Authority has assured the County that suf?cient housing of similar or better quality can and would be made available to any residents displaced by the demolition of the apartment building. To mitigate this adverse impact, the EA dangles mitigation ?carrots?: Additionally, there 'w a possibility that new units could be constructed on West Castle Street, just a few blocks proposed open space restoration will, however, require the approval of both the County and City legislative bodies. Midland Avenue Combined Sewer Over?ow Abatement Project?s Environmental Assessment, United States Environmental Promotion Agency, July 16, 1999, 11-34. 2 Sieh, Maureen and Weiner, Mark, ?Cotme Offers Plan to Ease Plant Impact.? Panama Syracuse, New York, January 12, 2000. ?New and Signi?cant? 2 1 :9 And again: One short-term bene?cial effect of the project will be the more than 100 compaction-related jobs that will be created. The Project Labor Agreement (PLA) commits the county to employing minorities and women at 10 percent and 5 percent, respectively, of the workforce. There are similar provisions for contractors. The Cormty will make every legal effort to ensure that: local residents have the opportunity to be included in the labor force. The county says that local residents will have a real shot at some high-paying construction jobs. Given the context, many readers might think that ?local residents? means those affected by the RTF. In April 2000 the county ?les an Anticus Brier? in the United States Dish-let Court -- Southern District of New York in support of the defendant, the USEPA. The cotmty repeats to the federal government its commitment to mitigating the Southside?s adverse impacts: in response to community concerns, the County developed a package of measures aimed at mitigating the potential adverse impacts raised by neighborhood residents. These measures include: covering the costs of relocation, restoration of lost open space, development of a creek walk, and development of additional community space. These and other mitigation measures are detailed in the Midland Project?s Environmental Assessment Document. (See, E.G. Environment Assessment Document .. . at and (9) (economic, population, land use and environmental justice added] 2. The Mitigation Package The Post article cited on page 2 above reports?: Onondaga County has come up with a $3 million plan to ease the impact of a proposed sewage treatment plant on Syracuse?s South Side. county?s plan will call for building nine townhouses, spark with a basketball court, a playground and green space along with the creekWalk. 3 Onondaga County Amicus Brief: supporting USEPA in appeal suit: Atlantic States Legal Foundation et a1 vs. USEPA, United States District Court, Southern District, 6. Sieh, Maureen and Weiner, Mark, ?County Offers Plan to Ease Plant Impact.? Post-Standard, Syracuse, New York, Januaryr 12, 2000. 3 September, 2006 In April 2001 Lake Cleanup Director Mike Cunningham addresses the county Public Works committee (now the Water Environment Protection committee) about the $3 million mitigation package for the Southside community. According to the committee?s minutes,5 Mr. Cummingham says that: .. .for about three years, we have been saying the County would give up to $3 illion to help mitigate impacts on the neighborhood; this agreement shows what the improvements will be.. .. ['I]his is only a first step; many ideas have come from City Councilors or residents. The minutes continue: .. .Mr. Kinne [one of two Southside county legislators] said the redevelopment initiative shows tees and work to the Southwest Community Center. Mr. Cunningham said we need to get the City and local residenm to tell us what they want us to do; we have a cap of $3 million for the project area; we have done cost estimates as shown in this plan but are open to other suggestions. He said there is assistance and master planning; there was an offer of $100,000 to assist the Southside to develop a strategic plan; the plan could be altered. . 3. County Withdraws Mitigation In August 2002, although the parties appear to be close to consensus, the nine-month long negotiations between the county, the city, ASLF, the Onondaga Nation and the POC abruptly end. Behind closed doors, the county demands that the city not oppose the county?s proposed Doumtown sewage plant. The city refuses. This negotiation break-down pre-empts an agreement on 030 technology selection and a discussion on jobs and .R community development On the heels of that break-doom is a federal court decision allowing the county to take city-owned land for the Midland project. The county decides unilaterally to select the C30 technology and to withdraw the $3 millio mitigation package. On Novber 25, 2002 the county announces its decision at a special county legislature meeting. On November 26, 2002 the Post-Standard headline reads ?County Drops Offer for Midland Improvement.? 6 The Post quotes the Lake Improvement Of?ce director Mike Cunningham: Our plan right now does not contain any neighborhood improvements. didn?t seem to be consensus in the neighborhood about what kind of enhancements would be done. [emphasis added] A few months earlier, the county left the negotiating table thereby pre-empting the ?neighborhood improvement? discussion. Given this fact, the county is unfairly faulting the Southside for not having a plan which shifts the blame ?om itselfto the victim. That is discriminatory. - 5 Minutes, Onondaga County Legislature Committee ofPublic Works, April 12, 2001, 13 2,3. 6 Weiner, Mark, ibid, [chapter v, footnote 53]. ?New and Signi?cant? 4 4. Response to County?s Mitigation Withdrawal The following are imediate responses ?'om elected representatives reported in the November 26 Post article?: Syracuse ?3 mayor Matt Driseoli: I?m shocked. It?s unbelievably outrageous. What more do they want to do to city residents. Now the}r want to punish the city residents by taking the $3 million off the table. [emphasis added] The maon tells the press that the county executive and his advisers clearly lmew the community had a plan for neighborhood improvements. City common council president Bea Gonzalez: I do feel we were misled during that mediation .To say that there wasn?t consensus, Mr. Cunningham, I?d say I have to respectfully disagree with you. Westside city couneiior Mara) Masterpoie: This is being slammed down our throat. ..This is completely not acceptable. Absurd. Soarhside county legislator Althea Chaplin: I?m appalled that you would say something like that . .. [know that the consensus is there. And i we made a commiunent as a legislature that wheu we leave this project, we will make sure the community is a better place. Ms. Chaplin also says that neighbors have had regular meetings to come up with plans for improvements related to the sewage work, contrary to Cunningham?s claim. Below are later responses to the mitigation withdrawal, or as in the case of the USEPA, non- responses. Cormty executive Nick Pirro: At the November 3, 2004 annual Onondaga Lake Partnership Progress Meeting, a POC member asks county executive Pin-o what happened to the Southside?s mitigation. Pirro responds that the county has used it on legal fees battling the opposition to the Midland sewage plant. Ibid. 5 September, 2006 Table 12 shows the county department of Water Environment Protection?s law charges re?ected in the Onondaga Lake Improvement Proj eet Reports.? The law charges are for about 24 Lake Improvement projects. Table 12 Onondaga County?s Water Environment-Protection Department Law Charges related to the Lake Improvement Project 1999 41,173 2000 71,460 2001 124,401 2002 222,670 2003 206,150 2004 193,690 2005 3 90,628 2006 (adapted) 3 134.333 Total: $1,144,560 Even if all theses law charges were used for Midland (which they weren?t), the total doesn?t even come close to using up the $3 million earmarked for Midland mitigation. The USEPA: Despite the 2002 mitigation withdrawal, in January 2004 the USEPA re-issues an Environment Assessment (?nding of 0 signi?cant impact) on the modi?ed Midland RTF Facilities Plan. [emphasis added] In March 2005, after only reading documents?in the region 2 of?ce, the Of?ce of Civil Rights dismisses the Title VI administrative claim (see below). It concludes that? The county and the NYSDEC utilized a facially neutral process in planning and approving the RTF. In addition, any potential impacts on the African-American community surrounding the RTF are not signi?cant, are mitigated by the County?s efforts to minimize environmental impacm, or are offset by the bene?ts that the RTF will provide to the community. [emphasis added] The POC believes that, if the OCR had visited Syracuse, and in particular if it had interviewed Southsiders, the OCR would not have been able to claim in its dismissal letter that ?any potential impacts are mitigated by the county?s 3? reports, Onondaga Cotmty's Onondaga Lake Improvement Project, 2000, 2001, 2002, 2003,2004, 2005, 2006 9 Higgenbolham, Karen, ihid, [chapter 111, footnote 54] 7, ?New and Signi?cant? 6 The P00 and syrocnse University ?3 Public Interest Law Firm: In April 2004, for the P00, the Syracuse University Public Interest Law Firm ?les a Title VI administrative complaint against the county and the NYSDEC Wi??l the Of?ce of Civil Rights (OCR). Seeking an environmentally better and more respect?il CSO project, the claim notes that mitigation for the residents of Oxford-Blaine is insu?icientd" The residents of Oxford and Blaine Streets have been offered choices of public, ?section eight? or private sector housing. Finding private sector housing, however, will be difficult, since rent subsidies won?t exceed $600. Clearly, this mitigation is inadequate and can?t begin to replace the village quality of this neighborhood. [emphasis added] As time passes Southsiders sadly realize that the county is punishing the Southside for its resistance to the county?s proposed Midland sewage plant. The Southside?s elected representatives respond to this injustice: Soathside city counciior Tom Seals: At the February 2006 public hearing on the county?s Clinton (Downtown) CSO abatement project, Mr. Seals points out that he is? concerned that Midland area didn?t get a mitigation package that was on the table and now the County is talking to Armory Square about a parking garage. Wants some concrete mitigation at Midland. [emphasis added] [County?s] response: In addition to reducing the size of the abovegrouud portion of the Midland RTF, placing it further from proximate residences, and increasing storage capacity at Midland, the plans for the Midland CSO Facility include signi?cant landscaping including tree plantings and lighting around the facility a?er construction is completed. Other restoration efforts will also be carried out where the County has disturbed the area due to construction. These measures are not the promised mitigation; they are standard post-construction cosmetics. And again, Southside county legislator Althea Chaplin: At the November 2005 public hearing on the county?s proposed Westsidc CSO abatement project, the Westside County Legislator, Ed Ryan, makes an appeal to the county for his colleague Althea Chaplin, the Soutbside county legislator. In the county?s Responsiveness Summary it records Mr. Ryan?s pitch:12 On behalf of fellow County Legislator Althea Chaplin, the speaker indicated that mitigation measures like those being discussed and looked into for the Harbor Brook project should also be remembered for the Midland project. She doesn?t want Midland to be left out. [emphasis added] 1? Title VI Administrative Complaint to the USEPA, ibid. [chapter V, footnote 17. 1? Respomiveness Summary for Clinton CSO Abatement Facilities Finn, ibid. {chapter V, footnote 89] 6. ?2 Responsiveness Summaoi?r Harbor Brook CSO Abatement Plan, ibid. [chapter V, footnote 103] 5. 7 September, 2006 5. Southsiders Ask County about Phase in Pipeline, its Adverse Impacts and Mitigation Southside county legislator Althea Chaplin invites the county?s Lake Cleanup project director, Richard Elander, to a November 22, 2006 Southside community meeting. The community wants answers from the county to its questions regarding the Phase mile-long pipeline, the pipeljne?s impact on the community and the proised-but?withdrawn mitigation. Besides the promised $3 million for development mitigation, the POC is concerned about who is working at the Midland project and whether the county is making ?every legal effort to ensure that local residents have the opportunity to be included in the labor force.?13 The county resists the initial request for workforce data. The POC asks the Onondaga County?s Human Rights Commission for Midland Avenue Phase I and Phase II workforce employment statistics by zip code. The POC can?t get the information through several verbal requests. In September 2005, under Freedom of Information Law (FOIL), the POC formally requests the county for the data. In October the county sends the data. At the November 2005 community meeting the P00 presents a summary of the workforce data? by ethnicity and zip codes. The POC organizes the data to highlight how many local residents from Title VI cormnunity zip codes (13202, 13204, 13205, 13207) being adversely affected by the county?s RTFs are working on the Midland project (see Table 13). Table 13 Midland CSO project workforce . affected zipcodes: 13202, 13204, 13205, 13207) L) - total workforce Caucasian African?Am Blame Am Indian of total 2000 Phase I: 16 0 2 0 0 12.5 2005 Phase II: 158 3 2 2 1 5.1 Five local residents of color working on the RTF is a poor showing. The POC doubts that the county made ?every legal effort to ensure that local residents? were being included in the workforce. At the November 2005 meeting with Blender, the P00 displays the workforce data. Southsiders then ask that the county to keep its mitigation promises. After displaying a map of the pipeline and its affected area, Elander says that the county will meet with Southsiders over mitigation concerns - the pipeline?s adverse impacts, community development and jobs if the Southside organizes itself for that discussion.l Once again, Southsiders' believe the county, signing up ?3 Midland Avenue Combhied Sewm' Abatement Project?s Environmental Assessment, United States Environmtal Protection Agency, July 16, 1999, A-34. 1? Farrell, Martin, Records Access Of?cer for Onondaga County, re: Freedom of Information Law Request Midland Avenue RIF, Letter to Joanne Stevens, POC member, October 2005. 15 Summary of Midland Sewage Plant Wondoiee Data, organized by the POC, November, 2005. i "5 Commissioner Elander's Meeting with the Southside about the Midland Project, POC video, November, 2005 . - ?New and Signi?cant? 8 for three conunittees, each focusing on an area of concern: Disruption and Displacement, i Community Development, and Jobs. 6. Community Organizing Pipeline, Community Development and Jobs Pipeline Dimption and Displacement Committee Committee members notify residents on the pipeline, offering support, and more concretely, offering help documenting the condition of their houses before the pile drivers start shaking homes. People on the pipeline seem reluctant to join a Disruption and Displacement committee. Like the Oxford-Blaine residents, do they worry about being labeled troublemakers, thereby losing the ability to get their concerns resolved with the county? i Community Develoment Committee In preparation for calling committee members together, a community organizer from Syracuse United Neighbors meets with a sta?person from Syracuse Model Neighborhood to develop a dra? community development plan. The staffperson reports that the county won?t mitigate unless it is forced to. This pessimism effectively shuts down the organizing e?'ort. Jobs Committee Kw") Southsiders join the Jobs committee. It meets ?ve times with the president of the local Building Trades, Bill Towsley. He creates ajob plan? for the community to submit to the county and the trade unions. This plan would create 10 quality jobs over the next ?ve years for quali?ed affected residents chosen ?cm Syracuse?s ?Built on Pride? pre- apprenticeship training program. Both the county and the trade unions would share the burden of paying union wages. The 10 selected workers would get on-the-job training and at the end of ?ve years could take the jotu'neyman test based on the trade they worked in - carpentry, pipe ?tting, iron working, or electricity. This plan would cost the county $1.6 million. Such mitigation represents only a fraction of one percent of the Lake Cleanup project?s projected budget of $550 million. The trade tmions say they are willing to participate and pay their share. In February 2005, while looking over the plan, the county tells Mr.Tows1ey that it remains very irritated. It says it has lost time and money regarding the Midland sewage plant; it seems to blame the P00 for resisting its technology. There is no word whether this small amount will be made available to mitigate the Southside?s adversity. The POO-interprets this silence as a loud from the county. ?7 Southside Jobs committee proposal, January - February, 2006. 