COUNTY OF ONONDAGA

•

DEPARTMENT OF

LAW

JOHN H. MULROY CIVIC CENTER
421 MONTGOMERY STREET, lOTH FLOOR

NICHOLAS j. PIRRO

SYRACUSE, NEW YORK 13202

COUNTY EXECUTIVE

13151 435·2170
p~

ANTHONY P. RIVIZZIGNO
CouNTY. ATTORNEY

(315) 435-5729

August 26, 2004

Ms. Karen Higginbotham, Director
U.S. Environmental Protection Agency
Office of Civil Rights
1200 Pennsylvania Ave NW
Washington, D.C. 20460
Re:

Title VI Administrative Complaint on behalf of
Partnership for Onondaga Creek ("Complainant")
EPA File No. 03-04-R2

Dear Ms. Higginbotham:
This letter is offered in response to the above referenced administrative complaint
received by Onondaga County ("County") on July 28, 2004. By July 26, 2004 telephone
conversation, Yasmin Yorker, Assistant Director, advised that the County's thirty-day response
period would run from the date of receipt of the complaint. (Ex. 1 Confirmation Letter dated July
28, 2004.) The County submits that the complaint is jurisdictionally and procedurally defective
and should be dismissed without further investigation. 1
Complainant, Partnership for Onondaga Creek (POC), filed this administrative
complaint pursuant to the United States Environmental Protection Agency's (EPA) regulations,
40 CFR Part 7, implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d.

I In the event that OCR decides to accept the Complaint for investigation, the County reserves its right to address
fully the substantive claims raised in the complaint.

 The complainant alleges that the decision of the New York Department of Environmental
Conservation (DEC) dated December 19, 2003 to approve the revised facilities plan for the
Midland Avenue Regional Treatment Facility and Conveyances Project (Midland Project)
constitutes an adverse or discriminatory act in violation of Title VI. The Midland Project is a
CSO remedial project required in the Amended Consent Judgment (ACJ) entered January 20,
1998 in the United States District Court for the Northern District of New York in Atlantic States
Legal Foundation (ASLF)and DEC v. Onondaga County, ("ASLF v. County") Docket No. 88CV-66. (Ex. 2 ACJ.)
While not specifically stati_ng the reason why the December 19, 2003 DEC approval was
adverse or discriminatory, the complainant generally challenges implementation by the· County
of the Midland Project and asserts that the public participation process relating to the Midland
Project was inadequate. The complaint does not point to a single specific act by the County that
constitutes a timely Title VI challenge to federal funding of the Midland Project. Moreover, as
shown below, the complaint simply reiterates arguments made and rejected in Atlantic States
Legal Foundation, Inc. v. Browner, 2000 WL 1234659 (S.D. N.Y. Aug. 31, 2000); aff'd sub

nom. Atlantic States Legal Foundation v. Whitman. 14 Fed. Appx. 76, 2001 WL 792525 (2d Cir.
Jul. 10, 2001) ("Browner"). (Ex. 3) Notably, Browner plaintiff, Agnes Lane, has been identified
by POC as its Title VI complaint spokes person. (Complaint dated April 9, 2004, p. 21) The
County respectfully submits that the above complaint is procedurally and jurisdictionally
deficient and is barred by the doctrine of collateral estoppel.

BACKGROUND AND PURPOSE FOR THE PROJECT

In 1988 the Atlantic States Legal Foundation filed ASLF v. County alleging, inter alia, that
discharges from the sewer system within the City of Syracuse failed to comply with the Federal
Water Pollution Control Act of 1972, as amended, 33 U.S.C. 1342 et seq. ("Clean Water Act" or
"CWA") Alleged violations were due, in part, to mixed discharges into Onondaga Creek of
stormwater and untreated sewage from a number of CSOs during major storms. The action was
resolved by a Consent Judgment entered in the United States District Court for the Northern
District ofNew York on February 1, 1989. The Consent Judgment required the County to

