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Additional environmental oversight measures show influence of community and consultant input

In the spring of 2012, the Prospect Heights Neighborhood Development Council, a sponsor of Atlantic Yards Watch, commissioned a review of Atlantic Yards’ compliance with its stated environmental commitments, which was conducted by  Sandstone Environmental Associates of Metuchen, NJ. In addition to reviewing hundreds of incident reports submitted to AYW by community members during arena construction, Sandstone analyzed internal reports produced by Empire State Development Corporation’s (ESDC) environmental monitor, Henningson, Durham & Richardson Architecture and Engineering, P.C. (HDR). Sandstone’s final report documented significant issues of noncompliance with Atlantic Yards’ environmental commitments on the part of Forest City Ratner Companies and its contractors during arena construction, and made recommendations for improvements to be introduced in future phases of construction.

The Sandstone report received little acknowledgement by ESDC when it was published in July 2012. However, the report’s findings and recommendations were incorporated into the BrooklynSpeaks coalition’s response to the Draft Scope of Work for the Atlantic Yards Supplemental Environmental Impact Statement (SEIS) in March 2013, and were also referenced in the group’s comments on the Draft SEIS (DSEIS) submitted in May 2014.

A review of the Final SEIS (FSEIS), released in June 2014, shows that ESDC and FCRC have adopted modifications of the Atlantic Yards construction mitigation and monitoring programs for future construction at the site. Although some of the changes appeared in the DSEIS, significant additions were made between the DSEIS and the FSEIS. Here is an outline of changes to the project’s monitoring protocols that parallel recommendations made by Sandstone and comments from community organizations.

Staffing of compliance monitoring function, training of contractors

A key concern identified by Sandstone related to insufficient staff being available to police compliance by project contractors with environmental commitments; its report states, “The size of the team available to [FCRC Onsite Environmental Monitor] Adam Schwartz is apparently not sufficient to cover the entire construction area on a daily basis or during extended hours work,” and recommended, “Increase the number of people who assist the OEM so that the size of the team is commensurate with the scope and schedule of the work” (Sandstone 41) While the DSEIS disclosed FCRC’s intention to provide ESDC and HDR with a six-month look-ahead report on project activities, the FSEIS went considerably further, and tied this report to a rolling forecast for necessary staffing for environmental monitoring: “Among other things, each look-ahead report will include an assessment of the level of OEM staffing that should be deployed during the relevant period to properly monitor compliance with the MEC. That assessment will provide a basis for discussion regarding the level of staffing for the relevant period among ESD, HDR, and the project sponsors.” (FSEIS 3A-11)

However, Sandstone’s findings cautioned that enforcement is not a substitute for training contractors on how to comply with environmental protocols. It recommended, “FCRC and Turner Construction need to look into the reasons why employees have violated the conditions of the MEC despite the training sessions that have been held.” (Sandstone 39) The FSEIS promises to bolster the training program, stating, “The project sponsors will target its PowerPoint presentation so that it provides specific instructions to contractors on the requirements of the MEC. The project sponsors may tailor the presentation so that it focuses on MEC requirements that relate specifically to a particular project component. ESD and HDR will be provided with the opportunity to comment on the PowerPoints prior to their use in contractor training. PowerPoint presentations will be presented by the OEM to all foremen, project managers, field managers, and similar key personnel of all subcontractors upon mobilization, and every 90 days thereafter, with sign-in sheets to track attendance.” (FSEIS 3A-11)

Construction traffic

During arena construction, many incidents reports were filed on AYW relating to unauthorized routes being used by trucks operated by FCRC contractors and excessive queuing and idling by construction vehicles on neighborhood streets. The Sandstone report contains several recommendations for remedying these issues which align with program changes that appear in the FSEIS.