9 September, 2006 7. Conclusion As the county builds the Southside sewage plant and lays its 12ft. diameter conveyances, the disruption is much worse than the county originally describes to the community and to the USEPA. The county the dislocation of residents, length of road closings, effects of piledriving and blasting. But just as harmful as imposing disparity on a ?protected? community, is the county?s powerful message ?if you speak up, we will punish you.? Through the behavior of the federal, state and county governments chronicled here, it is clear to the FCC that this execution of the especially on the Southside, is a case of instimtionalized racism. C. Downtown December 2002?: The board of the Armory Square Association, an association of businesses and residents of this vibrant Downtown historical district, vote to only discuss mitigation and not the CSO abatement technology. May 2005: In the 2005 Clinton Street CSO Abatement Project Facilities Plan, the county lists its mitigationlspecial costs at $6.3 million. In a footnote, these costs are said to include:18 Temporary and permanent replacement parking, site enhancements, residential relocations, business relocations, and demolition costs, as warranted. Special costs associated with site includes property acquisition, architectural enhancements, contaminated soil disposal and construction access bridge, as warranted. January 2006: In the Responsiveness Summary Clinton CSO Abatement Facilities Plan Kw) based on comments at a November 2005 informational meeting, the county writes:19 The county has consistently stated our commitment to replacing any parking we take ?om this area due to our construction and the completed project. February 2006: At the Clinton Street public hearing on the 2005 Clinton Street CSO Abatement Facilities Plan, president of the Armory Square Association Joe Rainone says:20 The Association has not taken a formal stand on the technology nor the location of the proposed facility. The Association has however formed a Mitigation Committee with representatives of the Downtown Committee and we have had good faith mike with the County on many of the construction related issues and mitigation of impacts on the Armory Square area. August 2006: At the county legislature?s public hearing on property condemnations and easement, Armory Square business owner John Butler says that all the business owners agree that county?s plan isn?t good for Armory Square. But the merchants - quick learners from the Southside experience don?t demand a better CSO technology and thereby, hope to secure Armory Square?s $6.3 million mitigation package. 1? Clinton Street 0.90 Abatement Project Facilities Plan, ibid. [chapter 111, footnote 18], Table 5-1 1. 1? Responsiveness Summary for Clinton (:30 Abatement Facilities Plan, Onondaga County, January, 2006, 5. ?1 2? Responsiveness Summary for Clinton cso Abatement Facilities Plan, ibid, [chapter v, footnote 34], 3. ?New and Signi?cant? 10 I. D. Westside September 2005: At the informational sessions on the two proposed Westside RTFs and their conveyances, some residents declare that they aren?t necessarily happy with the plans for their neighborhood but they want to make sure they get mitigation. - - November 2005: At the public hearing on the 2004 Harbor Brook CSO Abatement Project Facilities Plan, Westside?s county legislator Ed Ryan notes that the community has submitted a list of suggestions for mitigation. In its Responsiveness Summary of the public hearing, the county commissioner Elander?s lists mitigation possibilities:21 - sidewalks on Genesee Street in areas not receiving sidewalks under the ?Automobile Row? improvement down to the underpass and down State Fair Boulevard. - sidewalks on Grand Ave. and Velasko Road where they do not currently exist. - ?mding assistance fer necessary repairs to enable Frazer Pool to be re-opened. - acquisition of the property on the west corner of Grand Ave. and Delaware Street where there are currently two multi-family houses and a former bar to convert to use as a park, play?eld, playground or similar recreational kind of area. - additionally, be pointed out the athletic practice fields already constructed by the county in the retention basin [in Harbor Brooks? upper basin or Western Lights area]. The commissioner noted that the county intends to do as much as we practically can within the monies made available through the County Legislature. E. Summary This mitigation history shows how the public process is corrupted. By using mitigation not only as a ?carrot? but also as a ?stic the county silences opposition to its mediocre and disruptive sewage plants. Twice, during the 2002 negotiations, an elected representative approaches a POC member, quietly reporting that ?the amount is now $5 million,? and then million.? Clearly, the county works hard at buying silence regarding its favored technology. When ?bribes? don?t work, the county makes sure everyone sees what happens to those who stand in its way. 2' Responsiveness Summary for Harbor Brook CSO Abatement Facilities Plan, ibid, [chapter V, footnote 103] 6. 11 September, 2006 The State Pollutant Discharge Elimination System (SPDES) Permit Process on the C80 Long-Term Control Plan 1 I September, 2006 November, 2005: POC submits to USEPA a full report on the 2005 draft State Pollutant Discharge Elimination System (SPDES) permit process. That report is the ?rst submission of ?New and Signi?cant? material for the USEPA reconsideration of the Title VI complaint against Onondaga County and the NYSDEC. March, 2006: From the USEPA, the FCC hears will re-notice the draft permit. April 3, 2006. The POC writes to the NYSDEC asking when it plans to send out the revised draft. April 5, 2006: The NYSDEC 1Writes the POC saying that it is still working on this second revision of the draft SPDES permit and that the POC will be noti?ed when the permit is re- noti?ed. . Currently: No news item the NYSDEC on the re?noti?cation of the draft SPDES permit regarding the Syracuse Metropolitan wastewater treatment plant and its CSO LTCP. ?New and Signi?cant? 2 Contact Information The Partnership for Onondaga Creek 340 Midland Avenue Syracuse, NY 13202 (315) 478-4571 nencndagacr?laolccm A Study in Environmental Racism: ?New and Signi?cant? Regarding Title VI Claim The Partnership for Onondaga Creek Syracuse, New York September, 2006 ?Ex Addendum A. City of Syracuse v. Onondaga County, 04-0718-cv (2nd Cir. 2006) B. US EPA, Of?ce of the Inspector General Report: Needs to Conduct Environmental Justice Reviews of its Programs, Policies, and Activities," September 18, 2006 The Partnership for Onondaga Creek Syracuse, New York September, 2006 A Study in Environmental Racism: ?New and Signi?cant? InformatiOn Regarding Title VI Claim 03R-04-R2 Page] of28 Loislaw?" Additions! NYSBA member bene?ts through Loisiaw CITY OF SYRACUSE v. ONONDAGA COUNTY, 04-DTlS-cv {2nd Cir. 2906) CITY OF SYRACUSE, SYRACUSE URBAN RENEWAL AGENCY, v. ONONDAGA COUNTY and ONONDAGA COUNTY DEPARTMENT OF DRAINAGE AND SANITATION, ATLANTIC STATES LEGAL FOUNDATION, STATE OF NEW YORK and THOMAS C. JORLING, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Plaintiffs, 2.3 ACRES OF LAND IN THE CITY OF SYRACUSE, NY, No. 04-0718-cv. United States Court of Appeals, Second Circuit. Argued: September 14, 2004. Decided: September 21, 2006. City of Syracuse and the Syracuse Urban Renewal Agency appeal from an interlocutory order, which joined the City entities as Third-Party Defendants to a pre-existing Clean Water Act action, and from a final judgment entered on January 5, 2004 in the United States District Court for the Northern District of New York (McAvoy, J.), which declared that the County had authority to condemn City property for the purpose of constructing a sewage treatment facility, denied the City's motion for summary judgment, granted the County's motion for summary judgment condemning the properties, and ordered the properties condemned. The Court of Appeals, Hall, Circuit Judge, held that: joinder of the City to pro-existing action was proper; and questions under New York law concerning which County entity or entities had authority to condemn City?owned land, and whether the Prior Public Use doctrine applied, are certified to the New York Court of Appeals. Affirmed in part and questions certified. PETER D. CARMEN, (David N. Gerber, on the brief) NacKenzie Hughes LLP Syracuse, New York,.for 9f24!2006 Page 2 of 28 CHRISTINA u. PEZZULO, I. Onondaga County Department of Law, Syracuse, NeW-t rasasarg' .r BEFORE: SACK, RAGGI and HALL, Circuit Judges. HALL, Circuit Judge: Almost twenty years ago, the Atlantic States Legal Foundation initiated a Clean Water Act lawsuit against Onondaga County to force the County to clean up Onondaga Lake. The parties eventually signed an Amended Consent Judgment, which required the County to complete various sewer remediation projects in order to comply with state and federal law. The County proposed constructing one such facility on land owned by the City of Syracuse. Despite community opposition, the City administration appeared to support the project. At the last moment, however, the Syracuse Common Council voted against the property transfer. In an effort to prevent the derailment of the project, the County moved to join the City and the Syracuse Urban Renewal Agency ("City") as Third-Party Defendants in the ASLF lawsuit. The District Court granted the motion, and the County served its Third-Party Complaint, by which it sought to condemn the City property. In response to cross-motions for summary judgment, the District Court interpreted certain state laws and Onondaga County Administrative Code provisions concerning whether or not the approval of the Syracuse Common Council was required before the Commissioner of Drainage and Sanitation could condemn City land for sewer district purposes. The court entered judgment allowing the County to condemn the land without such approval. See Atl. States Legal Found. v. Onondaga'ccunty Dep't of Drainage Sanitation, 2001}. The City argues that not only was the District Court precluded from joining it as a party to the litigation, but also that the court erred in its interpretation of the state and county statutes at issue. We affirm the District Court's joinder decision but, because of ambiguities in the statutory construction of New York State and Onondaga County law regarding which County entity or entities may condemn City land and the process they must follow, we certify questions relating to that issue to the New York Court of Appeals. We retain jurisdiction so that, upon receiving a response from the New York Court of Appeals, we may rule on this appeal. BACKGROUND In 1988, ASLF, a not?for-profit membership organization dedicated to protecting and restoring natural resources and preserving the environment, brought a citizen lawsuit under 505 of the Federal lWater Pollution Control Act, against Onondaga County and the Onondaga County Department of Drainage and Sanitation ("County"). The ASLF alleged that the County had violated the Water Pollution Control Act and the New York State Environmental Conservation Law by discharging untreated raw sewage into Onondaga Lake from the County?owned and operated Metropolitan Syracuse Sewage Treatment Plant. The ASLF contended that, as a consequence of the discharges, Onondaga Lake did not meet the water quality standards authorized by the New 9l24I2006 Page 3 of 23 York State Department of Environmental Conservation New York State and the DEC later intervened as Plaintiffs in the lawsuit. A. The SyracuseFOnohdags County Sewer System Syracuse, the largest city in Onondaga County, is located at the southern end of Onondaga Lake. In 1907, Syracuse began constructing an extensive sewer system?n? which, among other attributes, combined the collection of storm water and sewage in the same pipes. According to an Environmental Protection Agency Report, during heavy rainstorms or snow melts, the l"already overloaded collection and treatment system is subjected to added stress" because the volume of water flowing through the system exceeds its hydraulic capacity. EPA Review of No Significant Impact and Environmental Assessment (July 16, 1999}. In order to avoid sewage backup in basements during those periods of wet weather which occur approximately fifty to sixty times per year numerous Combined Sewer Overflow points located throughout the system would discharge raw sewage and storm water runoff into three Onondaga Lake tributaries. The sewage discharges impaired the water quality to such an extent that Onondaga Lake and its tributaries exhibited high bacteria levels. In addition, the EPA Report indicated that "the residents of the project area [were] subjected to the odors arising from the decomposition of the organic matter trapped in the 0305 and contained in discharges from the CSOs along Onondaga Creek during a storm event." Id. Since at least the late 1970s, the County has made efforts to resolve the sewage discharge problem. A 19?9 CEO control and abatement study examined several alternative technologies and, after considering capital and operating costs, environmental impact, and other factors, selected "collection and treatment in specific CSO drainage areas" as-"the recommended CSO abatement master plan for the Syracuse metropolitan service area." Midland Ave. Reg'l Treatment Facility Alternative Site Evaluation Overview Document 2.1 (Nov. 1999}. The Midland area in the City of Syracuse was selected as a site for CSO abatement because it was situated "at the general confluence of three major interceptor sewers in the County's combined system," in close proximity to the main interceptor sewer. Id. A 1991 update to the 19T9 study suggested certain modifications to the 19T9 program but did not change the Midland Avenue location as a sewer project site. The Midland Avenue Project ("Midland Project"} was designed to decrease the discharge of raw sewage and untreated storm water into Onondaga Creek by constructing a Regional Treatment Facility. The City and the Syracuse Urban Renewal Agency owned the real property upon which the County sought to construct the Midland Project. The County's effort to condemn the Midland site became the subject of a third party action in the ASLF litigation and is the subject of the present appeal. B. The Consent Judgment and the Amended consent Judgment The parties settled the ASLF lawsuit with a Judgment on Consent, signed on January 21, 1989, which established a timetable and schedule for bringing the discharges into 9.9422006 Page 4 of 28 compliance with pertinent statutes and regulations through completion of an upgrading project. The County agreed, inter alia, to devise and implement a Municipal Compliance Plan to improve the sewer system so that it did not run afoul of state and federal laws. The Consent Judgment also provided that the ASLF and DEC could seek various sanctions against the County for non?compliance with its terms. The County did not submit its proposed Municipal Compliance Plan and Draft Environmental Impact -Statement until January 1996.-This document summarized the- - results of the evaluations and proposed a cost?effective strategy for remediation of the water quality problems associated with the Syracuse Metro plant and C503. The ASLF and DEC determined that the County's proposed plan did not Satisfy the requirements of the Consent Judgment. Following negotiations, the parties agreed to and executed an Amended Consent Judgment ("Amended Judgment?), entered by the District Court on January 20, 1998. The Amended Judgment superseded the 1939 Consent Judgment and included the proposed improvement projects contained in the Municipal Compliance Plan along with several supplements and conditions. The Amended Judgment provided milestone compliance dates by which the County was to complete specific projects, and stipulated daily penalties for failure to comply with that schedule. The document contained numerous CSO abatement projects to be constructed by the County, including the Midland Avenue Regional Treatment Facility ("Midland The Midland RTF, which the Amended Judgment situated near Oxford Street and Onondaga Creek, was envisioned as capturing overflows during heavy storms: storing the overflows on a short?term basis; removing, disinfecting, and storing the floatables and gross solids from those overflows; and eventually REF) delivering the contaminants to the main interceptor sewer for treatment at the main Syracuse Metro plant, while discharging a small percentage of the disinfected water into Onondaga Creek.[fn2] A 30,000 square foot aboveground building would be built to house the facility and equipment. Along with the below-ground disinfection tank, the Midland RTF would comprise approximately square feet, or 1.8 acres. In addition, approximately 7,700 feet of new pipeline would be constructed to carry sewage and waste water to the Midland RTF. An engineering study anticipated that the facility ?