2

 submit a plan and corresponding Draft Environmental Impact Statement to the New York State
Department of Environmental Conservation (NYSDEC) addressing the issues raised in the
complaint. Almost a decade of testing, public discussions, public hearings and additional
litigation followed. (See below pages 9 to 12) In January, 1998, Judge McAvoy issued the ACJ
confirming the CWA remedial projects, which include the Midland Project. (Ex. 2, Appendix B,
III, 2) Browner at p. 2.
The ACJ requires the "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." (Ex. 2, p. 11 para. 14) To that end, the ACJ
describes seventeen speci:fjc projects the County is to construct to address discharges from the
CSOs. (Ex. 2 par. 14 and Appendix B) The Midland Project comprises two of these projects: the
Midland A venue Conveyances Project and the Midland A venue Regional Treatment Facility
("RTF") Project. The conveyances project consists of2,346 meters, or 7,700 feet, of pipeline that
will carry overflows from nine CSO points to the RTF, and provide short-term storage capacity
for those flows. The RTF will remove trash and grit from the water, separate out certain
contaminants and route them to the Metro STP and discharge disinfected water into Onondaga
Creek. Browner, at p. 2).
POINT I
THE COMPLAINT IS AN IMPERMISSIBLE COLLATERAL CHALLENGE TO A
JUDICIALLY CONFIRMED FINDING OF NO SIGNIFICANT IMPACT

A. THE COMPLAINT SHOULD BE REJECTED ON GROUNDS OF RES JUDICATA
AND/OR COLLATERAL ESTOPPEL

The Complaint is simply a collateral challenge to the Finding of No Significant
Environmental Impact ("F/NSEI") by the EPA Administrator· in an Environmental Assessment
("EA") issued on December 23 1999, pursuant to the National Environmental Policy Act, 42
U.S.C. 4321, et seq. ("NEPA") and affirmed in Browner.

(Ex. 4a-c, EA, F/NSEI,

Responsiveness Summary; Ex. 5, NEPA Record Table of Contents.) In Browner, Plaintiffs,
including POC Spokesperson Agnes Lane, fully litigated and/or had a full and fair opportunity to

3

 litigate each and every objection to the Midland Project asserted in the current administrative
complaint.
Consequently, complainants' claims of adverse environmental impact and violations of
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, were resolved in Browner and are
barred by the doctrines of res judicata and collateral estoppel. See, Draft Revised Guidance for
Investigating Title VI Administrative complaints Challenging Permits, 65 C.F. R. 39650, Section
(III)(B)(3)(b), ("OCR may choose not to proceed with a complaint investigation ifthe allegations
in the complaint were actually litigated and substantively decided by a Federal court."); accord,
Wilder v. Thomas, 854 F.2d 605, 616-22 (2nd Cir. 1988) holding that collateral estoppel prevents
a party and a party in privity with a current litigant from re-litigating an issue of fact or law
decided in earlier litigation even when the party was not a litigant in the prior proceeding.
As fully documented in Browner, the County submitted an Environmental Information
Document to EPA on or about November 6, 1998. Browner at p.2. On or about January 13,
1999, the EPA submitted comments to the County and requested additional information
regarding, inter alia, environmental justice concerns, specifically the disproportionate impact of
the project on minority or low-income communities. The County responded on January 25,
1999. Browner at p.2. A public hearing on the proposed Midland project was held on March 23,
1999. (Ex. 6)
On July 16, 1999 the EPA issued a Preliminary Finding of No Significant Impact
supported by an Environmental Assessment, specifically addressing the contention that the
project would cause in disproportionate adverse impact on minority or low income communities.
(Ex. 4a, p.1 0-11) Browner p.2. This is the precise issue that Complainant Lane and those in
privity with her, seek to litigate again here. (See Complaint at III.)
The EPA evaluated and ultimately rejected claims by project opponents that the proposed
Midland Project would have a disproportionately high and adverse human health and
environmental effect on minority and low-income populations. The EPA decision was based
upon examination of the demographic characteristics of the area in which the project by its
nature would have to be located and concluded that:
The RTF must be placed in reasonable proximity to Onondaga Creek, the CSO
conveyance system, and the main interceptor if the project is to meet requirements for
engineering feasibility and cost-effectiveness. Thus the geographic scope for alternative