Sandstone recommendation

FSEIS disclosure

Revise scheduling to ensure that no trucks need to queue and idle for more than three minutes. (10)

The project sponsors will ensure that contractor logistics plans maximize the utilization of the Pacific Street queuing area between Carlton Avenue and Vanderbilt Avenue or other designated location for truck marshalling and queuing to the extent practicable and appropriate, so long as such areas are available. The project sponsors will provide HDR and ESD with copies of the logistics plans for review and comment. (3A-12)

A more reliable means of informing individual truck drivers and dispatchers of the rules and regulations should be developed. Training sessions carried out by FCRC have apparently not been effective for a sustained period of time. (10)

Sufficient staff will be available to patrol the project site regularly to check for non-compliance with the truck protocol requirements concerning idling and/or queuing. The staff devoted to monitoring compliance with the truck protocol will be adjusted based upon the level of construction activity at the site. Staffing for overseeing compliance with truck protocol requirements will be assessed in the six month look-ahead reports, and discussed at weekly meetings with HDR. (3A-12)

The City agencies responsible for enforcement should monitor the site perimeter and issue summonses as required. (10)

A system will be instituted to facilitate the reporting of truck protocol violations to the project sponsors. Material violations of the truck protocol will be reported by staff to the project sponsors’ management representatives, and the project sponsors will keep a record of such reported incidents.

The project sponsors will advise HDR at the weekly meetings of any circumstance where a contractor or driver has been found to be a repeat violator of the truck protocols. The project sponsors and ESD will agree, on a case-by-case basis, on the steps to be taken to deal with the repeat violator. Those measures may include, without limitation, providing warnings, invoking contract sanctions and/or banning from the site such companies and/or drivers in the event that violations continue after reasonable warning has been given. (3A-12)

 

Noise

Sandstone’s analysis of noise complaints focused on after-hours construction, noise rating of equipment used at the site, and mitigation measures offered to residents near the project.

Sandstone recommendation

FSEIS disclosure

ESDC’s on-site environmental monitor (HDR) and FCRC’s OEM should visit the site during extended and late-night hours one or more times per week using an unpredictable schedule. (18)

The OEM will provide an update on upcoming after-hour and/or weekend construction work at each weekly meeting with HDR, during which it will be agreed upon by ESD and the project sponsors whether such work requires the presence of an ME. The OEM is ultimately responsible for ensuring that a proper level of monitoring coverage is maintained, even where after-hours or weekend work is performed on short notice from the contractor. (3A-12)

The contractor should specify the make and model of any “quieter” equipment checked off on the CNMP.

The OEM should review the CNMP and verify that the equipment and barriers meet the regulations and noise mitigation commitments and that all of the §102 construction equipment is listed. (20)

The OEM staff will check applicable equipment for compliance with the MEC noise requirements when the equipment is first mobilized. They will do so pursuant to the protocol described above. The OEM staff also will regularly check equipment in use on-site against the Construction Noise Mitigation Plan or the Alternative Construction Noise Mitigation Plan (as applicable) posted for the site to confirm that there are no discrepancies, or revise such plans as necessary. (3A-14)

Future construction work should plan for the long lead time needed for Con Ed to provide an electrical grid [to avoid the use of diesel generators]. (20)

In an effort to avoid delays occasioned by Con Edison scheduling constraints, the project sponsors will continue to submit electrification requests as early in the construction sequence as practicable, and follow up with Con Edison on a regular basis until electrification has been timely accomplished, subject to scheduling restraints of other entities not under the project sponsors’ control. (3A-14)

Reduce the annoyance of back-up alarms by using manually adjustable alarms, self-adjusting alarms, blinking lights, or an observer. (20)

Where practicable and feasible, sound-mitigated backup alarms will be used such as backup alarms that lower backup alarm noise in response to more quiet ambient conditions (such as night-time work) or backup alarms that use white noise or other mitigating technologies for trucks and equipment expected to operate at or make deliveries to the Project site during any phase of extended night-time work or night-time module deliveries. (3A-15)

Do not rely on noise barriers composed of ¾” plywood as the sole means of mitigating noise from trucks and equipment at affected residences. (22)

Where practicable, quiet construction procedures and equipment will be used, including where practicable the use of a bed liner made of thick rubber, sprayon liner, plywood, sand or gravel on dump trucks to mitigate the noise of the first load being dropped into the dump truck. (3A-15)

The OEM should ensure noise attenuation meets or exceeds what is designated in the NYC Noise Code. (22)

The project sponsors will assure that perimeter fencing meets both the requirements of the MEC and the New York City Noise Code, which requires that perimeter fencing meet the STC rating of 30 or greater.

