ALBANY COUNTY — The fifth expansion of the Rapp Road landfill into the Pine Bush has met with a not surprising challenge.

Save the Pine Bush, an advocacy group that works on behalf of the ecologically rare pitch-pine barrens that are home to the endangered Karner blue butterfly, filed suit on Monday against the city of Albany, which owns the dump, and the state’s Department of Environmental Conservation, which issued the permits for expansion in late June, after a two-year process.  The case is set to be heard on Dec. 11.

As described in the permit, the city is allowed to expand its landfill over approximately 23 acres of existing landfill as well as a northeasterly expansion of about 15 acres of land.  Of the additional acreage, seven are disturbed or developed and eight acres are undeveloped city-owned lands.  The eastern expansion will bring the total capacity of the landfill to about 6,059,000 cubic yards, up from its current 3,134,000 cubic yards.

In 2000, when Save the Pine Bush sued the city over a previous expansion, the group did not seek an immediate injunction, said Peter Henner, the lawyer representing the watchdog group.  By the time the suit was heard, he said, the city had begun work and spent a significant amount of money on the project and the group was told it had waited too long.

Yesterday, Henner asked for an immediate injunction to stop the city from commencing work in undisturbed areas of the Pine Bush, to which the city answered that its immediate plans involve work in the non-pristine area, he said.  The judge did not grant an injunction, Henner said, but clarified that the city had agreed to work only in the areas that have already been disturbed.  A call to Mayor Gerald Jennings’s office was not returned before press time yesterday.

“I think we’ve learned from the mistakes of the past,” Henner said of his optimism for the outcome of the case, citing the request for an injunction as an example.

The city knew Save the Pine Bush would bring a suit and that there’s a four-month statute of limitations, Henner said, explaining that he anticipates that Albany will seize on the length of time, nearly four months, it has taken Save the Pine Bush to file.  The DEC has spent two years reviewing the city’s application, Henner said, and Save the Pine Bush has to do the same thing with fewer resources in only three months.

An emphasis of the Article 78 filing  — used by citizens to challenge their government — is on the city’s lack of a management plan for the landfill and its future waste management.  “The permits issued by DEC represent the fourth time in less than 20 years that DEC has approved a request by the City of Albany to expand the Rapp Road Landfill into lands within the Pine Bush,” the petition says.

It goes on to outline the history, starting with an administrative law judge whose 1989 finding stated, “The interim landfill construction and operation… would cause and/or contribute in the harming, killing, destruction, and elimination of existing Karner blue butterfly… and would therefore be a ‘taking of any endangered or threatened species.’”

The DEC’s commissioner, Thomas Jorling, accepted that conclusion, but overruled it, the suit says.

“Commissioner Jorling justified his determination because the expansion provided, as a mitigation measure, ‘a mechanism’ to establish a Pine Bush Preserve,” the suit says.  It goes on to quote Jorling as saying, “In the absence of the project… there would be no alternative legal mechanisms that are likely to provide… assurances regarding the establishment and management of a Pine Bush preserve.  Without such mechanisms, it is far more likely that the Karner blue would perish.  Therefore the parcel cannot be regarded as critical habitat and in fact, if it were, we would be faced with the ultimate irony of preserving a parcel at the expense of reducing the likelihood of the long-term survival of the species.”

After deciding on the project in 1990, Jorling said, “In light of the fact that the interim landfill will only provide capacity for an estimated three years of solid waste management, it is critically important for the city and other municipalities that will use this interim landfill to move rapidly to complete a long-term management study and implement an alternative solid waste program in that time period,” court papers say.  “Based on the record of this proceeding, I cannot envision any set of circumstances that would justify the extension of the life of this interim landfill or the approval of another such facility in any part of the Albany Pine Bush.”

Since then, the landfill has expanded further and each time, the city is supposed to consider alternatives, Henner said, but the list of alternatives hasn’t changed since 1991.  “That is not an adequate study of alternatives,” he concluded.

Several area municipalities use the Rapp Road landfill, including Berne, Knox, Westerlo, and New Scotland, including the village of Voorheesville — Guilderland recently switched to Colonie — but the city of Albany realizes a profit from the commercial haulers who use the dump.

“The city has adequate capacity in its existing landfill until June 2010, the city cannot claim that it needs to utilize the Eastern Expansion of its landfill on an emergency basis,” said Corey Ellis, a member of Albany’s common council, in an affidavit.

Asked what outcome he is hoping for, Henner said, “I would hope to get two things in particular.”  First, he wants the court’s recognition that the city hasn’t done the required planning for the handling of solid waste and wants Albany to be ordered to examine management before any additional land filling is allowed.  Second, Henner said, the DEC “rushed this through to a permit.  This practice needs to end.” Rick Georgeson, of the DEC, referred questions to the attorney general’s office, but nobody from the office could be reached before press time.

“The Pine Bush is irreplaceable and the city has got to stop,” Henner concluded.