4

 locations was confined to the near-Creek Corridor, and would result in the same process
of selection regardless of the nature of the resident population. The demographic
characteristics of the population are much the same throughout most of the project area,
and indeed, within much of the Onondaga Creek CSO drainage basin. Therefore, we do
not consider that Title VI has been violated by this action.
(Exhibit 4c, Responsiveness Summary, p. 6.)
EPA further acknowledged that there is a potential for the community in the Blaine Street
area to experience adverse environmental effects due to the loss of open recreational space and
because ofthe disruption associated with construction ofthe RTF. However, EPA found that the
impacts were not disproportionately high and adverse because most of the constmction-related
impacts would be essentially the same regardless of the location of the facility and in som.e cases
they might affect more residents than would be impacted at the proposed location. (Ex. 4a, p.ll)
EPA also found that in planning for the project, the County had taken into account the need to
mitigate any adverse impacts by offering to assist in the temporary relocation of Blaine Street
and Oxford Street residents during constmction, by mitigating the loss of open space; designing
the facility so that disinfection and odor control stmctures would be a reasonable distance from
residential areas, advocating for the construction of new housing within the project area and
exploring alternative locations as practicable. Browner, at p. 4-5.
Addressing the environmental justice and Title VI concerns raised by project opponents
in the course of the NEP A review EPA determined,
... "[o]ur evaluation leads us to the conclusion that the adverse impacts associated
with the project are not disproportionate because the selection of the proposed site
was based on engineering and feasibility considerations; the County has made a
substantial effort in its planning to mitigate the effect of the facility construction
on the community and to ensure that the facility is aesthetically complementary to
the existing architecture, and has undertaken public participation efforts as called
for by the EPA."
(Environmental Assessment, Ex. 4a, at page 11) (See also, July 21, 1999letter from Kathleen C.
Calihan, Director of Environmental Planning Protection, to Mrs. Barbara Lassie addressing the
environmental justice issues, Admin. Record, Vol. 9, Tab T, pp. 003319-3321, incorporated
herein as Exhibit 7.)
Although EPA determined that the Midland Project would not result

in a

disproportionately high and adverse human health and environmental effect on minority and low

5

 income populations, EPA nevetiheless examined alternative locations.

As noted previously,

EPA concluded that engineering, technical and cost considerations limit siting options for the
Midland Project. The EPA noted that it is preferable to locate the RTF at a point where the
combined sewers and new conveyance lines can use gravity to carry the overflows to the new
facility so that the added costs of constructing and operating a pump station and force main could
be avoided. (Ex. 4a, p. 7) ·
The alternative · of constructing a facility on the west side of Onondaga Creek was
rejected because of the technical difficulties and higher costs associated with construction of a
one hundred forty-four-inch (1_44") diameter pipe under Onondaga Creek. Other locations, such
as building the facility between Cortland Avenue and Salina Street were considered but rejected
by the EPA due to increased costs, the need to demolish existing commercial development and
because the alternative locations would not avoid impacts on residents. Also, the need to locate
multiple large diameter conveyance pipes in the Oxford Street right of way would still result in
major construction impacts to the residents of Oxford Street and Cortland Avenue associated
with construction ofthe conveyance and discharge lines. (Ex. 4a, p.6-7).
EPA acknowledged that while construction of the RTF at Oxford and Blaine Streets
would utilize local open space, the only other area with open space would be Kirk Park. In
addition to utilizing parkland, this alternative was found to require construction of large
conveyances, to create more difficult engineering problems, would likely be more costly, and
would not obviate the need for construction of conveyances from West Castle Street to Kirk
Park. See Exhibit 4a, Environmental Assessment at VI( c).
The Finding of No Significant Impact was made final on December 23, 1999, following
another opportunity for public comment on the preliminary findings.

(Ex. 4b, 4c)

EPA's

determination was subsequently upheld in Browner. EPA's findings recognize that given the
very site specific nature of the problem to be addressed (i.e., the remediation of a pre-existing
combined stormwater and sanitary sewer system) decisions with respect to the siting of
necessary facilities and choice of approaches is constrained by the location and operation of the
current infra structure. (Ex. 4a, VI (c).)
The preceding review of the administrative and judicial record establishes beyond dispute
that project opponents, including POC members and those in privity with them, had a full and
fair opportunity to be heard and to litigate their Title VI claims. These claims were fully aired
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 and addressed in the prior administrative and court proceedings and ultimately were decided
against Complainants. These prior proceedings preclude the Complainants' collateral challenge
herein.

B. THE PRIOR FINDING OF NO SIGNIFICANT ADVERSE IMPACT PRECLUDES A
FINDING OF A TITLE VI VIOLATION.

The complaint also fails because Complainants cannot satisfy the threshold finding of a
significant adverse impact.