-operating only during and after storm events would provide substantial water quality benefits to Onondaga Lake. The total project cost was estimated at $75 million, with the EPA expected to contribute over $45 million. C. City Participation in the Site Selection The City and County disagree on the extent of City participation in the site selection for the Midland RTF. The City asserts that it did not participate in the Amended Judgment negotiations, and claims that its absence was the result of exclusion by the County. The County, for its part, responds that the City had been actively involved in the development of the Midland Project. The City proffered an affidavit from ASLF President, Samuel Sage, in which Sage averred that, in 1997, he had been involved in "all negotiation sessions" among the parties to the 9?4f2006 a) Page 5 of 23 litigation; he urged County representatives to bring the City into the negotiation sessions "to insure the successful and timely implementation of any negotiated settlement," particularly because the CEO components would be located in the City; and his efforts were "emphatically rejected." {Sage Aff. $9 a, 5, 7). The City also points to statements by the Onondaga County Executive and County Attorney, both before and after execution of the Amended Judgment, indicating that modification of the document was not an option. - While the City may have been excluded from the final Amended Judgment negotiations, the record reveals ample participation by City representatives in ongoing discussions concerning Onondaga Lake pollution. For example, during public hearings in 1993, hosted by the Onondaga Lake Management Conference the City announced that it was "dedicated to joining with the County and the other members of [the to design the most effective cleanup possible at the least cost to the City taxpayers, the City and County taxpayers." OLMC Public Hearing at 10-11 (June 30, 1993}. Countering Sage's affidavit, the County notes that, on August 6, 1997, the ASLF, County, U.S. Environmental Protection Agency and City met to discuss the proposed Amended Judgment and the Midland Project. The County also points to the fact that, from 1998 to 2001, it held or participated in numerous public meetings with community members and City officials {from the Mayor's Office and Common Council} concerning the Midland Project. In December 1998, pursuant to the New York State Environmental Quality Review Act N.Y. Envtl. Conserv. Law 8-0101 et seq; {McKinney's 1997}, and the National Environmental Policy Act the City consented to the County's designation as Lead Agency in the environmental review of the Midland Project. As part of that review, the County conducted a public hearing on the proposed Midland RTF in March 1999 having provided notice of the hearing to City representatives and heard from many Syracuse residents who expressed opposition to locating the plant in the Midland area. The County made available to the City a February 1999 Midland Facilities Plan which it had commissioned; a November 1998 Environmental Information Document concerning the Midland Project; and a November 1999 Alternate Site Evaluation analysis, in which the Midland site scored significantly higher than four other local sites. As part of the SEQRAKNEPA and funding approval process, the County forwarded these and other documents to the EPA, which issued a Finding of No Significant Impact and an Environmental Assessment on July 16, 1999. In September 1999, the City, as a member of the OLMC, voted to adopt a resolution approving and endorsing the Amended Judgment. In December 1999, the County solicited public comment, and Syracuse United Neighbors, a grassroots community organization, among others, responded with its concerns. Also in December 1999, the EPA distributed a responsiveness summary and final Finding of No Significant Impact and approved a $45 million grant to fund the Midland Project. In response, ASLF, along with twenty-three organizations and individuals, filed suit in the Southern District of New York asserting that the EPA had wrongly determined that it was not required to prepare an Environmental Impact Statement before releasing federal funds for the Midland Project. The district court granted summary judgment '91'24/2006 Page 6 of 23 to the EPA, a decision upheld on appeal. See Atl. States Legal Ebund., Inc. v. Browner, No. 2000 WL 1234659 Aug. 31, 2000}. aff'd sub nom. Atl. States Legal Found. Inc. v. Whitman, 14 F. App'x 76 [2d Cir. 2001). In December 2000, the County held a public hearing to consider approval of and funding authorization for the Midland Project. The public hearing minutes reveal that residents of the neighborhood in which the Midland RTF was to be built espressed opposition, even outrage. The President of the Syracuse Onondaga NAACP termed the placement of the plant I'environmental racism." Onondaga County Legislature Public Hearing Minutes at 45? (Dec. 4, 2000). Nevertheless, the County Legislature subsequently issued resolutions authorizing the construction of the Midland RTF project and bonds to fund it. The City lands which the County sought to condemn were devoted to various public uses: a public street and right-of?way; low?income public housing {a nine-unit apartment building) operated by the Syracuse Housing Authority; and a public playground and greenfopen spaces for the adjacent low-income housing units. In early 2001, the City Administration publicly announced that it supported the acquisition of the property needed for the Midland Project. At a February 2001 meeting, SURA voted to approve a Redevelopers Statement for Public Disclosure and to authorize publication for sale of the property upon which the Midland RTF would be built, designating the County as an eligible redeveloper for the Midland RTF site. In April 2001, the County submitted an Intermunicipal Agreement to the City, which included property purchase offers, a proposed takings map, a $3,000,000 mitigation plan for the Midland neighborhood, and a Neighborhood Redevelopment Initiative Plan. The City and SURA reviewed, negotiated, and ultimately accepted the County's proposal, and the City administration submitted the documents, along with appropriate legislation, to the Syracuse Common Council during the week of April 23, 2001, and recommended approval of the property transfer. In May 2001, the Common Council considered the County's property transfer proposal, but withheld action until it could retain an engineering firm to compare the cost of sewer separation an alternate sewer system technology with the cost of the Midland Project. At a Common Council public hearing later that month, many area residents voiced their opposition to the sale of the City property. In August 2001, the engineering firm commissioned by the Common Council issued its report, which concluded that sewer separation would be neither a cost effective nor an environmentally viable alternative to the Midland RIEh fn4 Also during this time period, City residents contacted Common Council members and reiterated their opposition to the Midland Project. On October 1, 2001, the County Legislature adopted Resolution 268 which authorized the County Executive to purchase the properties. Also on October 1, the County Legislature, noting that the City had failed to approve the property transfers required for the County to comply with the ACJ, petitioned the 934/2006 Page 7 of 23 Governor and the New York Legislature for state legislation amending Section ll.53(f] of the Onondaga County Administrative Code which the County at the time viewed as requiring Syracuse Common Council approval before Onondaga County could acquire by condemnation land owned by the City of Syracuse. The State never acted on this resolution. On October 9, 2001, the Common Council finally considered the County's proposal to sell the properties and unanimously voted against the property transfers. It also rejected the proposed Intermunicipal Agreement. PRDCEDURAL HISTORY Following the Common Council's rejection of its purchase offer, the County moved in November 2001 to join the City and SURA as Third-Party Defendants in what was by then the fourteenuyear-old litigation. The County brought the joinder motion pursuant to the All lWrits Act, and Rule 19{a) of the Federal Rules of Civil Procedure, seeking an order: joining the City and SURA as parties for the purpose of permitting the court to exercise its continuing jurisdiction to decide whether City and SURA?owned property could be condemned; invoking the court's inherent equitable powers and powers under the All Writs Act to assume jurisdiction over the City; suspending application of the limitation contained in OCAC ll.53(f} with respect to condemnation of Citywowned property requiring Common Council approval; (4) granting the County leave to commence a condemnation proceeding and granting its condemnation petition; (5) enjoining the parties from filing collateral proceedings; and (6) awarding costs and attorneys fees. The County served the motion on opposing counsel. Due to the parties' confusion regarding the joinder procedure, the District Court issued an order dated December 7, 2001 directing the County to file and serve its joinder motion on the and other parties, and directing the to respond by raising objections to joinder but not discussing the merits of the action. The County filed a second joinder motion in January 2002, seeking limited joinder of the City under Federal Rules of Civil Procedure lgfa} and 21, as well as the All Writs Act. The County claimed that limited joinder of the City was necessary to implement the terms of the Amended JudgmentIr and that without such joinder the parties could not obtain complete relief. The joinder motion emphasized the City?s approval ofr or lack of objection to, the Midland Project over the years, until the Common Council's October 2001 vote rejecting the property transfers, which imperiled implementation of the Amended Judgment's compliance plan. In this iteration of the joinder motionIr the County dropped its earlier strategy of seeking to suspend application of OCAC The City objected, charging that the County was attempting to condemn City land without Common Council consent, in violation of state law and the County administrative code. The City insisted that the County had excluded it from Amended Judgment negotiations and the County should not now be allowed to impose 93452006 Page 3 of28 the terms of the Amended Judgment upon it for the purpose of condemning its lands, particularly because the County had had ample opportunity over the course of the fourteen year ASLF i litigation to join the City. The City also contended that joinder was unnecessary under Rule 19(a) because complete relief could be afforded among the existing parties, given that City land was not required for construction of the Midland RTF (alternate sites had been considered), and because the DEC, already a plaintiff, could, through its own statutory authority, condemn City land, thus making the City's participation unnecessary. Following oral argument in February 2002, the District Court rendered a decision from the bench. The court vented its frustration in having overseen the case for "many, many years" during which the Midland RTE project had been "stalled," stating "[tJhe people in Onondaga County and the residents of the City of Syracuse deserve to have something done, especially since nobody is going to disagree, City, County or State, that the lake is a mess and it needs to be cleaned up and we have to do something about this. . . . I'm gonna get it over with today." Atl. States, No. (N.D.N.Y. Feb. 11, 2002) [transcript at 24?25}. The District Court then granted-the joinder motion pursuant to Rule lSta}, explaining that "[mJuch of the property referenced in the plans pursuant to the consent decree is located in the City and is subject to the control of City entities. Thus, the County and the plaintiffs will need either City approval or City involvement in order to bring an effective outcome of this case." Id. at The District Court found that the City would not be "greatly prejudiced by joinder" because it had been involved, "to a limited extent," in the ASLF litigation by - participating in or having the opportunity to participate in kg?) discussions concerning the Amended Judgment's remedial measures, and because the County was not seeking to enforce the terms of the consent decree against the City.?ld. The court further opined that the County was simply seeking to institute condemnation proceedings in the same court overseeing the consent decree rather than in state court where the parties might be subjected to "duplicative liability" and where "an inconsistent decision could result." Id, at 28. In addition, the District Court held that discretionary joinder under Rule 21 was appropriate because the City had "previously been cooperating with the County in finding a solution to the Onondaga Lake problem," but only after the City had discontinued its cooperation was its presence necessary and, consequently, there had been no unnecessary delay in joining the City. Id. Finally, the District Court predicated joinder on the All Writs Act. Observing that "substantial money and effort has been expended to help develop the instant plan to attempt to clean up Onondaga Lake," and that, if joinder was not permitted, the parties would likely have to renegotiate the consent decree and expend even more time and money on litigation rather than cleanup, the court concluded that the exceptional remedy provided by the All Writs Act was appropriate. Id. at 29. The court again pointed out that the County was not seeking to enforce the terms of the consent decree against the City or hold the City as a non-party in contempt for violating those terms, nor was it seeking to circumvent the due process rights available to the City under the state's Eminent Domain Procedure Law ?led/C 9f24f2006 Page 9 of28 Id. at 30-31. The County then served on the City its third-party summons and complaint, along with a notice of condemnation and notice of pendenoy. In its complaint, the County asserted that the City's rejection of the County purchase offer had prevented the construction project contemplated by the Amended Judgment, and that the County was entitled to an order: pursuant to the All Writs Act, assuming jurisdiction over a condemnation proceeding pursuant to the granting the taking of City and SURA property under the power of eminent domain; holding that the March 1999, December 2000, and May 2001 public hearings, inter alia, satisfied the EDPL's public hearing requirements; and providing the City either no compensation or just compensation for the taking. The complaint also sought a declaratory judgment declaring the County's right to seek such an order. The City moved for summary judgment on the third-party complaint, contending that the County lacked authority to institute eminent domain proceedings. In arguments relevant to this appeal, the City asserted that condemnation was - inappropriate because OCAC 11.53{f) prohibited the County from condemning City land without Syracuse_Common Council approval. It also contended that the Prior Public Use doctrine barred the County from condemning the property, as the Midland RTF would destroy the public uses to which the properties had been, and continued to be, devoted. The County opposed the motion and cross-moved for summary judgment, contending that it could condemn City property and that the properties were not being used for public purposes, given that the public street had been converted into a dead end and the-apartment building was vacant and boarded up. On the issue of condemnation, the County argued that when the Commissioner of Drainage and Sanitation sought to condemn property, he needed Syracuse'Common Council approval as required by DCAC however, when the County Legislature authorized the condemnation, no such approval was needed, and therefore the County could condemn the City land. The District Court: granted the County's motion for declaratory judgment; (2) denied the County's motion for summary judgment with leave to renew, pending service of proof of filing and publication on the City, along with a further motion for summary judgment; denied the City?s motion for summary judgment precluding condemnation; granted the City's motion for compensation for the property; and denied the County's motion for attorney's fees. See Atl. States, In denying the City's motion for summary judgment on the condemnation issue, the District Court generally adopted the County's reading of the State statutes and the County Administrative Code. The District Court reasoned that, pursuant to the relevant county and state law provisions, when the County Legislature, as opposed to the Commissioner of Drainage and Sewage, authorizes condemnation, Syracuse Common Council approval is not required. The court thus concluded that, in this case, the County was authorized to condemn the property at issue. Id. at 341-42. 