Friday, January 30, 2015

Defending North Bay . . . Continued

Timothy O'Connor has been waging a lonely war against the Hudson's $600,000 Community Development Block Grant project which would separate storm water runoff from the sanitary sewer system at Front and State streets and direct the storm water runoff into North Bay. 

Last Wednesday, January 21, O'Connor outlined his concerns about the plan in a "My View" in the Register-Star. Of particular concern is that the project will bypass environmental scrutiny because it has been determined to be a Type II action, one not requiring further State Environmental Quality Review (SEQR) or the preparation of an Environmental Assessment Form (EAF). 

This past Wednesday, O'Connor was at the Common Council Public Works Committee meeting offering to make himself available "to explain why the City is flirting with a lawsuit" because of this project. He challenged the Type II exempt action, made reference to "big guns," and warned, "An Article 78 is coming, and the City will lose." (An Article 78 proceeding appeals a decision of a government agency to the New York courts.)

North Bay is part of the state-designated "Significant Fish and Wildlife Habitat" known as Stockport Creek and Flats. Storm water runoff contains salts, oils, trash, sediments, and other pollutants that can harm the ecosystem of North Bay and the Hudson River. 

The pictures that accompany this post, documenting the poor water quality in North Bay on June 21, 2014, are from O'Connor's blog, Hudson Meets Hudson.


  1. Three cheers to Tim O'Connor for bringing truth to power. The City has yet to explain how it can make a major sewer plant renovation on the banks America's most historic river without an environmental impact review -- and this 50+ years after the battle of Storm King put a stop to Hudson River pollution. The City of Hudson should be a leader in the river restoration movement, not a defector.

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  3. Let me try again using less words (which will likely become more words).

    Someone at City Hall has either a very poor understanding of state Environmental Conservation Law, or they're attempting something they wager cannot be presented in plain English.

    Almost a decade ago, the City of Hudson grossly violated federal-state water pollution laws by allowing chlorine to be dumped into the North Bay.

    This was followed by a fine and a Consent Order which forced the city to meet a list of legal obligations it had failed up till then.

    The Consent Order required the finalization of a long term sewer plan which itself required public participation "throughout." (In the end the city got its "LTCP" finalized, but it achieved it disgracefully, without public participation.)

    Also listed in the Consent Order was the need for a city sewer ordinance, requiring that the city's sewer operations and decisions be "open to the public." At §1301 of the city sewer law we read: "It shall be the policy of the City to conduct all business with full disclosure to the public." (Yeah, right.)

    The Consent Order required soil testing, upgrades to the treatment plan, (e.g., clarifiers, pumps, alarms), and a plan to address the problem of outside water leaking into the sewer system.

    Everything was to be conducted under the aegis of public participation, but of the items accomplished by 2015 the public has had no virtually no role in any of it.

    The current sewer separation plan never came before the public (at least not before the grant application in May - an application the public was not allowed to see before its submission).

    But if the separation project wasn't foreshadowed in any of the primary documents required by the Consent Order, is it still a requirement of the order?

    Because anything explicitly required by a Consent Order is automatically exempt from environmental review, it's a no-brainer that our city officials would try and fit the kitchen sink into the technical requirements of the order, if they could. Why not get dig as many holes as you can, as long as there's no required environmental review.

    The operative word is "required."

    If the sewer separation plan was explicitly required by the Consent Order, or by any of the subsequent studies and plans called for by the order, then it certainly would be exempt from environmental review.

    But in every permit, study, and plan that the city cites as its authority for an exemption from the State Environmental Quality Review Act (SEQRA), sewer separation is always and consistently characterized as being an "option," that is "recommended."

    If the planned sewer separation project is not actually required, then it's known as a discretionary action, and anything discretionary is unequivocally subject to environmental "SEQR" review.

    An environmental review must commence with the Common Council as SEQR Lead Agency. The longer the city delays, the nearer it gets to the time the $600K is automatically withdrawn.

    To condense the above, the city is planning an action which is nowhere "required" but which it argues is exempt from environmental review anyway. Any discretionary action must undergo a SEQR review, but the city knows that the body of rules and procedures called SEQRA is enforced by citizens only, and never the state. The original Consent Order required public participation in any plan that weighed alternatives, but what the city did instead was devise its own optional plan, sell it to the public as a "requirement," and then advertise that the outcome would be environmentally friendly. If this isn't brazen enough, previous sewer studies which the Consent Order required be cited as foundational to any future plans and projects actually argued against the current separation project, and on site-specific environmental grounds!

  4. Separating a sewer system is one alternative among several to achieving "CSO control." The city's decision, made without the public, is to pursue an alternative more polluting than any other alternative, including the No Action Alternative, which is to say doing nothing.

    How did I come up with that? From reading the city's previous engineering reports.

