Senate Bill S7086A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7086

                            I N  S E N A T E

                             April 27, 2012
                               ___________

Introduced  by  Sen. ADDABBO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  prohibiting  the department of environmental conservation from issuing
  a permit or entering into a memorandum  of  understanding  authorizing
  the  placement  of certain dredged material for the purpose of filling
  borrow pits in Jamaica Bay

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative intent. Due to the increase in vessel size in
recent years, New York State waterways such as channels, berthing  areas
and  harbors  are  being excavated to maintain sufficient depth for safe
and efficient vessel operation. This process is called "dredging" and is
done by the US Army Corps of Engineers.
  Dredged material is naturally accumulated sediment. Under the US  Army
Corps  of  Engineers,  Dredged  Material Management Plan (DMMP), dredged
material is not sewage sludge, nor has it been  historically  character-
ized as hazardous, toxic or radioactive waste under the Federal Resource
Conservation  and  Recovery  Act  (RCRA) standards. In fact, any dredged
material characterized as hazardous would not be managed under the DMMP,
but regulated by the appropriate responsible agencies and disposed of at
a properly permitted hazardous waste facility. According to  the  United
States  environmental  protection  agency region 2, however, much of the
dredged material does  contain  some  contaminants  at  varying  concen-
trations,  as  does  much  of  the sediment throughout the harbor. These
contaminants enter the waterways of the harbor from a number of  differ-
ent  sources,  many of which originate outside the harbor including many
upland sources. The harbor  complex  itself  is  densely  populated  and
certain  areas  of  the  harbor  complex are heavily industrialized. The
system receives inputs of contaminants from a variety of sources includ-
ing municipal sewage treatment plants, industrial  discharges,  combined
sewer  outfalls, storm runoff and landfill discharge. There are specific
sites which are also suspected  of  being  significant  contributors  to
sediment  contamination in the NY/NJ Harbor System including The Diamond

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15200-03-2

S. 7086                             2

Alkali (Passaic River) site and the Hudson River PCB site. All of  these
inputs  combine  to cause significant contamination of harbor sediments.
This indicates that some contaminants may be present  at  concentrations
that result in an unacceptable risk of toxicity in the testing of aquat-
ic organisms or have the potential to accumulate to unacceptable concen-
trations  within  the tissues of these organisms. This process is called
bioaccumulation.
  The United States environmental protection agency region 2  classifies
dredged material into one of three categories based on sediment toxicity
and bioaccumulation tests:
  1.  Category  I:  Sediments  that  meet  ocean disposal criteria. Test
results indicate no  unacceptable  toxicity  or  bioaccumulation.  These
sediments are acceptable for "unrestricted" ocean disposal. There are no
potential short-term (acute) impacts or long term (chronic) impacts.  No
special  precautionary measures are required during disposal of category
I sediments;
  2. Category II: Sediments that  meet  ocean  disposal  criteria.  Test
results  indicate no significant toxicity but a potential for bioaccumu-
lation. To protect from this potential for bioaccumulation, EPA and  the
Corps  will  require  appropriate  management practices such as capping.
This is referred to as "restricted" ocean disposal; and
  3. Category III: Sediments that do not meet ocean  disposal  criteria.
These  sediments  are  those  that fail acute toxicity testing or pose a
threat of significant bioaccumulation that cannot be  addressed  through
available  disposal  management  practices.  These  sediments  cannot be
disposed in the ocean.
  Jamaica  Bay  was  also  dredged  to  supply  soil  for  a  number  of
construction  projects.  This  process  created  borrow pits in the bay.
These borrow pits have been identified as an attractive alternative  for
the disposing of type II and type III dredge material as the cost factor
is  one  tenth  of upland disposal and this concept has been suggested a
number of times by the Army Corps of  Engineers  over  the  last  twenty
years.  The numerous environmental organizations and stake holder groups
have rejected this proposal which they feel is extremely  hazardous  and
one  that  will ultimately create a risk to the entire food chain of the
Jamaica Bay Ecosystem as this contaminated material mixes  with  and  is
absorbed  by  the  various  organisms  within the bay. The fact that the
federal government prohibits this material to be disposed of in the open
ocean speaks volumes as to its  content  and  hazard  and  its  disposal
should  be prohibited in Jamaica Bay as well. Jamaica Bay has been iden-
tified as one of the most critical estuaries on the northeast coast  and
as  part of our national park system it deserves to be protected for the
enjoyment of future generations.
  This act would prohibit the New York state department of environmental
conservation from authorizing the US Army  Corps  of  Engineers  or  any
other agency or organization from using hazardous material such as cate-
gory II or III material in the filling of the Jamaica Bay borrow pits.
  S  2.  Subdivision 1 of section 15-0505 of the environmental conserva-
tion law, as amended by chapter 233 of the laws of 1979, is amended  and
a new subdivision 3-a is added to read as follows:
  1.  No  person, local public corporation or interstate authority shall
excavate or place fill below the mean high water level  in  any  of  the
navigable  waters  of the state, or in marshes, estuaries, tidal marshes
and wetlands that are adjacent to and contiguous at any point to any  of
the  navigable  waters  of the state and that are inundated at mean high
water level or tide, without a permit issued pursuant to  subdivision  3

S. 7086                             3

of  this  section. For the purposes of this section, fill shall include,
but shall not be limited to, earth, clay,  silt,  sand,  gravel,  stone,
rock,  shale,  concrete  (whole  or  fragmentary), ashes, cinders, slag,
metal,  DREDGED  MATERIAL  or  any other similar material whether or not
enclosed or contained by (1) crib work of wood, timber,  logs,  concrete
or  metal,  (2) bulkheads and cofferdams of timber sheeting, bracing and
piling or steel sheet piling or steel H piling, separated or in combina-
tion.  Nothing contained in this section is intended to be, nor shall be
construed to limit, impair or affect  the  memorandum  of  understanding
which  any  state department enters into with the Department of Environ-
mental Conservation or the general powers and duties of  the  Department
of Transportation relating to canals or the general powers and duties of
the Department of Environmental Conservation relating to flood control.
  3-A.  THE DEPARTMENT SHALL NOT GRANT A PERMIT TO OR ENTER INTO A MEMO-
RANDUM OF UNDERSTANDING  WITH  ANY  PERSON,  LOCAL  PUBLIC  CORPORATION,
INTERSTATE  AUTHORITY  OR ANY OTHER ENTITY ALLOWING THE USE OR PLACEMENT
OF HAZARDOUS MATERIAL, INCLUDING MATERIAL CLASSIFIED AS CATEGORY  II  OR
III MATERIAL BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION
2, IN THE FILLING OF THE JAMAICA BAY BORROW PITS.
  S 3. This act shall take effect immediately.