9/24f2006 The District Court similarly denied the City?s motion for summary judgment on the issue of the Public Use Doctrine. The court concluded that, given the "significant disputes over whether the property has been abandoned, summary judgment is i?appropriate- Atl . States, 233 F. Supp. 2d at 342. However, it held that even if the City properties sought by the County were already devoted to public use and were not abandoned, the County's use of the land for sewage treatment purposes created a "greater-public need," that the circumstances here were "special, unusual, or peculiar" so as to not warrant application of the public use doctrine, and that direct or implied legislative authority for condemnation existed. Id. at 342-43. The County filed a renewed motion for summary judgment, as directed by the District Court. In a stipulation for entry of order of condemnation and final judgment, entered January 5, 2004. the City and County agreed, inter alia, to exchange statements of just compensation. On the same day, the District Court entered an order of condemnation for additional properties (the "additional properties" order}, a Rule 54(b] order directing entry of judgment in the third-party action, and final judgment. The City timely filed a notice of appeal, appealing from the joinder, declaratory judgment, condemnation, and additional properties orders, as well as the final judgment. DISCUSSION The City raises three arguments on appeal: the District Court erred in-joining it as a Third-Party Defendant; the Syracuse Common Council did not adopt an ordinance consenting to the County's condemnation of city lands, and consequently the County is prohibited from condemning the City lands at issue; and' the District Court misapplied the Prior Public Use doctrine, which barred the County from condemning City lands. We affirm the District Court's decision on the joinder issue. However, because the New York and Onondaga County laws at issue do not clearly answer the question of whether Onondaga County may condemn land within the City for sewer district purposes without obtaining approval from the City's Common Council, and because the construction of those laws has important ramifications for the City and County and implicates larger policy concerns, we certify five questions to the New York Court of Appeals. I. Joinder On appeal, the City challenges its joinder to the third party action on a number of fronts. It contends that the conditions for joinder under Fed.R.Civ.P. 19{a) and 21 are not satisfied,l?n5 the District Court erred in joining the City under the All Writs Act, and that Fed.R.Civ.P. 14 does not permit joinder of third party defendants under the circumstances presented in this case. A. Standard of Review we review for abuse of discretion the District Court's decision under Rules 19 and 21 to join the City in the litigation. Page 10 of28 9224:0006 n-r" Page 11 of23 Jonesfilm V. Lion Gate Int?l, 133 {2d Cir. 2002}. A district court "abuses" or "exceeds" the discretion accorded to it when (1) its decision rests on an error of law [such as application of the wrong legal principle) or a clearly erroneous factual finding, or its decision w-though not necessarily the product of a legal error or a clearly erroneous factual finding cannot be located within the range of permissible decisions. Zervos V. Verizon New York, Inc., 353 1-152 {2d Cir- 2001) {footnotes omitted}; see also 7 Charles A. Wright, Arthur R. Miller a Mary Kay Kane, Federal Practice Procedure, Civil 3d 1688 at 505, 50? (West 2001} ("The grant or denial of a motion to bring in or drop a party lies in the discretion of the judge. . . . The trial court's exercise of discretion will not be disturbed on appeal unless an abuse is cf. Sutherland v. Mich. Dep't of Treasury, aggagag, (6th Cir. 2003} {reviewing motion to drop misjoined party under Rule 21 for abuse of discretion}. We also review joinder under the All Writs Act for abuse of discretion. Uhited States v. Int'l Bhd. of Teamsters, gasses; 43 [2d Cir. 2001). B. FEderal Rules of Civil Procedure 19(a) and 21 Rule 19, entitled "Joinder of Persons Needed for Jus Adjudication" provides, in relevant part: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if in the person's absence complete relief cannot be accorded among those-already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may as a practical matter impair or impede the person's ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19in). We have held that the court determines that any of the criteria set forth in Rule lgia) is met, then it must order that the absent person be joined as a party." Johnson v. Smithsonian Inst., (2d Cir. 1999). Rule 21, entitled "Misjoinder and NonuJoinder of Parties," provides in relevant part: "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any-stage of the action and on such terms as are just." Fed.R.Civ.P. 21. Although Rule 21 contains no restrictions on when motions to add or drop parties must be made, the timing of the motion 9f24f2006 Page 12 of 28 may influence the court's discretion in determining to grant it. Thus, the court typically will deny a request that comes so late in the litigation that it will delay the case or prejudice any of the parties - to the action. 7 Wright, Miller Kane, 1638.1 at 510. Cf. In re merrill 5 Co., Inc. Research Reports Sec. Litig., 214 F.R.D. 152, -154 (holding that District Courts have broad discretion to drop or add parties under Rule 21 "when doing so would serve the ends of justice and further the prompt and efficient disposition of the litigation" {quotation omittedJ}. In its brief on appeal, the City asserts, in a heading, that "the conditions for joinder under Rules 19(a) and 21 are not satisfied." Appellants' Br. 30. Its argunent, however, is devoted solely to the inappropriateness of joinder under Rule 19. In a footnote, the City contends that the District Court's reliance on Rule 21 was misplaced because that Rule is read in conjunction with Rules 19 or 20, and could not serve as an independent basis for joinder. fn6 ?Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal." Norton v. Sam's Club, {2d Cir. 1998}. "Pursuant to this rule, we have held that an argument made only in a footnote was inadequately raised for appellate review." Id. Because the City touched upon its Rule 21 argument only in a heading and footnote in its brief, it has waived any challenge to joinder based upon this Rule. The City contends that joinder is unnecessary under Rule lQia}{1) because complete relief may be accorded among those already parties, the DEC possesses the authority to exercise the power of eminent domain under New York law to condemn land and convey it to the County, and {ii} lands are not needed to implement the Amended Judgment. At the same time, the City acknowledges that the DEC has declined to exercise its condemnation authority over property, despite repeated entreaties by the County to do so. New York Environmental Conservation Law 3?0305 provides the DEC Commissioner with statutory authority to "acquire any real property which he deems necessary for any of the purposes or functions of the department, by purchase or as provided in the eminent domain procedure law." Accordingly, the DEC, if it so desired, could have resolved the impasse by initiating condemnation proceedings against the properties, thereby obviating the need for a third-party action. The DEC, however, chose not to do so. Upon learning that a New York State Assistant Attorney General was present at oral argument on this appeal, the panel invited him to explain why the State had not moved to acquire the property. The Assistant Attorney General responded that the State had not taken a formal position in this "secondary litigation" because the State endeavors to act consistently with all of its counties and it did not want to act one way with one county and a different way with another county. City of Syracuse v. Onondaga County, No. Di?OIls?cv (Oral Argument, Sept. 14, 2004]. "nun-H 62DZ.hm1 934.0006 Page 13 of 28 In light of the State's position, the question becomes whether, under these circumstances, "complete relief" may be accorded among those already parties to this lawsuit. The answer is clearly no. Even before the Common Council's October 20D1 refusal to transfer the land to Onondaga County, the State had refrained from exercising its condemnation authority, and it confirmed at oral argument that it would not exercise that authority in the future. Because complete relief cannot be accorded among those already parties, joinder of the City was necessary under Rule 19(a](1) to accord the County complete relief.[fn7 The City also points out that the Amended Judgment referenced only a general geographic area for the Midland RTF and that the County's November 1999 report revealed at least three other non-City/SURA sites for the facility. It contends that since the Midland RTF did not have to be sited on CityXSURA?owned land, joinder was not necessary to accord the County complete relief. A joinder motion, however, is not an appropriate vehicle by which the City may revisit the County*s decision made many years previously to reject alternative sites for the Midland RTF. The argument is simply not relevant to whether joinder under Rule 19(a} is proper. See generally Broadway Schenectady Entm't Inc. V- County of Schenectady, ?523: 29.3.: (3d Dep't 2001) (refusing to annul County's determination to acquire property for use as a community police center despite petitioner's claim that the County had-other available sites). Furthermore, while the City asserts that it was prejudiced by joinder more than three years after the Amended Judgment was negotiated, these protests ring hollow. As the District Court found, the City had been l"involved, to a limited extent in this litigation" and had "participated in or had an opportunity to participate in several discussions regarding the remedial measures to be implemented under the consent decree." Atl. States, No. Feb. 11, 2002} (transcript at City officials had maintained involvement in the C30 abatement project for years, and had communicated their approval. The need for joinder arose late in the process, and only at the point when the Common Council reversed the course the City had earlier signaled and rejected the transfer of property. Almost immediately the County sought to join the City to the lawsuit. The District Court did not err when it found that the City's previous involvement negated prejudice and that joinder had not been unduly delayed. The District Court thus did not abuse its discretion in joining the City under Rules 19ta] and 21. C. Federal Rule of Civil Procedure 14; The All Writs Act On appeal, the City also argues that the District Court erred by failing to analyze joinder under Rule 14, which governs third-party practice.[fn8] The City did not raise its Rule 14 argument in the court below. This Court generally does not consider an argument raised for the first time on appeal. See Singleton v. Wolff, ?g?jh?hig?, We decline the City's invitation here, having found joinder appropriate on other bases. Finally, we need not reach the issue of joinder under the All - _9f24;?2006 Page 14 bf 28 Writs Act because we conclude that joinder was otherwise proper. II. County Condemnation Power A. Standard of Review This Court reviews the grant of summary judgment de novo. Physicians Comm. for Responsible Med. Johnson, spy {2d Cir. 2006}. "Specifically, because the district court's disposition ?presents only a legal issue of statutory interpretation . . [w]e review de novo whether the district court correctly interpreted the statute.'" Perry v. Bowling, gag [2d Cir. 1996) (quoting White v. Shalala, (2d Cir. 1993) (alteration in original) . E. State Statutes and the Onondaga County Administrative Code The arguments of the parties, the decision of the District Court, and the resolution of this appeal hinge on the interpretation of certain provisions of the Onondaga County Administrative Code, both in relation to each other and in relation to certain New York State statutes. Thus a review of the relevant statutes is usefdl to our discussion. Against the backdrop of the City's and County?s development of their respective sewer systems, and eventual consolidation, the State Legislature passed statutes and the County Legislature adopted an administrative code reflecting the evolution of Onondaga County's Sewer and Public Works Commission into a Sanitary District. In l933, the New York State Legislature passed the Onondaga County Sanitary and Public Works Act {"Public Works Act"), Chapter 568, which created the Onondaga County Sewer and Public Works Commission. The statute provided, inter alia, that the Commission of Public Works could acquire lands by condemnation, with title taken in the name of the County. This provision generally remained unchanged until 1952, when the State Legislature granted the Commission the power - {tic acquire, in the name of the county, by purchase or gift, or condemnation, lease or other means, real property or rights or easements therein, or other property, necessary or convenient for its purposes to acquire, in the name of the county by condemnation real property or rights or easements therein necessary for its purposes including but not limited to the real or other property of a municipal corporation. Onondaga County Public Works Act, 1952 N.Y. Laws, ch. 315, 8 (footnotes omitted, emphasis added}. In 1953, the State Legislature passed Chapter 855, which again amended the Onondaga Public Works Act. Chapter 855 incorporated numerous protections that specifically benefitted the City of Syracuse. Particularly important to this appeal, the Legislature removed the Commission's authority to condemn land, including "the real or-other property of a municipal corporation," conferred by the 1952 amendments and, in its place, substituted the following: "no such real property or rights or easements 934/2006 Page 15 of 23 therein of the city of Syracuse may be acquired by condemnation without the consent and approval of the common council of the city by ordinance duly adopted." Onondaga County Public Works Act, 1953 N.Y. Laws, ch. 855, 5. In addition to the above amendment to section 5, the 1953 amendments also amended 6 of the Onondaga County Public works Act. As amended, 6 required that "[w1henever [al report includes a proposed district or extension or the acquisition or construction of a sewer or sewers andfor plants, treatment plant or plants or public works within, serving or including any portion of the city of Syracuse, a copy thereof shall be filed with the common council of the city." Id. at 6. Section 6 provided that, if the Board of Supervisors tentatively approved a project, a public hearing was required. After the hearing, the Board was authorized to approve or disapprove a proposed project. Section 6 further mandated that the Board could not "approve or establish or extend any sewer district [or] plan . within or serving the city of Syracuse," or reduce or diminish the size of any sewers in Syracuse or abandon or discontinue any of the same sewers, without "first having obtained the consent thereto of the city of Syracuse by its common council by ordinance." Id. In the early 1960's, Onondaga County became a charter county under New York law and adopted its own administrative code, the CORE. Among other things, the County Charter and the OCAC provided for a County Executive and County Legislature rather than a Board of Supervisors and replaced the Commission with the Commissioner of the Sewer District. Of particular relevance to this appeal, the Onondaga County Charter repealed the Onondaga Public Works Act. Article ll-A of the OCAC however, incorporated chapter 568 of the laws of 1933, as amended. The OCAC set out the powers and duties of the Commissioner of Drainage and Sanitation (formerly the Commissioner of Public Works}, which had "each and every power and duty in relation to county facilities . . as was heretofore given to the Onondaga public works commission." OCAC The OCAC spelled out the Commissioner's role as follows: To have jurisdiction, control, possession, and supervision of existing sewer systems and projects heretofore established . . . and all such sewers, plants and projects hereafter established . . . and to make alterations, additions, improvements, betterments and extensions thereto, and have all the rights, privileges and jurisdictions necessary or proper for carrying such power into execution. Provided, however, that nothing in this paragraph is intended to nor shall it be construed in any way to supersede the powers herein specifically granted to the county legislature or the city of Syracuse. OCAC 11.53le). The next OCAC subsection, 11.53tf), imported, almost word-for?word, the provision from the 1953 amendments to the Public Works Act concerning the Commissioner's power to acquire property. Section 11.53{f) permitted the Commissioner To acquire in the name of the county, . . . by condemnation, real property . including but not 9f24l2006 Page 16 onS limited to such property of a municipal corporation. Provided . . no such real property or rights or easements therein of the City of Syracuse may be acquired by condemnation without the consent and approval of the common council of the city by ordinance'duly'adopted. (emphasis OCAC 11.54, entitled "Establishment," similarly tracks the Public Works Act of 1953. Like 6 of the Act, OCAC 11.54 provides that whenever the commissioner's report involves a proposal relating to the City of Syracuse, a copy of the report must be filed with the Syracuse Common Council. The County Legislature considers the commissioner's report, and tentatively approves or disapproves of the plan. If the County Legislature tentatively approves the plan, it must a hold a public hearing. At or after such hearing, the County Legislature "may adopt a resolution approving the [project]. Provided however, that no such construction shall be undertaken without such final approval of the county legislature." Notably, unlike 6 of the Act, OCAC 11.54 does not state that the County Legislature is required to obtain consent of the City of Syracuse before it can establish or extend any sewer district or plan, improvement, extension or project or construct or acquire a sewer or sewers and/or plants or treatment plants or other public works within or serving the City of Syracuse. In 1974, the New York Legislature passed Chapter 955, which again amended the Onondaga County Public Works Act. This latest amendment established the Onondaga County Sanitary District as a successor to the then?existing Sanitary and Treatment Plant Districts. The OCAC incorporated all of the provisions of Chapter 955 as OCAC 11.82. OCAC 11.82 set forth the procedure by which the County Legislature could dissolve the existing sanitary and treatment plant districts and establish the new county?wide sanitary district. Sections 11.82tg) and upon which the County relies in its argument on appeal, provide: After the establishment of the Onondaga county sanitary district, the county legislature may authorize an increase, improvement or reconstruction of the facilities of such district, including the acquisition of additional lands or interests in land therefor in the manner provided in section 11 . 