"If, based on its investigation; OCR concludes that there is no

discriminatory effect (i.e., no_ unjustified adverse disparate impact), the complaint will be
dismissed. 40 C.P.R. Part 7.120(g). See also, Draft Guidance at Section II (A)(3) and Section VI
(B)(4) ("Ifthe impact is not significantly adverse, the allegation is not expected to form the basis
of a finding of non-compliance with EPA's Title VI regulations and will likely be closed.") In
the instant proceeding, the EPA and the Federal Courts have already determined that the Midland
Project will not have a significant adverse impact. Browner These administrative and judicial
findings preclude re-assertions of these claims in this proceeding.
Complainants attempts to overcome the preclusive effect of the prior litigation by
claiming that the EPA did not consider the impact of the technology, alternatives to the project,
and/or the availability of reasonable alternative locations. Clearly, as the preceding discussion
amply shows, the EPA fully considered these factors. The Midland Project was sited at Oxford
and Blaine Streets because the infrastructure causing or contributing to the environmental
problems to be rectified conjoins in that area. As the Environmental Assessment and subsequent
litigation establish, the choice of other locations would not have avoided or obviated disruptions
to the community. In fact, alternative sites likely would have caused more severe impacts. (Ex.
4a, p.ll) The Midland Project was determined to be a significant environmental improvement to
the project area. (Ex. 4a, p.4) As such, the EPA and the Courts determined that the Midland
Project posed no significant adverse impact.
Not only is there is no adverse impact but the Midland Project is "reasonably necessary to
meet a goal that is legitimate, important, and integral to the [County's] institutional mission, [the
provision of wastewater treatment.]." Draft Guidance, at VII (A)(l). Indeed, in ASLF v. County,
the District Court denied a motion to stay implementation of the Midland Project, holding that

7

 the project must proceed in the "interests of the people of the City of Syracuse, the people of the
County of Onondaga, the government of the County of Onondaga, the users of the lake,
Onondaga County's fauna and flora, the inhabitants of the lake, and the greater environment, in
the proper handling of sewage and the protection ofthe state's natural resources." (Ex. 8, p.2)
Under these circumstances, "OCR expects to consider provision of public health or
environmental benefits (e.g., [a] waste water treatment plant) to the affected population from the
permitting action to be an acceptable justification because such benefits are generally legitimate,
important, and integral to the recipient's mission." Draft Guidance, at VII (A)(l). The Midland
Project comports fully with these goals. (Exhibit 4a, Environmental Assessment (II), (III) and
-

(VII)(8)) There is no adverse impact warranting consideration of the within environmental .
justice complaint.
In fact, Complainants have conceded that the location of the Midland Project is
appropriate. Complainants simply prefer a different plan for that site. However, the EPA
considered alternative technologies and its judgment was affirmed in Browner. The Browner
Court sustained a finding of no significant impact and expressly held that: "[I]t is well-settled
that under NEP A the range of alternatives that must be discussed is a matter within an agency's
discretion. Indeed, the range of alternatives an agency must consider is narrower when, as here,
the agency has found that a project will not have a significant environmental impact." Id at p. 6.
The fact that POC members disagree with this conclusion does not create a significant adverse
impact or a legitimate Title VI complaint. Nor may Complainants re-litigate claims that have
been finally decided by the Administrator and the Second Circuit Court of Appeals.
Notwithstanding, Complainants have instituted this Title VI administrative action as another in a
series of attempts to frustrate implementation of the court ordered Midland Project. The issues
raised have been reviewed and rejected. The complaint is without merit and must be dismissed.

8

 POINT II
THE COMPLAINT IS JURISDICTIONALLY DEFICIENT
A. THE. COMPLAINT FAILS TO ALLEGE A SPECIFIC ACTION BY ONONDAGA
COUNTY

THAT

OCCURRED

WITHIN

180

DAYS

OF

FILING

AND

IS

JURISDICTIONALLY DEFECTIVE AS UNTIMELY.
Complainants assert that the complaint is timely because the DEC approved a revised
Midland Project Facilities Plan on or around December 19, 2003. Complainants do not state
why the DEC's approval of the plan is adverse or discriminatory. Rather, the complaint generally
disagrees with the Midland Project and the public participation process regarding the project.
Moreover, Complainants have not pointed to a single, specific County action that occurred
within one hundred and eighty days prior to the filing of their complaint.

