04-22526. Notice of Lodging of Second Supplement to the Consent Decree Pursuant to the Safe Drinking Water Act

In accordance with 28 CFR 50.7, notice is hereby given that a proposed Second Supplement to the Consent Decree in United States and State of New York, et al. v. City of New York, et al., Civil Action No. CV 97-2154 (Gershon J.) (Gold, M.J.), was lodged with the United States District Court for the Eastern District of New York on September 23, 2004. In this action, the United States and the State of New York sought a court order requiring the City of New York to come into compliance with the Safe Drinking Water Act, 42 U.S.C. 300f, et seq., and the Surface Water Treatment Rule, a National Primary Drinking Water Regulation, by installing filtration treatment for its Croton water supply system.

On November 24, 1998, the Court entered a Consent Decree in this action which required the City, among other obligations, to select a site for, design, and construct the Croton filtration plant. The City selected a site for the plant at the Mosholu Golf Course in Van Cortlandt Park in the Bronx. However, on February 8, 2001, the New York State Court of Appeals held that the City could not construct the plant at the Mosholu Golf Course Site without first obtaining approval from the New York State Legislature. The City sought, but did not promptly obtain legislative approval to construct the plant at the Mosholu Golf Course Site.

In view of the lack of legislative approval for the Mosholu Golf Course Site in 2001-2002, the parties to the Consent Decree negotiated in 2001 and the Court entered in 2002 a first Supplement to the Consent Decree (“first Supplement”), which required the City to select a new site and modified the deadlines for construction of the filtration plant. The City identified two alternative sites for construction of the filtration plant, a site in the Town of Mount Pleasant in Westchester County, denominated the Eastview Site, and a site adjacent to the Harlem River in Bronx County, denominated the Harlem River Site. The first Supplement to the Consent Decree required the City to conduct some initial study and design work relating to the Eastview Site and the Harlem River Site and to identify its preferred site in a draft environmental impact statement to be submitted on April 30, 2003. The City was to select one of these two sites or, if legislative approval for the Mosholu Golf Course Site was obtained by April 15, 2003 and other requirements were met, the City could instead select the Mosholu Golf Course Site.

Legislative approval for the Mosholu Golf Course Site was not obtained by April 15, 2003. The City failed to select a preferred site under the requirements of the first Supplement by April 30, 2003. However, on June 20, 2003, the State legislature passed a bill allowing use of the Mosholu Golf Course Site for the Croton filtration plant, which was signed into law on July 22, 2003. The State legislation also required that the City conduct a supplemental environmental impact statement prior to selecting the preferred filtration plant site.

On June 30, 2004, the City completed a final supplemental environmental impact statement and selected the Mosholu Golf Course Site as its preferred site for the Croton filtration plant. The City also selected the Eastview Site as its backup site for the Croton filtration plant.

As a result of the City's failure to comply with the April 30, 2003 deadline for selecting its preferred site and the later enactment of the State legislation, the Parties have negotiated a further modification of the Consent Decree, which is set forth in the Second Supplement to the Consent Decree (“Second Supplement”). The Second Supplement supercedes the first Supplement.

The Second Supplement sets forth a modified schedule for the City to construct filtration facilities. Consistent with the terms of the Second Supplement, the City selected its preferred and backup sites. The Second Supplement requires the City to complete construction of the Croton filtration plant at is preferred site, the Mosholu Golf Course Site, by May 1, 2011, and commence full operation of the Croton filtration plant by October 31, 2011. The Second Supplement also provides that, if the United States, State, or the City determines during the course of implementation of the Second Supplement that the City cannot complete the plant at the preferred site within the schedule set forth in the Second Supplement or within a reasonable time period agreed to by the parties, the City shall construct the plant at its backup site, the Eastview Site. In addition, the Second Supplement provides for continued implementation of interim measures and for payment by the City of stipulated penalties in the amount of $180,000 for its failure to select a preferred site timely in accordance with the first Supplement. The City will also spend up to $225,000 for an expert consultant to be retained by the United States and State to assess the feasibility of expediting the City's construction schedule.

The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, written comments relating to the proposed Second Supplement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, c/o Deborah B. Zwany, Assistant U.S. Attorney, Eastern District of New York, One Pierrepont Plaza, 14th Floor, Brooklyn, New York 11201, and should refer to United States and State of New York v. City of New York, D.J. Ref. 90-5-1-1-4429. A copy of the comments should also be sent to Chief, Environmental Enforcement Section, U.S. Department of Justice, PO Box 7611, Washington, DC 20044.

The proposed Second Supplement may be examined at the office of the United States Attorney for the Eastern District of New York, One Pierrepont Plaza, 14th Floor, Brooklyn, New York 11201, and at the U.S. Environmental Protection Agency, Region II office, 290 Broadway, New York, New York 10007. During the public comment period, the Second Supplement may also be examined on the following Department of Justice Web site: http://www.usdoj.gov/​enrd/​open.html. A copy of the Second Supplement may also be obtained by mail from the Consent Decree Library, PO Box 7611, Washington, DC 20044-7611, or by faxing or emailing a request to Tonia Fleetwood ([e-mail]), fax no. [phone], phone confirmation number [phone]. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $18.00 (25 cent per page reproduction costs) for the Second Supplement, payable to the U.S. Treasury.

Karen S. Dworkin,

Assistant Chief Environmental Enforcement Section, Environment & Natural Resources Division.