55Efn10] of this article. *?k-ir To the extent not inconsistent with this section, all of the provisions of this article relating to a sanitary district established pursuant to section 11.54Ifn11] of this article shall apply to the Onondaga county sanitary district. OCAC 11.82 {emphasis added}. Apart from the laws that pertain solely to the Onondaga County 9&4z?2006 ?Ia?"r Page 17 onB sewer district, the New York State Legislature has enacted statutes, found in various sections of the consolidated laws, that generally grant counties authority to acquire real property by condemnation. New York Gen. Mun. Law 14, entitled "Condemnation of real property," provides that municipal corporation authorized by law to take and hold real property for the uses and purposes of the corporation, may, if it is unable to agree with the owners for the purchase thereof, acquire title to such property by condemnation." A.municipal corporation is defined in N.Y. Gen. Mun. Law 2 to include "a county, town, city and village." In addition, N.Y. County Law 215, entitled "County property; general provisions" provides that a board of supervisors may condemn real property for lawful county purposes. N.Y. County Law 215(3). Finally, N.Y. County Law 263, codified under Article S-A, "County Water, Sewer, Drainage and Refuse Districts,? provides that the administrative head or body of a Sewer District may condemn real estate that may be necessary for sewer district purposes. C. Statutory Censtructicn: Which County Entity/Entities May Condemn City Land? Before the District Court, the City argued that DCAC 11.53 governs and, pursuant to 11.53, the County is required to obtain approval from the Syracuse City Council before any condemnation may proceed. The County countered that the limitation in DCAC 11.53 applies only to the Commissioner and that the County is able to condemn City property without limitation pursuant to N.Y. Gen. Mun. Law 74 and N.Y. County Law 215(3). The District Court rejected the City?s argument, concluding that City Council approval requirement applies only to the Commissioner, not to the County. In so ruling, the District Court observed that the interpretation suggested by the City "would render the separate definitions given for ?Commissioner' and ?County' in 11.51 of the meaningless." Atl. States, The court further noted that "requiring Common Council approval for the condemnation here would conflict with OCAC ll.82{gj and Id. Specifically, the court concluded that because OCAC ll.82{g} authorizes the County Legislature to acquire land without limitation - a dispensation separate from and supplemental to the power given to the Commissioner the County Legislature is not encumbered by the restriction in 11.53tf) requiring Syracuse Common Council approval in order to condemn City land. To the extent that 11.53 purports to limit the authority of the County Legislature to acquire City property pursuant to the District Court held that 11.53if} is inconsistent with and conflicts with 11.82, if 11.53[f) was read to apply to the County Legislature. Id. Finally, the court noted that such a construction was reasonable in light of the New York State County Law, which allows condemnation by the administrative head of a sewer district. See id. {citing N.Y. County Law 253}. Accordingly, the court concluded that "[t]he restricts the right of the Commissioner, as an employee of an administrative unit of the County, from acting independently to condemn property within the City of Syracuse without the authorization of the City Common Council," but it does not 992422006 Page 13 of23 require the County to seek City Council approval. Id. at 341-42. On appeal, the City contends that the District Court erred in concluding that the County does not need Syracuse Common Council approval for condemnation. The crux of the City?s argument is that the District Court incorrectly presumed that the Commissioner has his own condemnation authority separate from the County's condemnation authority. The City maintains that "[t]he commissioner has no independent authority of condemnation he may only act through the County and any separation of, or distinction between, condemnation authority of the commissioner and the County is incorrect as a matter of law." Appellants' Br. 44. The County argues that the Commissioner's condemnation authority is a permissive additional grant of authority, not a limitation on the County Legislature's power to condemn- The County thus contends that-the requirement of City Council approval set forth in OCAC 11.53(f) applies only to the Commissioner. We find merit in both-parties' arguments. As discussed above, various sections of the New York State Consolidated Laws permit governmental entities to condemn real property. General Municipal Law Te allows any "municipal corporation? to acquire property by condemnation "for the purposes of the corporation"; County Law 215(3) allows the county Board of Supervisors (the County Legislature) to acquire land by condemnation for county purposes; and County Law 263 permits the administrative head of the sewer district to acquire land by condemnation for purposes of the district.[fn12[ However, New York case law holds that where a county, such as . 1 Onondaga, "has adopted its own form of government, the provisions of that county's duly adopted local laws apply instead of those of the County Law," unless the County Law explicitly indicates that its provisions control. Long Island Liquid Waste Ass'n, Inc. v. Cass, 711,, 496 52?, 529 (2d Dep't 1985). See N.Y. County Law 2 [any conflicts between, or limitations of, the provisions of New York County Law and any local law or administrative code shall be decided in favor of the local law or administrative code}- See also Inc. Fill. of Myack Dal/top Vill. I Inc- 59.5793. g;g1ig {1991) (discussing New York Municipal Home Rule Law lOIl){iJ, which gives counties the power to enact local laws in a wide range of matters relating to local concern, as long as the local legislation is not inconsistent with the State Constitution or with any general law of the State]. Section ll.53(f] of the CCAC provides that the Commissioner may not condemn City property without first obtaining Common Council approval. Further, 11.54 of the OCAC requires the Commissioner to gain approval of the County Legislature. These provisions conflict with County Law 263, which allows the administrative head (in this case, the Commissioner of the Sewer District) to condemn property, including City property, without limitationa[fn13 Because these laws conflict, and County Law 263 contains no express indication that it should control, CCAC 11.53if} governs the analysis. Section 11.53{f} clearly limits the power of the Commissioner to condemn City land for sewer district purposes. Whether that 9f24f2006 ?E?n-f Page 19 of 28 section also limits the power of the County to condemn City land for sewer district purposes, however, is less clear. The CCAC defines "County" and "Commissioner" as two separate terms. See OCAC 11.51. Section 11.53(f) {which is listed under the heading of "powers and duties" of the Commissioner), does not mention the County. Thus, on the one hand, because 11.53 does not specifically reference the County's authority to condemn property, and the City points to no provision that would extend to the County 11.53's limitation on the Commissioner's power to condemn land, it might be possible to construe the limitations on condemnation embodied in 11.53if} to apply only to the Commissioner. Nowhere in the OCAC does it state that the procedures set forth provide the exclusive means by which land may be condemned for sewer district purposes in Onondaga County. Nor is there a provision explicitly requiring the County to act through the Commissioner. Further, OCAC 11.53{f) and 11.54 may reasonably be read to provide that when the Commissioner, rather than the County, initiates condemnation proceedings involving City land, more safeguards, including both Common Council and County Legislature approval, are required. This interpretation is supported by the fact that 11.54, unlike Chapter 855 5 of the now?defunct Onondaga Public Works does not require the County to obtain Common Council approval before making any final determination regarding the establishment or extension of any sewage project within or serving Syracuse. Under this construction, the County could condemn City property pursuant to County Law 215(3) or Municipal Law T4, or both. 0n the other hand, the OCAC might be construed to provide the exclusive mechanism for condemning land for sewer district purposes in Onondaga County. Under this scenario, the provisions of the OCAC supersede the County and Municipal laws. This interpretation finds support in 11.54 of the OCAC, which sets forth the condemnation process and provides specific roles for the Commissioner, the County Executive, and the County Legislature. In pertinent part, 11.54 provides that the Commissioner, acting on behalf of the County, creates maps and plans and decides which land should be condemned for sewer district purposes. Once the Commissioner makes such a decision, he is required to elicit the approval of the County Executive and present his recommendation to the County Legislature for its final determination. Under this scheme, the County acts through the Commissioner, and because the authority of the Commissioner to condemn land within the City is limited pursuant to the plain terms of the OCAC the authority of the County to condemn City land is necessarily limited as well. See, Haas v. Nickerson, gamgugasgg, 278 255 [2d Dep't 1967), aff'd [1968) (holding that local law precluded county from condemning land within village except with approval of Village Board of Trustees). In addition, the County argues that Chapter 955, which became OCHC 11.82, repealed all of the prior provisions of Article ll-A_to the extent those provisions were inconsistent with 5 11.82, and to the extent that 11.53{f) limited the Legislature?s acquisition of property, it is inconsistent with and superseded by ll.82(g} pursuant to The County also asserts that both the history and language of that legislation reaffirm the County's unlimited condemnation 9124:0006 Page 20 of 28 authority, given Congress's dissatisfaction with a multi?district system as indicated in the legislative history of the Clean Water Act and the language of 11.82Ig), which contains no limitation on the authority to acquire property. As an alternative, the County posits that ll.53{f} and 11.82(g) might be harmonized to give effect to each provision: the former expressing the limited powers of the Commissioner, and the latter expressing the unlimited power of the County Legislature. The City counters that 11.82{g} merely allows the County to acquire additional land for sewer district purposes. Moreover, the City argues that the New York Court of Appeals has held that repeal of a statute similar to ll.53{f) exempting specific property from condemnation requires "clear legislative language." Soc'y of the Hosp. v. Johnson, ?rearms, i??r is; {1958) . The City asserts that 11.32fi} does not come close to meeting that standard. Even if ll.53{f) and 11.82tg} were ambiguous when read together, the City posits that these sections must be interpreted against a construction that would permit condemnation, because condemnation authority must be clearly delegated. In addition, 11.32tg] makes no mention of condemnation as a means by which the County Legislature may authorize the acquisition of additional lands, a significant omission because "[s]tatutes conferring the power of eminent domain are not extended by inference or implication." Schulman v- People, Agile-2.1.1.2519: 2.5.5.: .243. (1961)- While we find the County's argument on this point unpersuasive, we nevertheless note that OCAC 11.82 is susceptible to different interpretations. Thus, all told, the state laws and OCAC provisions governing condemnation are sUsceptible to conflicting interpretations, the outcome of which determines the resolution of this case. Prior Public Use Doctrine In addition to arguing that ll.53{f) prohibits the County from condemning the property at issue, the City also contends that the Prior Public Use doctrine bars the County from condemning the preperty. The District Court rejected the City's argument. The Prior Public Use doctrine holds that: general grant of power to condemn property does not extend to property already acquired for or devoted to a public use (matter of Central Hudson Gas Elec. Corp. v. Morgenthau, aff'd. . The general rule is that property already devoted to public use can only be condemned by special legislative authority clearly expressed or necessarily implied (New'rork Cent. H.R.R.R. Co. v. City of Buffalo, lgg??igj?l?, Buffalo Sewer Auth. v. Town of Cheektowaga, innings; 51;; (19671}. There are certain narrow exceptions to this doctrine. Lands already acquired for public use "should not be taken for another public use unless the reasons therefor are special, unusual and peculiar." N.Y. Cent. 9494:2006 Page 21 of 28 Co., also, "land devoted to a public use may be condemned for another public use only if the new use would not materially interfere with the initial use." matter of Village of Middleburgh, Q31, 502 109, 109?10 [3d Dep't 1936}. The District Court found that, given the "significant disputes over whether the property has been abandoned," summary judgment was inappropriate Atl: Sta tes, However, it held as a matter of law that even if the City properties sought by the County were already devoted to public use and were not abandoned, the County's use of the land for sewage treatment purposes created a "greater public need" because such use would impede further sewage discharge into the lake. Id. The court then held that the circumstances here were "special, unusual and peculiar" and that the legislature had showed "an express or implied intention that the land should be taken." Id. at 342-43 {quoting matter of City of Rochester v. Rochester Gas Elec. Corp., 283 631, 632 1967)}. The District Court opined that the City's change in position from support of the program to- opposition after the plans had been completed weighed in favor of finding special or unusual circumstances, where forcing the County and State to "start over at this late date would work a significant hardship on them and the taxpayers." Id. at 343. The District Court next held that "Congress's indication that the general water pollution control issue is of great concern," together with the State laws charging the County with maintaining sewage treatment for the County, the County resolutions - indicating the County's desire to comply with the Amended Consent Judgment, and