Where it is impracticable due to field conditions to meet the noise fence height requirements of the MEC and/or the New York City Noise Code in areas that are proximate to residences or other sensitive receptors, the project sponsors will install the best practicable sound barriers which may include some or all of the following, depending on the circumstances: sound attenuation blankets, additional sound barriers placed between the noise source and sensitive receptors, and/or angled cantilevered fences, and/or other practicable pathway controls. (3A-14)

Reevaluate and expand the geographic area where significant impacts may occur. (24)

The results of the detailed construction noise analysis indicates that of the approximately 489  buildings in the study area, elevated noise levels are predicted to occur at one or more floors of approximately 124 buildings under Construction Phasing Plan 1, at one or more floors of approximately 160 buildings under Construction Phasing Plan 2, and at one or more floors of approximately 134 buildings under Construction Phasing Plan 3. This is as compared to the approximately 176 buildings predicted to experience significant adverse noise impacts at one or more floors resulting from construction of Phase II of the Project in the 2006 FEIS. (5-33)

Expand the geographic area of residents that are entitled to mitigation measures. (24)

Overall, there are approximately 13 buildings represented by six noise receptors predicted to experience significant adverse noise impacts as a result of construction of Phase II of the Project under one or more of the three Construction Phasing Plans analyzed that may not have and have not previously been offered receptor control measures. ... Some potential receptor controls that could be used to mitigate the impacts at the 13 buildings predicted to experience significant adverse construction noise impacts warranting mitigation include the provision of air-conditioning so that the impacted structures can maintain a closed-window condition and the provision of storm windows to a building without double-glazed windows to increase the amount of noise attenuation provided by the building façades. (5-34)

 

Air quality

Fugitive dust was a particular problem during arena construction. Sandstone’s recommendations addressed prevention as well as monitoring for compliance with established protocols.

Sandstone recommendation

FSEIS disclosure

Deploy air monitors at more locations to capture fugitive dust events. (30)

The project sponsors have procured five new particulate monitors, four of which have been deployed on a daily basis at the site to monitor particulate levels associated with construction activity, as required by the MEC. OEM personnel will follow the manufacturer’s recommendations for operation and maintenance of this monitoring equipment, and routine inspections of the dust monitoring equipment will be conducted by the OEM to ensure functionality. OEM personnel will follow the best management practices previously developed by HDR in operating this equipment, or equally effective procedures. (3A-14)

Review the means of dust suppression on haul roads and at loading/unloading areas to ensure sufficient availability of water and sufficient means of distributing the water. (30)

Prior to the commencement of construction activities for each major work phase, the project sponsors or its contractor(s) will prepare a fugitive dust management plan that identifies: the location of the fixtures to be used in controlling dust at the site (including without limitation hydrants or other points of water supply), any wheel washing stations, gravel placement locations, hoses, dust suppression agents and any other equipment and material to be used in complying with the dust suppression requirements of the MEC. The project sponsors will require its contractors to adhere to such plans, and HDR will refer to such plans in assessing the project sponsors’ compliance with the dust suppression requirements of the MEC. ESD and HDR will be provided with the opportunity to comment on the plans prior to their implementation in the field. (3A-13)

Identify who, among the multiple workers and equipment operators at a site, are responsible for watering surfaces.

Identify who is responsible for providing the water for wetting.