2

Consequently, the

complaint is jurisdictionally defective and should not be considered.
Even assuming, arguendo, that the complaint makes out colorable Title VI challenge
against the County, the complaint must be dismissed as untimely. The Draft Guidance states that
under EPA's regulations, a complaint must be filed within 180 calendar days of the alleged
discriminatory act. Draft Guidance, III (B), citing 40 C.P.R. Part 7.120(b) The complaint here
attacks the siting of the Midland Project, the choice of technology, the level of public
participation and the project's alleged cumulative environmental impact. As discussed above,
these were all matters considered and concluded in the NEPA process and appeals.
The Administrator's Finding of No Significant Environmental Impacts, including the
further finding of no Title VI violations contained in the Environmental Assessment and
Responsiveness Summary, was first announced on July 16, 1999, confirmed on or about
December 23, 1999 and sustained on appeal in Browner on or about July 10, 2001. (Ex. 3, 4a-c)
These conditions precedent to the final release of federal funds occurred more than one hundred
and eighty (180) days prior to the filing of this complaint. Draft Guidance, (III)(A)(3) and (B);
40 C.P.R. 7.120(b)(2).
Further, the allegations in the complaint that public participation somehow violated Title VI
requirements are both untimely and without merit.

9

The record demonstrates extensive

 opportunities for public pmiicipation both prior and subsequent to the entry of the ACJ.

3

These

public participation events occurred more than one hundred and eighty days prior to the filing of
the complaint. The public fora included the following:
a. In 1995, the Onondaga County Legislature conducted a "Focus on the
Lake" week comprising public meetings and testimony from experts,
community and business leaders, the DEC, EPA and other public
officials. The purpose of the meetings was to prepare for decisions on
the compliance plans that ultimately would be included in the ACJ.
(Ex. 10, Copy of press release)
b. During August and September, 1997, Onondaga County Legislature
sponsored public meetings, additional study sessions and public
hearing in order to consider whether or not to approve the ACJ. (Ex.
11 Notice)
c. September 3, 1997, the Commissioner of the Onondaga County
Department of Drainage and Sanitation conducted a public hearing on
the proposed ACJ. (Ex. 12, Hearing date page)
d. On October 28, 1997, the DEC conducted a public hearing to consider
the ACJ which was followed by a thirty-day public review and
comment period. (Ex. 13, Hearing date page)
e. The public hearing was followed by certification by the New York
State Attorney General's office that the ACJ, including the Midland
RTF to be located at Oxford Street and Onondaga Creek (its present
location) was in the public interest and in a companion letter, ASLF
agreed with same. (Ex. 14a & 14b)
f.

In January, 1998, Judge MeA voy issued the ACJ confirming the CWA
remedial projects, which includes the Midland Project. (Ex. 2,
Appendix B, III, 2)

g. Representatives from the County's Lake Improvement Project Office
met with community residents on many occasions. These meetings
included a public hearing held on March 23, 1999. (Ex. 4a,

2

Even assuming, arguendo, that approval of the revised Facilities Plan somehow resulted in a Title VI violation,
the County sought approval of that plan on January 31, 2003, more than 180 days prior to the filing of the within
complaint. (Ex. 9)
3
Ms. Lane admits as much in the video accompanying the POC complaint when she states that "we had our due
process." (Complainant's Video "Not in My Backyard" at Counter #20:47 to 21:03) Notably, as Complainants'
chief spokesperson, Ms. Lane, has an engineering background and POC acknowledges that they retained their own
expert to assist them in evaluating information provided by the County on the proposed disinfection technology in
the course of a public workshop on this topic. (Complaint at V).

10

 Environmental Assessment Document (VII)(9); Ex. 5, Table of
contents NEP A record; Ex.6 Public Hearing.)
h. The Midland project was the subject of a complete New York State
Environmental Quality Review Act (SEQRA) and National
Environmental Policy Act public process and hearings resulting in the
EPA Finding ofNo Significant Environmental Impact (F/NSEI) and
the Browner decision. (Ex. 6, hearing: Ex. 4a-c, Environmental
Assessment, FNSEI and Responsiveness Summary)
1.

In December, 2000, the Onondaga County Legislature conducted a
public hearing to consider approval and bonding authorization for the
Midland Project. (Ex. 15, Public Hearing minutes)

J.