the OCAC provisions authorizing the County to condemn land for sewer district purposes, satisfied the requirement that there be implied or express legislative authority for the condemnation. Id. On appeal, the City claims that the Prior Public Use doctrine prevents the County from condemning City property, given that the land was devoted to public use (streets, low income housing, green space, playground}; that the County's plans would interfere with that current use; and that no state legislative authority existed to prove that the County had the statutory authority to condemn. The City adds that the District Court erred both by not holding a factual hearing to determine whether the circumstances surrounding condemnation for the Midland RTF were sufficiently 1"'special, unusual and peculiar" to overcome any prior public use and also by relying on dicta in Town of Riga to hold that the Prior Public Use doctrine did not apply. In response, the County echoes the holdings of the District Court, stating that the last?minute refusal by the City to sell the property to the County, constituted "special, unusual and peculiar" circumstances. The County also asserts that the City's argument that the District Court should have held a hearing on the issue of prior public use was raised for the first time on appeal; that the properties were not currently used for public purposes; and that legislative authority existed for condemnation. Certification to the New York Court of Appeals- 99432006 Page 22 of 28 Rule 0.27 of the Rules of the Second Circuit provides: 1?Where authorized by state law, this Court may certify to the highest court of a state an unsettled and significant question of state law that will control the outcome of a case pending before this Court." "Certification is to be used in those where there is a Split of authority on the issue, where a statute's plain language does not indicate the answer, or when presented with a complex question of New York common law for which no New York authority can be found." DiBella v. Hopkins, t2d Cir. 2005]). determining whether to certify a question, our Court considers, inter alia, three main issues: "the absence of authoritative state court interpretations of the state statute," Green v. Montgomery, {2d Cir. 2000}; "the importance of the issue to the state," id., and whether the question implicates issues of state public policy. see Home Ins. Co. v. Am. Home Prods. Corp? Bast-man. .522 (2d Cir. 1989); and "the capacity of certification to resolve the litigation. Green, Morris v. Schroder Capital Mgmt. Int'l, 53;, (2d Cir. 2006). In this case, we conclude that these considerations warrant certification to the New York Court of Appeals. A. The Absence of Authoritative State Court Interpretations of the Statutes and The Importance of the Issues to the State It may come as no surprise that no state court has interpreted the condemnation powers set out in Chapters 855 and 955, as incorporated into the OCAC, as this is an exceedingly narrow question that applies to statutes that in turn apply solely to Onondaga County. Moreover, although various principles of New York condemnation law are well-settled, no state precedent directly addresses the question presented in this case concerning the relative powers of the County and the City in condemning land within the City limits. While the answer to the specific question of which County entity may condemn City land may bear only upon the facts of this case, the larger state law questions involving the distribution of condemnation power between two state-created entities implicates important legal and policy questions that we believe are best resolved in the first instance by the New York Court of Appeals. Cf. Sealed v. Sealed, (2d Cir. 2003] {observing that "{WIhere a question of statutory interpretation implicates the weighing of policy concerns, principles of comity and federalism.strongly support certification"); Israel v. State Farm Hut. Auto Ins. 239F.3d12?, 135 (2d Cir. 2000) (noting that issue affected state interests and observing that, in absence of dispositive precedent on issue, state had "a strong interest in deciding the issue[s] certified rather than having the only precedent on point he that of the federal court, which may be mistaken" {alteration in original}1. For example, in" Carney v. Philippone, 332 (2d Cir. 2003], this Court 9294,0006 Page 23 of28 certified questions regarding the Onondaga County Tax Act to the New York Court of Appeals, explaining that apparent inconsistencies in relevant provisions of the Act, which were not elucidated by the smattering of cases discussing the Act, presented circumstances where certification was necessary. See id. at 1?2. A similar situation presents itself here and warrants certification. B. Is the Issue/Are the Issues Dispositive? The resolution of the various issues in this case determines the outcome of this appeal. If the New York Court of Appeals adopts a statutory construction that holds that both the Commissioner and the County Legislature can condemn land for sewer district purposes, then we would affirm the District Court's grant of summary judgment to the County. If the Court of Appeals holds that only the Commissioner of Drainage and Sanitation has the authority to condemn City land for County sewer district purposes, then Common Council approval for condemnation was required, and the District Court?s resolution of the third-party action in the County's favor would have to be reversed. Moreover, if the New York Court of Appeals holds that the District Court properly interpreted the state statutes and OCAC provisions, allowing the County to condemn the land, resolution of the appeal would then depend upon the merits of the City's argument that the Prior Public Use doctrine precluded a grant of summary judgment to the County. If the New York Court of Appeals arrives at that juncture, we would again benefit from its guidance as to whether the Prior Public Use doctrine applies in this case, and we therefore have posed two questions in that regard. CONCLUSION For the reasons set forth above, we affirm the holding of the District Court that joinder of the City and the Syracuse Urban Renewal Agency was appropriate. We conclude, however, that unsettled and significant issues or state law are central to this case, and they involve important policy considerations. Accordingly, pursuant to Second Circuit Local Rule 0.27 and New York Court of Appeals Rule 500.17, we respectfully certify the following question3?to the New York Court of Appeals: - Does the C0unty hays authority, independent from the authority of the Commissioner of the Sewer District, to determine which land may be condemned for sewer district purposes in Onondaga County? - If the County has authority to decide which property may be condemned for sewer district purposes, does ll.53(f) of the Onondaga County Administrative Code which requires common Council approval before the commissioner may condemn land within City limits, extend to the County? To the extent the Common Council approval requirement of'? ll.53(f} extends to the County, 9/242?2006 Page 24 of 28 is that requirement inconsistent with or superseded by which provides that the County Legislature may "authorize the acquisition of additional lands"? If the Court of Appeals decides that the County does indeed have authority to condemn the land in guestion,[fn15[ we would respectfully ask it to address the Prior Public Use doctrine, as follows: - Are the circumstances of the condemnation "special, unusual and peculiar" under New York law, so that the condemnation falls within one of the narrow exceptions to the public use doctrine? If the Court finds that the condemnation is "special, unusual or peculiar," do the provisions of the OCAC authorizing the county to condemn land for use in the sewer district, see CCAC and County Resolution No. 268 (which allocated funds for the purchase of the condemned_properties), express sufficient legislative intent to allow condemnation of the land in this case? we invite the New York Court of Appeals to reformulate these questions in any way that it sees fit. In articulating the questions as we have, we do not intend to limit the scope of the New York Court of Appeals? analysis or its response. The certified questions may be deemed expanded to cover any pertinent further issue that the Court of Appeals thinks it appropriate to address. It is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York State Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a complete set of the briefs, appendices, and record filed by the parties in this Court. This panel will retain jurisdiction to decide the case once we have had the benefit of the views of the New York Court of Appeals, or once that court declines certification. Finally, we order the parties to beer equally any fees and costs that may be requested by the New York Court of Appeals. CERTIFICAIE The following questions are hereby certified to the New York Court of Appeals pursuant to Second Circuit Local Rule 0.27 and 3511!;th as ordered by the Court of Appeals of the Second Circuit: 1. Does the County have authority, independent from the authority of the Commissioner of the Sewer District, to determine which land may be condemned for sewer district purposes in Onondaga County? 2. If the County has authority to decide which property may be condemned for sewer district purposes, does 11.53(f) of the Onondaga County Administrative Code which requires Common Council approval before the Commissioner may condemn land within City limits, extend to the County? ?lezfiC 9?4l2006 Page 25 of 23 3. To the extent the Common Council approval requirement of 11.53tf} extends to the County, is that requirement inconsistent with or superseded by which provides that the County Legislature may "authorize the acquisition of additional lands"? 4. Are the circumstances of the condemnation "special, unusual and peculiar" under New York law, so that the condemnation falls within one of the narrow exceptions to the public use doctrine? 5. If the Court finds that the condemnation is "special, unusual or peculiar," do the provisions of the OCAC authorizing the County to condemn land for nee in the sewer-district, see OCAC ?.11.32lg}, and County Resolution No. 268 {which allocated funds for the purchase of the condemned properties), express sufficient legislative intent to allow condemnation of the land in this case? [fnl] The Director of the Onondaga Lake Improvement Project Office described the system as consisting of "dedicated sanitary sewer laterals and collectors, storm water collecting sewers, combined sewers and catchbasins that collect sanitary wastewater andfor storm water. . . . This combined flow is conveyed to trunk and interceptor sewers within the City, owned, operated and maintained" by the County. [fn2] A report on the Midland Avenue Redevelopment Initiative described the operation of the Midland RTF as follows: Once reaching the RTF, the combined sewage and storm water would flow through a screening device that would remove large solids. After screening, the water is pumped to swirl concentrators devices that use centrifugal force to separate ?settleable' particles and floatables from the water. The water then is disinfected using liquid sodium hypochlorite to kill bacteria, viruses and other pathogens,found in the combined sewage. Because chlorine solutions are toxic to fish and other organisms, the water then goes through a process called ?dechlorination.? Liquid sodium.metabisulfite would be added to the water to ?deactivate' the chlorine making it safe for discharge into Onondaga Creek, which after flowing through downtown Syracuse, enters Onondaga Lake. Approximately 90 percent of the total flow generated from annual precipitation will be captured by the system for conveyance to Metro for treatment. Of the remaining 10 percent, approximately 9.5 percent will be treated and discharged to Onondaga Creek from the RTF. [fn3] The Onondaga Lake Management Conference is an inter-governmental body designed to address water quality issues 9f24f2006 in Onondaga Lake. The City, County, State, Army Corps of Engineers and Environmental Protection Agency are members. [fn4} This finding echoed a 1993 engineering evaluation, conducted pursuant to the Amended Judgment, which concluded that sewer separation in the Midland RTF drainage area was not "a cost-effective alternative to consolidation of these drainage areas." Environmental Engineering Assocs. Sewer Separation Evaluation Mem. at 4 (Oct. 15, 1998}. Ifn5] During oral argument on the joinder motion, Judge Mc?voy twice misspoke when he enumerated the Federal Rules under which the County had moved for, and he had granted, joinder. He stated: "The County moves for joinder based on Federal Rulets of] Civil Procedure 19, 20, 21 and the All 1Writs Act, and "[T]he Court finds the All writs Act, used in combination with Rule 20 and 21, provides a basis for this Court to exercise jurisdiction over the condemnation proceedings." However, the County had never moved nor argued for joinder on the basis of Rule 20. The court's ruling from the bench on the joinder motion concerned only Rules 19 and 21 and the All Writs Act. On appeal, the County argues that joinder is appropriate under Rule 20, which allows permissive joinder of defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. Fed.R.Civ.P. 20(a}. Because the County raises this argument for the first time on appeal, we will not consider it. See Singleton v. Wolff, ifno] This is a curious statement because the District Court granted joinder under Rule 21 in conjunction with Rule 19. [fnT] Having determined that the requirements of Rule are satisfied, this Court need not address the arguments proffered concerning joinder under Rule given that the requirements of the Rule are set forth in the disjunctive. See Johnson, ("If the court determines that any of the criteria set forth in Rule 19{a) is met, then it must order that the absent person be joined as a [an] Rule 14, entitled "Third~Party Practice,? provides, inter alia, "[aJt any time after commencement of the action-a I defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third?party plaintiff.? Fed.R.Civ.P. l?ta). [fn9] Even though the OCAC incorporated the Onondaga Public Works Act of 1933, as amended, it did not include all of the protections afforded the City of Syracuse as provided in the 1953 -amendments [Chapter 855). However, the OCAC did incorporate as 11.53(f] the provision from Chapter 855 that required Common Page 26 of 28 9&41?2006 ?le Page 27 of 28 Council approval before the Commissioner could condemn City property. [fnlO] OCAC 11.55, entitled ?Additions to Sewer System," describes the procedure that the Commissioner must follow once the sanitary district is established to add additional sewer lines or treatment plants. The Commissioner must prepare maps, plans, and cost estimates, as well as indicate whether any private property would be benefitted by such construction. Once the Commissioner gains the approval of the County Executive, he then reports his maps and plans to the County Legislature for their approval or disapproval of the project. Prior to making its final determination, the County Legislature is required to hold a public hearing. [fnll] CAC 11.54, entitled "Establishment," describes the procedure that the Commissioner must follow to "hear all persons interested in the establishment of the proposed district," or the extension and acquisition of sewers. If the Commissioner determines that the establishment or extension of the district is in the public interest, he has to first seek approval of the County Executive and then report his recommendation to the County Legislature. If the extension included land in the City of Syracuse, the Commissioner's report had to be filed with the Syracuse Common Council. The County Legislature would then consider the report, hold a public hearing, make changes, and adopt a resolution approving the establishment or extension, and authorizing construction. [fn12] Although a specific statute takes precedence over a more general statute when the statutes conflict, see Greene v. Uhited States, 1.155 (2d Cir. 1996) ("When two statutes are in conflict, that statute which addresses the matter in specific terms controls over a statute which addresses the issue in general terms, unless Congress has manifested a contrary Williamson v. .16 West 57th St. 00., 519, 5:53, [2d Dep't 1998} (same); see also Cook v. New York State Div. of Parole, "273 n. 4 (2d Cir. 2003) [observing that a well?established rule of statutory construction provides that "a general provision should not be applied when doing so would undermine limitations created by a more specific provision"), it is not apparent that County Law 215(3) and 263 conflict. Section 263 provides that the administrative head may acquire land by condemnation for the "purposes of the district"; it does not, however, clearly state that the administrative head is the only governmental body or administrative agent that may acquire land by condemnation for district purposes. Nor does 263 generally impose limitations on the administrative head's condemnation authority, such that applying 215(3) would necessarily undermine 263. On the one hand, we might construe the more specific County Law 263, permitting the administrative head of a sewer district to acquire land by condemnation, as taking precedence over County Law 215(3), which generally permits the county legislature to acquire land. On the other hand, it may be possible to conclude that, under County Law, both the county and the administrative head of the district have authority to condemn land for sewer district purposes. 