Identify who is responsible for placing gravel on unpaved roads and how often. (31)

The project sponsors and its contractors will assign sufficient staff to allow for careful monitoring of contractor compliance with MEC dust control measures, and staffing will be keyed to the level of dust-generating construction activities at the site. Staffing levels will be assessed in the six month look-ahead reports and discussed at the weekly meetings with HDR. (3A-13)

Have FCRC’s on-site environmental monitor verify that wheel washing stations are present and in working order at all exits. (31)

A wheel washing station will be constructed at each truck exit, whereby truck wheels will be washed, and the water will be contained and recycled to avoid tracking mud out of the site. If construction of a wheel washing station is not practicable at a construction site exit due to site conditions, the circumstances giving rise to any claim of impracticability will be set forth in the relevant Dust Management Plan, and in such circumstances, the Dust Management Plan prepared by the project sponsors or its contractor will include a substitute program for wheel cleaning that will achieve equivalent results, taking into account weather conditions, space availability, site pitch, catch basin location and other relevant factors. (3A-13, 3A-14)

To avoid problems in policing equipment with DPFs [diesel particulate filters], FCRC should require contractors to use equipment that complies with EPA Tier IV emissions. (38)

Therefore, to ensure that Phase II construction would result in the lowest practicable DPM emissions, the following measures would be added to the MEC for Phase II construction: the use of Tier 3 or newer equipment with DPFs during construction on all nonroad construction engines with an engine output rating of 50 hp or greater and the use of Tier 4 equipment beginning in 2022. (3I-17)

Increase the number of people responsible for policing equipment on-site. (38)

As one element of the MEC training program, contractors will be instructed on how to complete and submit documentation needed to confirm compliance with the DPF requirement of the MEC. Such instruction will be provided at a level of detail commensurate with the training needs of the contractors on the site. (3A-13)

 

Third party OEM

Community organizations also raised questions about the effectiveness of having a FCRC employee in role of onsite environmental monitor (OEM). BrooklynSpeaks’ response to the DSEIS stated, “ESDC’s Environmental Monitor HDR is reliant on the developer and contractors for information. HDR makes regular, apparently scheduled visits to review paperwork prepared by FCRC’s OEM, but does little monitoring on its own. Verification of the community’s claims is largely in the hands of the developer and contractors doing the work.”

By the time the FSEIS was released the following month, it was able to disclose that FCRC had agreed to retain a third party consultant to serve as OEM: “The project sponsors have agreed to pursue the services of a qualified outside engineering firm or construction management firm to serve as the OEM for the Project pursuant to a scope to be reviewed by ESD and that thereafter, the OEM function would not be moved in-house without prior approval by ESD.” (FSEIS 3A-15) This change offers the opportunity for an additional level of focus and independence in reporting on compliance with environmental commitments.

What’s next?

The FSEIS reconfirmed that construction of the Atlantic Yards project will result in adverse impacts to the surrounding community in terms of noise, traffic and air quality. The additional commitments described in the FSEIS do not on their own guarantee that future phases of construction will be less of a burden for local residents. However, they do indicate ESDC's acknowledgement of shortcomings in environmental compliance during arena construction—and demonstrate that the community’s diligence in identifying and reporting on non-compliance with project commitments can influence policy.

At the time of its approval of the FSEIS, ESDC announced the creation of the Atlantic Yards Community Development Corporation (AYCDC), an agency subsidiary dedicated to oversight of Atlantic Yards’ public commitments, including its commitments regarding mitigation of the impacts of construction on the local community. AYCDC will be governed by a board of fourteen members, five of whom will be appointed by local elected officials.

The combination of enhanced environmental protocols for contractor training, third party monitoring, and increased staffing, together with oversight including local representation, represents a significant improvement to the program that was in place to mitigate construction impacts during arena construction. Continued vigilance will be necessary, but experience indicates that engagement from the community surrounding the project may help to further improve the effectiveness of the new platform in addressing local concerns.

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OEM delay

No announcement regarding the delay of the OEM being "hired" even though FCRC, ESD knew before the Quality of Life meeting and still not mentioned in this posting either; another example of critical piece of information the impacted residents not informed about without the impacted residents having to ask or monitor status, where’s the transparency?

 
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OEM hired

On October 24, FCRC announced it had hired Remedial Engineering as the third party OEM for the Atlantic Yards project.