    The 2007 Consent Order that followed our chlorine spill into North Bay required a plan that would "document any previous investigation or remediation activities."

    In 2010, the resulting "I&I Plan" dutifully cited the last CSO study conducted by the city, a study which contained a "qualitative review of the need for and possible benefits of CSO control measures."

    Of the CSO controls that would impact the North Bay, the study noted of the current level of street runoff:

    "[E]vidences of somewhat objectionable materials are observed, however these materials (i.e. oil, scums, and urban litter) would continue to exist unless urban stormwater were treated prior to discharge to North Bay.

    "Swimming: CSO control would not result in a beneficial use due to swimming because of the urban stormwater runoff noted above.

    "Fishing: ... CSO control could possibly improve the fishing in the North Bay area, however, the possibly harmful impacts of both the urban stormwater runoff and the possible existence of leachate from the adjacent Hudson Landfill might preclude any beneficial effect of CSO control in regard to fishing. ...

    "Public Health. ... Again, the impacts of the urban stormwater discharges and the landfill presence might continue the existing conditions even with CSO control." (pp. 13, 14).

    Far from recommending a separation of the city's sewer system, the Long Term Control Plan argued instead that:

    "Separation of combined sewers frequently increases the quantity of some pollutants to the receiving water, [when] all runoff is directed to the stream ..."; and that "combined sewer systems can capture 50 to 90 percent or more of total wet weather flow" (p. 3-4).

    The LTCP's consideration rested on an earlier 3-month study of "First Flush Effect," one of the rare times in the city's history when our DPW conducted a required study without being brought to it by civil enforcement proceedings (I include our currently long-overdo studies in that calculation).

    The First Flush analysis of North Front Street's runoff for the same kinds of pollutants found in sanitary sewage quantified the amount of pollutants captured by the treatment plant in the first minutes of a big rain event.

    The conclusion was that the treatment plant capture rate for BODs and TSSs was "large" by the "general guidelines" for estimating the magnitude of first flush effect.

    That this study was conducted before the plant capacity was greatly increased in 2011, combined with the fact that there hasn't been any such study since, is something that should be taken into account. Before 11 months ago, the public didn't even know about the city's first and only study of First Flush Effect, but there's no time left for the knowledge to sink in further.

    Far from the ringing endorsement and fake "requirements" of Hudson's past sewer investigations, the current plan to separate the sewer system is contraindicated by some of the same documents the city is now citing to justify the project's inevitability. The gamble is that nobody will notice, which is a bet the city protects by being as opaque as it possibly can.

    Our highest-paid city employees are keenly aware that increasing pollutants into the North Bay will require an ignorant and compliant citizenry. They'll do everything they can to ensure we stay that way, but we should remind them every once in awhile who it is they work for.

  5. Given that the same firm which produced the City of Hudson's most recent engineering documents can execute its designs as well as compose them, Delaware Engineering's 2010 plan and its 2014 report were arguably produced from a position of self-interest.

    Because Delaware Engineering cites its earlier "I&I Investigation and Remediation Plan" (henceforth "2010 Plan") as the principal authority on the alleged "requirement" of sewer separation, the accuracy and value of that plan warrant scrutiny.

    It is highly significant that the 2010 Plan studied conditions which no longer exist: "This report presents the results of an evaluation of the existing City of Hudson combined sewer system" (p. 3). With this admission, it must be acknowledged that the conclusions of the 2010 Plan are hopelessly outdated for the purpose of evaluating the current storage capacity of the City's sewer system.

    In 2011, extensive upgrades to the City's sewage treatment plant, and to the South Front Street pump station and force main, greatly expanded the processing and storage capacity of the City's combined sewer system. But even though these expensive projects resulted in a measurable decrease in related CSO events, the new conditions are not reflected in either the 2010 Plan or the City's equally outdated NYS SPDES permit (State Pollution Elimination Discharge System).

    To the degree that Delaware Engineering drew upon the recommendations of the previous studies it acknowledged in its 2010 Plan, its immediate predecessor "Combined Sewer Overflows Study, City of Hudson," presented arguments against sewer separation at North Bay by citing the likely adverse impacts to water quality standards (see previous comment).

    Had Delaware Engineering's 2010 Plan heeded the earlier misgivings, or even referred to the City's Long Term Control Plan for Combined Sewer Overflows which is circumspect on the subject of sewer separation, then the arguably self-interested conclusions from the 2010 Plan wouldn't be irrelevant in comparison with the previous studies it ostensibly drew upon.

    The paradox is easily explained. Had Delaware Engineering not focused entirely on the beneficial prospects of sewer separation, conclusions it based on conditions which no longer exist, then the 2010 Plan might have had some future applicability. Notwithstanding the alleged "requirements" of the Consent Order, the outdated premise of the 2010 Plan utterly undermines the authority and value of its conclusions in the present.