924/2006 Page 28 of 28 [fn13] The City contends, as it did before the District Court, that although County Law 263 does not explicitly require the administrative head to gain approval of the county legislature first before condemning land, the Commissioner is, in fact, required to gain such approval. In support of its contention, the City cites the Third Department's decision in Tom Sawyer-motor Inns, Inc. v. Chemung County Sewer Dist. No. l, EEALDJAQZZQ: 305 403 {3d Dep't 1969), in which the court held that sewer districts are merely administrative units of county governments. The City's argument is unpersuasive. As the District Court observed, although Tom Sawyer held that the function of the sewer district is solely an administrative one, it did so in the context of restricting plaintiffs from suing the sewer district as a separate entity, reasoning that all of its actions were answerable by the county. See Atl. States, 233 F. Supp. 2d at 341, n. 6. Notably, Tom Sawyer did not discuss how such a classification affected the sewer district's powers and duties. Further, as the District Court also noted, for certain powers of the administrative heads of the district, approval by the legislative body is explicitly required by statute. See id. at n. see, N.Y. County Law 263 {requiring approval of legislative body before administrative head of water district may enter into certain contracts). [full] Section 5 of Chapter 855 (which the State Legislature passed in 1953, amending the Onondaga Public Works Act) contains language that became OCAC If the New York Court of Appeals decides that the County does not have the authority to condemn City land without Common Council approval, the Court would not have to reach the questions concerning the Prior Public Use doctrine since a finding for the City on the condemnation issue would be dispositive of the appeal. Copyright 2006 Lolslawtom, Inc. Ail Rights Reserved @molters Kluwar mam-nu 924/2006 Mud- Evaluation Report EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities Report No. 2006-P-00034 September 18, 2006 that Report Contributors: Laurette Ansah Erin Barnes-Weaver Dan Carroll Jeffrey Harris Kalpana Ramakrishnan Steve Weber- Abbreviations EJSEAT Environmental Justice Smart Enforcement Assessment Tool EPA U.S. Environmental Protection Agency OAR Of?ce of Air and Radiation OECA Of?ce of Enforcement and Compliance Assurance Of?ce of Environmental Justice OIG Office of Inspector General Cover Photo: Housing impacted by industry. Photo ?rom EPA Region 2 Environmental Justice Website: Sinai? .. g: U5. Environmental Protection Agency 2mm i Of?ce of Inapector General . September18.2006 Glance C-?tlf?i?JS?ffbl' Ir-npitwing the Efll-?ll?tih?ililEl?ll? EPA Needs to Conduct Environmental Justice - . Reviews of Programs, Policies, and Activities What We Found Our survey results showed that EPA senior management has not su?iciently directed program and regional of?ces to conduct environment justice reviews in accordance with Executive Order 12898. Consequently, the majority of respondents reported their programs or emcee have not performed environmental justice reviews. Though some o?ices may not be subject to an environmental justice review, the. respondents expressed a need for further guidance to conduct reviews, including protocols, a fl?ElIJ?lEWOl?k, or additional directions. Until these program and regional of?ces perform environmental justice reviews, the Agency cannot determine whether its programs cause disproportionately high and adverse human health or environmental effects on minority and low-income populations. What We Recommend We recommended that the Deputy Administrator: (1) Require the Agency?s program and regional of?cesto identify which programs, policies, and activities need environmental justice reviews and require these of?ces to establish a plan to completethe necessary reviews. (2) Ensure that environmental justice reviews determine whether the programs, policies, and activities may have a disproportionately high and adverse health or environmental impact on minority and low-income populations. (3) Require each program and regional of?ce to develop, with the assistance of the Of?ce of Environmental Justice, speci?c environmental justice review guidance, which includes protocols, a framework, or directions for conducting environmental justice reviews. (4) Designate a responsible o?ice to compile the results of environmental justice reviews, and reconunend appropriate actions to review ?ndings and make recommendations to the decisionmaking of?ce?s senior leadership. The Agency accepted our recommendations. established resolution procedures. The ashamed? coaster; gamma ?s?k 4! UNITED STATES ENVIRONMENTAL PROTECTION WASHINGTON, geese 0" ascent?" OFFICE OF . GENEW. . NIEMORANDUM. .- SUBJECT: EPA Needs to Conduct summon JuStice Reviews'ofits .. - TO: - . Marcus Peacock Deputy Administrator This is our report on the subject evaluation conducted by the Of?ce of hspector General (01G) . of the US. Environmental Protection Agency (EPA). This report contains ?ndings that describe the problems the 016 has identi?ed and'lcorreCtive actions the 016 recommends. This report represents the Opinion of theOIG and does not necessarily..represent the ?nal EPA position. . Final determinations on matters in this report will he made by EPA managers in accordance With --1. ?le-Wit? . slants 15y mule-leg esteem ;_days .. applicable daily full cost billing rates in effect at the time is $157,433Action Required In'accordance"with EPA Manual 2750, you are required to provide a mitten response tomis a . report within 90 calendar days. You should include a corrective actions plan for upon :1 . -- actions, including milestone dates. We have no objections to the further release-of this report to the public. This report will be available - -- - If you or your staff have any questions, please contact me at (202) 566-0847 or. 'i '5 roderick.bill@epa.gov, or Jeffrey Harris, Product Line Director for Cross Media Issues, at (202) 566-0831 or Sincerely, I a Acting Inspector General .. EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities Table - .- .r . 1 ltrod uctlon .. Purpose .Q .., .. Background .. Scope and Methodology .. 2 EPA Has Not Consistently Performed Environmental Justice Reviews of Programs, Policies. and Activities ..- .. Program and Regional Of?ces Have Not Routiner Performed Environmental Justice Reviews .. Need for Protocols, a Framework, or Additional Directions .. Recommendations .. Agency Response and OIG Evaluation .. Status of Recommendations and Potential Monetary Bene?ts .I. A Regional and Program Office Survey Respondents .Q .. Agency Response .. OlG?s Comments on Agency's Response .. Distribution ..- .. tn 11 16 17 Purpose The objective of this evaluation was to determine whether U.S. Enviroiunentai Protection Agency (EPA) program and regional o?'ices have performed environmental justice reviews of their programs, policies, and activities as required by Executive Order 12898. The evaluation speci?cally Sought to answer the following questions: I Has there been clear direction from Agency senior management to perform environmental justice reviews of EPA programs, policies, and activities? I Has the Agency performed environmental justice reviews? 0 Does the Agency haveadequate guidance to conduct these reviews or is there a need for additional directions or protocols? Background Executive Order 12398, ederai Actions to Address Environmental alas-rice in Minority Populations and Loancome Populations, was 1994. The Executive Order directs all Federal agencies to implement environmental justiceinto its programs as follows: . To the greatest extent practicable and permitted by law. each Federal agency shall make achieving environmentaljus?ce part of its mission by idenn?'ing and addressing, as qvproprial?e, dis'proporiionatehi high and adverse human health or environmental e?ctr of its programs, policies, and activities on minority populations and low-income populations in the United States. In August 2001, the EPA Administrator issued a memorandum reaf?rming the Agency?s commitment to environmental justice. This memorandum directed EPA to conduct its programs, policies, and activities that substantially affect human health and the environment in a manner that ensures the fair treatment of all people, including minority and low-income populations. In addition, the memorandum directed EPA to improve its research and data collection relating to the health of all people, including minority and low-income populations. Four years later, on November 4, 2005, the EPA Adminisnator issued another memorandum reaffinning the Agency?s commitment to environmental justice and directing Agency of?cials ?to implement programs and activities to ensure that they do not adversely affect'populations with critical environmental and public health issues, including minority and low-income communities.? The 2005 memorandum also directed to more fully ande??ectively integrate environmental justice considerations into its programs, policies, and activities? and incorporate environmental justice considerations into its planning and budgeting processes.? However, neither the 2001.nor the 2005 memoranda speci?cally directed program and regional of?ces to assess whether any of their programs, policies, or activities had-disproportionately high and adverse human health or environmental effects on minority and low-income populations. In response to our 2004 report on environmental justice,I the Assistant Administrator of the-Of?ce of Enforcement and Compliance Assurance (DECA) responded in part as follows: Executive Order 12898, rather, requires EPA to review at! of its programs, policies and activities in order to identity and address the disproportionater high and adverse hmnan health or environmental e?zcts on minority imputations and-iow-income populations. This mandate is based on the plain languageofthe Executive Order and is simported by the accompamiing Presidentiai Memorandum. . . The Of?ce, of Environmental Justice (0E1) advised as that, since our 2004 environmental justice report, the Agency has also: . . Integrated environmental justice into each goal of the Agency?s Draft Strategic PlanIssued the Toolkitfor Assessing lli'otentialI Allegations of Environmental I Injustice and the Environmental Justice Smart Enforcement Assessment rTooiLinked its regional and program office environmental justice ae?on plans to the Agency?s Strategic Plan, and developed new action plans for each program and regional of?ceEstablished the as an ex o?cio member of the Agency?s Regulatory - Steering Committee to help ensure that environmental justice considerations are taken into account dining the rulemaking process; 0 Developed in-person and on-line trair?ng in the ?fundamentals of environmental justice?; and - - Developed in-person and on-line training for EPA staff responsible for writing permits under the Resource Conservation and Recovery Act and the Clean Air Act. - 1 EPA DIG Report No. 2004-P-000tl?i, EPA Needs to Comte-tenth: Implement the Intent Qf?the Executive Order on Environmental Justice, March 2004. - 0131 provided us with the following de?nitions of the types-of environmental justice reviews the Agency. performs?Environmental justice assessments?-are comprehensive analyses of - potential disproportionately high and adverse impacts widiin a given - geographic area, or that may arise am a proposed activity. 0 ?Environmentaljustice reviews? or ?environmental justice program evaluations? address potential disproponionately high and adverse impacts resulting from a program','po1icy, onset of activities on all- impacted minority andlor iow-incomecomrnunities. For this evaluation, we sought to identify any reviews of the potential to cause dispmportionately' high and adverse innpacts on minority and low-income populations regardless of how program and regional 'o?ices labeled the reviews. Therefore, this docmnent uses the terms ?analysis,? ?review,? and ?assessment? interchangeably. Scope and Methodology To determine the direction, '?equency, and guidance for environmental justice revieuis, we met with OECA, OEJ, and Of?ce of Air and Radiation (OAR) representatives. We then conducted an" Agency-wide "survey of each of the Deputy Assistant Administrators in the Agency?s 13 program of?ces and each of the-'10 Deputy Regional Administrators on their experience conducting environmental justice reviews of their programs, pelicie's, and activities. We also asked them to describe their satisfaction available guidance and instructions for conducting these reviews, and whether they needed additional directions or protocols. We Selected this population after- discussion with OECA and OEJ suggested that we would likely receives more complete picture of environmental justice reviews and assessments if the Deputy Regional Administrators and Deputy Assistant Administrators serve as our- points of contact.- We mceived 15 completed surveys: 5 Deputy Regional Administrators responded - and 5- program of?ces responded.- OAR provided responses ?om ?ve of its divisions, and the Office of the Administrator provided responses from two of its . of?ces. We did not design our survey to draw inferences or project results. Rather we sought to obtain descriptive information on implementing environmental justice at EPA. Our reSponse rate was 43 percent (ll) of 23 of?ces) which is high for a voluntary survey. Whilethe regional and program offices that responded may not represent all regional and program of?ces at EPA, we received responses from those of?ces directly responsible for environmental programs OAR, Of?ce of Water, Office of Solid Waste and Emergency Response), as opposed to of?ces that function in more of a support capacity O?ice of the Chief Financial Of?cer, Of?ce of General Counsel).- We considered awresponses a?zing ra'ai?ts' og-der to "656 the East infonnatimi available to us. See Appendix rfqtua liaft of'o?ices that responded to our sway. m; 9; aha mam ehd?d an - We Auditi?iia 7-: . Our survey results showed that EPA program and regional of?ces have not performed environmental justice reviews in accordance with Executive Order 12898. Respondents stated that EPA senior management has not suf?ciently directed program and regional of?ces to conduct environment justice reviews. Also, respondents expressed a need for further guidance on conducting these reviews, including protocols, a ?-amework, or additional directions. Until these program and regional of?ces perform reviews, the Agency cannot determine whether its programs cause disproportionately high and adverse human health or . environmental effects on minority and low-income populations. Program and Regional Offices Have Not Routinely Performed Environmental Justice Reviews Although Executive Order 12898 requires environmentaljustice reviews, EPA program and regional of?ces have not consistently performed them. In our survey of program and regional of?ce directors, 9 of the 15 respondents (60 Kw) percent) had not performed reviews as required by the Executive Order. Reasons for not performing these reviews included the absence of a speci?c directive as well as confusion regarding how to perfonn the reviews. In our survey, 13 of the 15 respondents (87 percent) stated that EPA management had not requested them to perform reviews of the Agency?s programs, policies, and activities as required by the Executive Order. Section 6.601 of the Executive Order states that the Of?ce of the Administrator is responsible for ensuring that internal reviews are conducted to demonstrate compliance with the Executive Order. One program of?ce respondent said: Framework, protocols, or ?m?her directions would hehs a program o??iee scope on environmental justice review. Program Q??r?ces would?nd ase?d and relevant a?'amework, era, that is ?exible and weighed against existing commianents and programs that compete ?Jr program resources. Other program of?ces responded that the nature of their programs does not lend themselves to reviewing impacts on minority and low-income populations and, as a result, they believe their programs are not subject to Executive Order 12898 requirements. However, the Agency has not yet determined the programs, policies, and activities subject to the Executive Order?s analysis. EPA has focused on integrating environmental justice into its programs, policies, and activities through developing action plans ?rom each of the program and regional of?ces, and through other activities as-described in Chapter 1. Action plans provide staff with a strategic instrument to ensure enviromnental justice considerations are integrated into all Agency activities. In some cases, the action . plans provide for assessment and performance measurement. . For example, in 2003, OEJ initiated the-Collaborative Problem-Solving Cooperative Agreement Grants Program. This program provides $100,000 cooperative agreements [to affected community?based organizations to help ?nd practical solutions to concerns.