The Onondaga Lake Partnership ("OLP") was an outgrowth ofthe
Onondaga Lake Management Conference ("OLMC") created by
Congress in 1990 as an inter-governmental body designed to address
water quality issues in Onondaga Lake and its environs.
LEGISLATIVE HISTORY OF THE GREAT LAKES CRITICAL
PROGRAMS ACT OF 1990, Pub. L. No. 101-596 104 Stat. 30011
4
(1990). The OLMC and more recently the OLP have been conducting
open meetings for over 14 years in order to develop plans for the
improvement of Onondaga Creek and Onondaga Lake. In 1993,
OLMC conducted public hearings to address these issues. (Ex. 17,
1993 Hearing date page and list of speakers) In 1999, the OLP
unanimously passed a resolution adopting the ACJ, including the
Midland RTF, as the OLP plan for improvement of Onondaga Lake.
(Ex. 18, 1999 Resolution)

k. Although legally no longer obligated to do so, beginning in November
2001 until August 2002, the County participated in public meetings
with DEC and project opponents. POC and Agnes Lane participated in
these meetings. Complainants themselves acknowledge this process in
Section V of their Complaint. Complainants refer to the various
proposals that emerged from these meetings, including Complainants'
preferred option at the same site as the Midland Project between
Oxford and Blaine Streets and which includes a significant above
ground facility. (Video at Counter# 18:18 to 18:51) Contrary to
assertions in the Complaint, the County addressed concerns raised in
these meetings. The above ground Midland facility will be placed 250
feet distant from the closest residence, contrasted with prior plans at 90
feet (1998) and 125 feet (1999) from the closest residence. The RTF
will now be within 40 feet of the 200,000 square foot Centro Bus
Garage. Additional storage has been added to the project at POC's
4

The County, the EPA, DEC, the City of Syracuse, the New York State Attorney General and the Army Corp of
Engineers signed the OLP Charter. (Ex. 16)

11

 request, thereby significantly reducing the overall size of the above
ground portion of the facility. (Ex. 19, Map reflecting revisions made
by Onondaga County in response to POC concerns.) These
refinements were included in the revised Facilities Plan submitted to
the DEC on January 31, 2003. (Ex. 8)

1.

In October 2002, the County conducted a public workshop on CSO
disinfection at which POC members, including Agnes Lane, attended.
(Ex. 20, Response Summary, attendance sheet, monograph)
Complainants attached as an exhibit to their complaint portions of
materials from this workshop, entitled "Lake Improvement Project
Office CSO Disinfection Workshop."

All of these public partjcipation opportunities occurred more than 180 days prior to the
filing of the within complaint. The Draft Guidance, relying on EPA regulations at 40 C.F .R. Part
120(b), notes that: "Allegations concerning a discriminatory public participation process should
be filed within 180 calendar days of the alleged discriminatory act in that process. For example,
if complainants allege that the recipient improperly excluded them from participating in a
hearing, then the complaint should be filed within 180 calendar days of that hearing." Draft
Guidance Section III (B.) Complainants have not demonstrated that any portion of the public
participation process was defective and have not made a timely challenge to the public
participation process that has already occurred.

Therefore, the complaint is jurisdictionally

defective and must be rejected.
Moreover, the issue of public participation has been fully litigated and addressed in the
NEP A process. Public participation opportunities were not found lacking:
The residents in the project area were not excluded from participation.
Opportunities for public participation were afforded in the development of the
original CSO control program, the ACJ had a full public notice and comment
program, and the County carried out a program that included neighborhood
meetings with residents, a public meeting, and a public hearing, as well as
discussion ofissues at meetings of the County Legislature.
(Ex. 4c, Responsiveness Summary, p. 6.)
Of course, the County disagrees with some positions taken by the POC based on cost,
construction risk and/or practicality. Notwithstanding, the County compromised considerably in
developing the current plan. Although the Administrator and Court determined that the Midland
Project would not result in significant impacts, the County engaged project opponents in further

12

 discussions, and at considerable expense made additional refinements to the project in an effort
to accommodate their concerns.

Project opponents simply disagree with the choices in

technology made by the County and approved by the Administrator, the State and the Court.
However, the time to challenge the public process and the location and technology of the
Midland Project has long since expired. Further consideration of Complainants' repeated
challenges are jurisdictionally barred and would serve only to delay attainment of the significant
enviromnental and public health benefits to be derived from implementation of the Midland
Avenue Project.

CONCLUSION

For the reasons set forth herein the County respectfully requests that that POC's
Complaint be dismissed and this Title VI investigation be closed.

Very truly yours,
/~/·~

/.-"

~·-------J
c:__../

---~

~~~Christina M. Pezzulo

Senior Deputy County Attorney
CMP/kak

13