    On the other hand, the previous warnings about a potential for negative impacts to North Bay (warnings attended by empirical data which Delaware Engineering also ignored) are as applicable today as when they were written. This is because things like the nature of the City's runoff and measurements of average rainfall are independent of the sewer system, whatever its condition.

  6. Regarding the DPW's fib that the 2007 Consent Order "required" the City to separate its sewers, it was a self-intersted engineering firm which rationalized last year's block grant application by directing us to its previous sewer plan from 2010:

    "The improvements proposed herein will be implemented ... pursuant to the Schedule of Compliance in the Order on Consent" ("City of Hudson I&I Investigation and Remediation Plan, "Schedule of Remedial Activities," p. 11).

    But on closer inspection, the actual details of the 2010 Plan reveal that the so-called "requirement" to separate the sewers is in fact only an "option," and one which is merely recommended.

    "The improvements ... are the most viable options ..."

    Leaving aside the discretionary nature of someone's having made a choice for us (and even under court order, discretionary decisions are not exempt from SEQRA), it is absolutely necessary to ask, "most viable" to whom, and decided by which criteria?

    The very first document required by the Order on Consent was the production of a Long Term Control Plan for Combined Sewer Overflows. In the City's subsequent "LTCP" under "Preliminary Screening of Alternatives, [and] Cost Effectiveness," we find a warning to future decision makers to the effect that "CSO abatement approaches must be thoroughly evaluated in terms of their total cost and the benefits associated with the project. Frequently, the incremental cost of using one particular approach or design storm [sic] can be significant while there is little net environmental gain."

    When weighed against the rarity of CSO events in the City of Hudson, which results from the greatly enlarged system capacity in 2011, the costly CSO abatement option outlined in the "2014 Stormwater Separation Report" will clearly result in a net loss to environmental health.

    The fact that this scenario was already analyzed in the CSO report immediately preceding the current one, and that it was subsequently rejected for its likely negative consequences, undermines confidence in the quality of research which informed the current project proposal.

    Whatever criteria were used to evaluate the allegedly "most viable option" in 2010 - one year before the enlargement of the treatment plant - they cannot have included consideration of the adverse consequences to environmental and public health resulting from a massive increase of unfiltered runoff diverted directly into the North Bay.

    Also required by the 2007 Consent Order was a local sewer law. The "City of Hudson Sewage Disposal Law" of 2008 stated its general purpose as the "furtherance of the health, safety and welfare of its citizens [and] furtherance of efforts to protect and preserve the environment" (§240-2).

    An Article 78 court challenge against the City's "anticipated" claim of SEQRA exemption for its sewer project would obligate the court to contrast the alleged "most viable option" with previous document in the hearing record.

    The current proposal to separate the sewers which is (incredibly) already funded by the federal government, is not only in conflict with previous evaluations in the hearing record, it is out of synch with the requirements of the Consent Order which the City has already accomplished, namely the LTCP and the local sewer ordinance.

    It can't be overemphasized that an "option" cannot be confused with a "requirement."

  7. After looking at the discretionary nature of an "option" (above), the only other term the City uses to justify the project's exemption from environmental review is that it is "recommended work."

    Under SEQRA, it's true that the non-discretionary elements of a Consent Order are exempt from review, but does the same apply to a mere recommendation?

    Following is the entire rationale for the sewer project's "anticipated" exemption from environmental review, found in the principal document which is repeatedly cited as the authority on the supposed exemption. From the 2010 "City of Hudson I&I Investigation and Remediation Plan":

    "The separation of the system is the most viable option for reduction of the I&I [barring] any logistical and/or economic issues that may impact the completion of the recommended work."

    Making choices among "options" is a discretionary exercise, at least according to the state's definition: "discretionary decisions are those where there are choices to be made by the decision makers that determine whether and how an action may be taken" (NYS SEQR Handbook).

    In that case, how does SEQRA rate a "recommendation"?

    From the SEQR Handbook: "Recommendations [that] can be taken under advisement, but not necessarily followed ... are not discretionary decisions."

    That's to say that under SEQRA, "recommendations" are so discretionary in nature, and so obviously related to matters of choice, that they don't even rise to the level of regulated "actions."

    So much for recommendations being sold as requirements.

    Because the planned sewer separation work was not explicitly required by the Consent Order, and furthermore because the outdated 2010 Plan decided on one option over unknown others (at least unknown to the excluded public), the choice made by our decision makers who determined whether and how the action will be implemented was inherently discretionary in nature.

    Among the potential "logistical issues" the City should have foreseen which "may impact the completion of the recommended work," the expectation that discretionary actions are subject to SEQR review ought to have been among them.

    What other issues looked at more closely would reveal just how badly this city is being run?