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New York State Attorney General Eliot Spitzer failed to win a court order halting New York City sanitation trucks from hauling 2,300 tons of garbage per day from Manhattan through the Lincoln and Holland tunnels to New Jersey. His office had argued that New York City’s Department of Sanitation had failed to consider the impact of airborne soot particles from trucks idling at the tunnel entrances or at the George Washington Bridge before it adopted an interim plan to redirect garbage collected from Manhattan to New Jersey transfer stations. The garbage had once been taken by barge to the Staten Island Fresh Kills landfill, now scheduled to be closed by December 2001. Justice Stanley Parness, ruling in Matter of Spitzer v. Farrell, 400365/00, last week denied the Attorney General’s Article 78 petition, concluding that New York City’s Department of Sanitation had taken the required “hard look at the environmental impact of additional truck traffic,” and that its negative declaration under the state’s Environmental Quality Review Act (SEQRA) was not arbitrary. After conducting environmental studies that focused on particulate matter of 10 micrometers in diameter the sanitation department concluded that its trucking-to-New Jersey plan would not have any environmental impact significant enough to require a full environmental review or to require mitigation of any adverse impacts. The sanitation department did not employ a more controversial standard for particulates measuring 2.5 micrometers in diameter, which includes 90 percent of the particles emitted in diesel exhaust. The agency had once trucked Manhattan’s garbage to piers on the Hudson River for transfer to barges that delivered the waste to a Staten Island landfill. But with the promise to close the dump, the city last year entered into contracts to send the approximately 2,300 tons of Manhattan trash to an incinerator in Newark and two transfer stations in Newark and Elizabeth N.J., where the garbage will be trucked to landfills in other states, Parness’ decision noted. The judge said the Attorney General’s office and the intervenors in the proceeding — SoHo community groups and officials, the Natural Resources Defense Counsel and the American Lung Association of New York — had particularly focused on the impact of the 106 trucks per day trying to get through the Holland Tunnel from Canal and surrounding Manhattan streets. They objected to the department’s failure to perform a “PM 2.5″ analysis of the concentration of the 2.5 micrometer particles, commonly called soot, that can cause respiratory and other medical problems when lodged in a person’s lungs. The department’s conclusion “that PM 2.5 consideration was not warranted was responsibly based,” the judge said, because the U.S. Environmental Protection Agency had not issued standards for monitoring and data analysis for the smaller particulates, and did not expect to do so until 2002. Parness also cited a case from the U.S. Court of Appeals for the District of Columbia Circuit that is scheduled to be argued before the U.S. Supreme Court next month, American Trucking Associations v. U.S. Environmental Protection Agency, 175 F3d 1027, which struck down the EPA’s “sub-PM 10″ standards under its 1997 regulations. He noted that court’s ruling that the agency had engaged in an unconstitutional delegation of legislative power in setting the particulate standard without setting out its criterion for the limitations. “In the absence of an EPA-approved model for calculating PM 2.5 emissions and little to no guidance from the EPA in analyzing PM 2.5 impacts under SEQRA … DOS appropriately limited its review to the EPA’S PM 10 guidelines and modeling. Although petitioners ask the court to impose a higher air quality standard, pursuant to SEQRA, than that currently enforceable under the Clean Air Act … such rule making is neither warranted nor appropriate and courts have declined to do so,” Parness concluded. Assistant Attorney Generals Lemuel Srolovic and Lisa Feiner handled the petition for Attorney General Spitzer. Assistant Corporation Counsels Robert Orlin and Heidi Rubinstein appeared for New York City Department of Sanitation Commissioner Kevin Farrell. Katherine Kennedy and Richard Kassel of the Natural Resources Defense Counsel appeared for the NRDC and the American Lung Association. Jack Lester was counsel for the SoHo Alliance, the SoHo Action Committee and Councilwoman Kathryn Freed.

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