- .The Agency awarded $3,000,000 in Fiscal Year 2004 for these cooperative agreements to 30 projects. The Agency also provides ?nancial assistance to external stakeholders through the Emrimnmenrat' Justice Small Grants Program. In Fiscal Year 2004, EPA awarded grants totaling $423,454 to community-based organizations focusing primarily on environmental andfor public health problems of the affected community.= - Need for Protocols, a Framework, or Additional Directions Program and regional of?ces lack clear guidance to follow when conducting environmental justice reviews. The majority of our survey respondents (12 of 15, or 80 percent) stated they would ?nd protocols, a framework, or additional directions useful for conducting environmental justice reviews (see Figure 1). One of the survey respondents said: Given there isn a common Werstanding ofwhot? or [environmental justice review is, it was to ansiver' ?yes or ?no to ques?ons'rhat reaibz required more explanation. L.. We'oa?voeare the na?omvide Agency are ofa consistent methodology for conducting environmental justice reviews. - Figure 1. Summary of Survey Reepontlents? Need for Additional-Guidance Usefulnesa o'f Protocols. Frameworks. or Further Directions from EPA Very Useful Somewhat Very Usen? Useful son-u ewhet Useful I Not Useiisl No Agency?wide guidance exists on environmental justice program or policy review. However, the Agency issued a Toolkit for Assessing Potential Allegations of Environmental Injustice on November 3, 2004. OECA issued the Toolkit given its role as the Na?onal.Program Manager for Environmental Justice. Because no single of?ce has authority to establish binding environmental justice policy, each national program of?ce was required to approve the document prior to its issuance. stated, ?The Toolkit represents current Agency policy with - respect to environmental justice and provides a structured, but ?exible, '1 homework for conducting an environmental justice analysis?. did advise . that they did not design the Toolkit for conducting environmental-justice reviews - of programsand policies,?but for conducting site-speci?c activities, such as issuing-a . - - - .OECA, with has subsequently deVeloped its own environmental justice - review based :on the Toollrit?s Environmental Justice Indicators Framework. Accord in to the Environmental Justice Smart Enforcement Assessment Tool (EJSEAT) guidance document, OECA uses a set of indicators to: Proactiver identify, in a consistent disproportionater high and adversely affected areas (?Areas with Potential Environmental .- Justice Concerns") to assist OECA in making- fair and ef?cient resource - deployment decisions, _-including targeting inspections; and (2) Analyze theseareas, in a. consistent manner, based on demographic (race and income) information, to evaluate and measure how. actions affect areas with minority andfor low-income populations. Thus, EJ SEAT serves both steel for environmental justice into I -. work, aswell as amethodology for. reviewing compliance program withrespectto environmental justice. OEJ envisions that other programlregional offices will develop similar guidance documents for performing . environmental justice reviews. EPA advised that some regions and program offices, such as the Of?ce of Water, have stated in the draft Strategic Plan and in their-respective Fiscal?eat 2006 action-.plans-that they will establish methodologies, like EJSEAT, which identify areas with potential environmental justice concerns and assess progress. Recommendations We recommend that the Deputy AdminisnatOr: 1) Require the Agency?s program. and regional of?ces to identify which programs, policies, and activities need environmental justice reviews and require these of?ces to establish a plan to complete the necessary reviews. (2) Ensure that environmental justice reviews determine whether the programs, policies, and activities may have addisproportionately high and adverse '-healtl1 or environmental impact on minority and low-income populations. (3) Require each program and regional of?ce to develop, with the assistance of speci?c enviromnental justice review guidance, which includes protocols, a funework, or directions for conducting enviromnental justice reviews. (4) Designate a responsible of?ce to compile the results of the enviromnental justice reviews, and (b).recommend appropriate actions to review ?ndings and make to the decisionrnaking of?ce?s senior leadership. Agency Response and OIG Evaluation The Agency agreed with our recommendations. We reviewed the Agency?s comments to the draft report and made changes to the ?nal report where appropriate. Appendix provides the full text of the Agency?s response. so) Status of Recommendations and Potential Monetary Bene?ts . 3 - - . POTENTIAL mnemmr I -.- m.-w1.npuu, n. -. Fru?n?r?.? Flannad Completion cum :?agroadI Ta Suki-at WW Action Of?cial Date Amount Meant 3 ~33. DeputyAdnmImtor - TED mm mm - .mmp?mhmb?ha?mhmm mam. 2 3 TED I amimnmantal inpadon niaun'ly andluw-inm s. 3 TBD mmdregimam?cas. 1 a Dapmymaamur TED . m.md{h} "1 1 isdwadwiha?agmd?hae?mmpiebd Appendix A Regional and Program. Of?ce Sqwey Respondents Regions - "r a? 6' . -. Program 1m, .-.- .nzr. I --.. ..-.. - Of?ce of Solid Waste and Emergency Response Of?ce of Air and Radiation Of?ce of Water Of?ce of Research anqpevelopment - Of?ce of the Administrator -- - . 'f 5 (out of10) 5 (outof 13) ?ency-wlde Response Rate 10 'i0 (out of 23, or 43%} Appende -. Agency Response . .. . . . . . I: - - -. SUBJECT: Response to Draft Evaluation Report 12004-000929, Needs to condone-1 -- 3' - Entdronmental JustiCe Reviews of Its Programs, Policies, and Activities? FROM: . r. -- -- seem:- -- T0: -- Jef??ey?arris - -- Director for Pro Evaluation, Cross-Media Issues Of?ce of Inspector General The United States Environmental Protection Agency (EPA) appreciates the opportunity to comment on the Of?ce of Inspector General?s (01G) Draft Evaluation Report 2004-000929, Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Report). I am sending this memorandum on behalf of EPA Deputy Administrator Marcus Peacock. EPA believes that the Draft Report sets forth cogent recommendations that, with some modi?cation, will help to strengthen environmental justice program. EPA believes that the integration of environmental justice considerations into the Agency?s decisiomnaking processes represents an essential ?rst step in making environmental justice part of its mission, as directed by Executive Order 12898, ?Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations? (Feb. 16, 1994). Enviromnental justice program review is the next appropriate step to follow. Accordingly, the 016?s Draft Report is especially timely, and EPA appreciates the 016?s efforts in this regard. EPA concurs, in general terms, with the ?nding that, instead of conducting environmental justice reviews, ?[t]he Agency has focused on integrating environmental justice into its programs, policies, and activities through the development of action plans from each of the EPA program and regional of?ces. These action plans provide Agency staff with a strategic instrument to ensure environmental justice considerations are integrated into all Agency activities.? However, as noted in comments to earlier drafts, certain aspects of the Draft Report?s research methodology and analysis can be made clear. 11 points out that, in. addition to the tuition plans,.the Agencyhastaken steps to. . integrate environmentaljustim intoits work, For example, for: the ?rst time, is environmental justice considerations into its Strategic Plan, which will improve the Agency?s ability to plan, coordinate, and evaluate its environmental justice priorities. Moreover, EPAlhas .. signi?cantly enhanced its on-line environmental justice mapping and assessinth capabilities; whichshould lead to improved aeootmtability, .e?r'rciency! and, most importantly, improved conditions in environmentally burdened communitiesattaching comments to the Dra? Report. If volt-Iliave any questions the enclosed comments. or any other aspect ofEPA?s environmentalljustice Progrmn, phage contact contact Barry E. Director, O?iee .of Environmental Justice, (202)564-2515. Attachment Response to GIG Data newsman .Needs a; Conduct . Environmental Justice Reviews of Policies, and Activities 12 Response to? OIG Draft Evaluation Report, Needs to. Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities? - General Comments: While EPAtinds the Draft Repoit recommendations to be quite useful, certain aspects, such as the ?Scope and Methodology? Section should be made clearer and more'understandable; Speci?cally, recommends the,_follow_ing: 1- Id?h?t'ifi'?ata hitchhiker Limitations Explain survey Methodology - ?Scope-3nd methodology? Section'should include an explanation ofthe 3113' I analysis limitations of the Draft Report, given that only half of the Agency?s regional of?ces 10) responded to the 016?s survey. (Draft Report Page 3). This section should also esplain the analytical basis Teri 1) aggregating the ?msults'??om the regional and the programo?i'ces', Which are entities with very different institutional roles widrin EPA and have different needs programmatic policy operations versus more location-specific functions); and (2) counting, as separate reSponses, the submissions of different of?ces located within a single region or program of?ce. A discussion of the Draft Report?s limitations would help the reader know whether the data and analysis should be considered representative of conditions andfor needs Agency-wide. Including raw or tabulat'ized data in an appendix to the Final Report would also increase the transparency of the evaluation?s data and analysis. 2. Distinguish between Categories of Evironmental Justice Reviews EPA reiterates its previous recommendation that the survey and analysis of results should distinguish between ?environmental justice assessmen ?environmental justice reviews,? and ?environmental justice program evaluations.? The Draft 6* 016; merit-In . Candis-c Report?s interchangeable use of these terms (Draft Report Page 3) leads to confusion and potentially misleading conclusions. For example, while OECA agrees that the ?[t]here is no Agency-wide guidance in place on environmental justice program or policy review,? it is incorrect to state that there exists ?no established parameters or protocols to follow in conducting an environmental justice review.? (Draft Report Page 6). As noted in the Draft Report, the Tooth for Assessing Potential Allegations of Environmental Injustice provides guidance ?for conducting site-specific activities, such as issuing a permit . . . [and] provides a structured, but ?exible, ?-amework for conducting an environmental justice analysis.? Id. smith: Comments: I. Page 2, ?rst ?ill paragraph. The ?rst sentence should read, ?However, neither the 2001 nor the 2005 memoranda . . - 9(1le men! In endix also 3 13 . Page 2, bullet The sentence should be revised for clarity: ?Developed in- person and on-line training for EPA sta?? responsible for writing permits under the Resource Conservation and Recovery Act and the Clean Air Act.? . Page 3, ?Scope of Methodology,? paragraph 1. As noted above in General Cement 1, identify the Draft Report?s data and analytical limitations and explain the survey methodology with greater clarity. . Page 3, ?Scope of Methodology,? paragraph 2, semance The sentence should be modi?ed, as follows: ?The O?ice General designedthe sampling PIN-7555 a?er consultation with'OECA- and 31 ul . Page 5,13, sentence sentencei'sholild be modi?edglas follows, to accurately show the range of mechanisms that EFA has used to integrate i environmental justice into its programs, policies, and activities: ?The Agency has focused on integrating environments] justice into its asthmatic Apsm?iI-G . Bea??lls it .. _.ndl?p. if; . i Comment-in - c?'?lm??ii'in - Amanda - Note] -. policies, and activities through pl lanning and budgeting processes, development of gt line assessment tools, training mum, pgligy guidance documents, and action plans, the . Page sentence 2. The sentence shouldbe modi?ed as follows to clarify that policy existswitli respect'to environmental In'i addition, consistent with Recommendation #3,?page 7, the sentence should be: modi?ed-to state that the regions and program of?ce's, rather than-EPA, asia which are submitted each [migrant and regional emcee, as well as throqu -s hi I "o'me'rnberof . in ff whole, have not established guidance on'environrnental justice program evaluation or policy review: o??iees have not established guidance on environmental justice program or policy-review. Further, 'eXeegt-I?or the Toolkit, "which addresses site a?i?c assessments, and for assessments conducted under the National Environmental Policy-Act'and in the comp liance assurance context, We found no established paranietcrs or protocols to follow-in conducting an ?environmental justice analysis.?_ 14 - 7. Page 6, paragraph 5, sentence 2.. Clarify that other program of?ces, such as the DIG - - .. Of?ce of Water, and regions have stated in the draft Strategic Plan and in their . respective Fiscal "Year 2006 Action Plans that they will establish methodologies, Appendixc . like EJSEAT, which identify areas with potential environmental justice concerns Notes and assess progress. i: Recommendationscomment-1n (I) Require the Agency?s program and regional of?ces to identify winch programs, appendix policies, and activities need environmental justice reviews and require these - note in i - of?ces to establish aplan to complete the necessary reviews, EPA accepts this Recommendation without modification. (2) Ensure that environmental justice reviews conclude whether the programs, policies, and activities max have'a disproportionater high er-and adverse health or environmental impact on minority mad-QLIoW?income populations, . EPA accepts this Recommendation with modi?cations, as above. The inclusion of the term ?may? provides a protectivemargin. The use of the conjunctions ?and? and have been conformed to track the language ofEaecutive Order 12898. each amt-am and m" ?onal o?ice to develop, with the assistance of the Office . ofEnviromnental, Justice, speci?cjenvironmental justice review guidance, which includes protocols, a harassment direction for conducting .En?ronniental 'il'istice revievvs. - EPA accepts this Recommendation with modifications, as above. The modi?cations clarify F?that each reg-ion and office will be responsible for developing itsown guidance with i "the assistance of the Of?ce of Environmental Justice. A successful environmental justice .. review must combine expertise, both in environmental justice issues and the relevant science surrounding a particular program and pollutant. - . (4) Designate a responsible of?ce to compile of the environmental justice reviews, andfb) ac?ggstoreview ?ndings and makemasses. i . -. aboveihemodr?cation is necessary to existing delegations of authority and to maintain decisionmaking authority with thefo?ice accountable for implementing its program, or overseeing operations ., 5-- within its regions 3. 9. Appendix 0 016?s Comments on Agency?s Response We edited the ?Scope and Methodology? section to elaborate and clarify our discussion on the data and analysis used in our report. (See Page 3) . .- -- As suggested, we edited the report section on categories of entrironmental justice reviews to clarify our position. (See Pages made the correction. (See Page 2) a- - We revised the sentence as suggested. (See Page 89s the commit shove We made the suggested modi?cation. (See Page 3) 4F sentence by ?fe?!ng the er 1 Dung? seq-1.9? regpn which gigo?des this informationdid not change the report since existing statements provide the same information. We added the suggested statement to the report. (See Page 8) 10. We added the suggested word changes and additional information to our recommendations. (See Page 8) 16 Appendix -Distribution.- - Of?ce of the Administrator .r - - - Assistant Administrator for Enforcement and Compliance Assurance Agency Followup Of?cial (the CFO) Agency Followup Coordinator - - . - - . - Audit Followup Coordinator, Of?ce of Enforcement and Compliance Assurance General Counsel Associate Administrator for Congressional and Intergovernmental Relations - Associate Administrator for Public A??airs Acting Inspector General ill- crisp).