Forest City "generally" in compliance with environmental protocols re Atlantic Yards construction. Locals have their doubts.

Community critics seek increased oversight regarding Atlantic Yards, such as an independent board to ensure fewer violations of construction rules, but the state says everything's pretty much OK.

Chapter 3A: Construction Overview of the Draft Supplemental Environmental Impact Statement (Draft SEIS) issued by Empire State Development, suggests everything's mostly fine, though some improved protocols are coming.

It's tough to take that on faith. For example, it contrasts with the July 2012 report, commissioned by the community initiative Atlantic Yards Watch, that catalogued violations of the Memorandum of Environmental Commitments (MEC) in much detail. And it's been impossible to get records in a timely manner.

It's true changes have been instituted since then, as noted in the Draft SEIS, and there are fewer complaints. But there's also been a lot less construction. The announced changes suggest there was room for improvement.

And though the Construction Overview chapter suggests there are few documented violations, it's tough to trust that. After all, as I reported in July 2012, documents suggest that ESD condoned a cover-up of a Forest City contractor's falsification, as a draft report acknowledging the latter decision was edited to excise such a mention.

The summary

Chapter 3A: Construction Overview contains a lengthy account regarding ENVIRONMENTAL COMPLIANCE AND OVERSIGHT and the role of ESD's technical consultant, Henningson, Durham & Richardson Architecture and Engineering (HDR):

HDR found that the project sponsors were generally in compliance with the requirements set forth in the MEC. In the areas that the project sponsors were not in compliance, HDR noted that prompt action was generally taken to address the non-compliance issues. HDR observed that there were improvements to processes and protocols after construction began, which resulted in improved compliance. The measures outlined in the MEC will continue during Phase II construction. Further, the project sponsors have agreed to incorporate a number of improvements recommended by ESD and HDR to improve the project sponsors’ MEC compliance program. The SEIS analyses presented in the subsequent construction-related chapters examine whether there are additional practicable measures that should be implemented beyond those already required in the MEC for Phase II construction activities under the Extended Build-Out Scenario. ESD will continue to require the project sponsors to implement the required environmental impact avoidance and mitigation measures. During construction of the Project, ESD will also continue to retain the services of appropriate professionals to monitor compliance.

So everything's fine, but there will be some improvements.

What was in MEC?

Some specific MEC components include:

• MPT [maintenance and protection of traffic] Plans to minimize traffic disruption during construction; 
• An emissions reduction program, including the requirement to use ultra-low sulfur diesel (ULSD) fuel and diesel particle filters (DPFs) on construction equipment to reduce the air pollutant levels from construction equipment; 
• A Community Air Monitoring Plan (CAMP) implemented during excavation and other soil disturbing activities; 
• Remedial Action Work Plans to address contaminated or potentially contaminated soils and materials on the Project site; A noise mitigation program relating to on-site equipment and offering double-glazed or storm windows and air conditioning units to all significantly impacted sensitive uses as identified in the 2006 FEIS (e.g., residential, community facility, houses of worship) to partially mitigate the project’s noise impacts during construction; 
• Vibration monitoring and Phase 1B archaeological studies to protect historic resources during construction; and 
• Site-specific rodent control plans. 

Specific elements

Regarding Transportation, the report states, for example, that ten additional speed limit signs around the construction site led to an improvement in compliance with speed limits, while an additional flagger at the entrance of the queuing area prevented trucks from queuing and idling on Vanderbilt Avenue prior to opening of the queue area gates. 

New protocols led to a decrease in idling and a new security guard ensured fewer uncovered loads or inadequate wheel washing. "According to the project sponsors’ records, the Project achieved an average truck protocols compliance rate of approximately 98.8 percent during peak Arena construction," the report states.

While construction workers sometimes illegally parked in non-parking areas, that was reduced thanks to increased NYPD ticketing, "but NYPD would need to remain vigilant in ticketing illegally parked vehicles to keep this issue from resurfacing."

Regarding Air Quality, "[a]ccording to the project sponsors’ records, on average, 98.5 percent of the construction equipment used during peak Arena construction met the DPF [diesel particulate filters] requirement specified in the MEC."

While a Construction Air Quality Measures (CAQM) Compliance Plan was finalized and implemented in April 2010, "HDR observed that a number of the provisions in the CAQM Compliance Plan were not adequately followed, including the submission of the project sponsors’ quarterly environmental monitoring reports in a timely manner, completion of the environmental monitor daily inspection form on a regular basis, and proper training related to the MEC air quality requirements to all contractors working on-site." Follow-up meetings led to some improvements, and more are planned.

Regarding Hazardous Materials, "the project sponsors were generally compliant with the hazardous materials MEC requirements."

Regarding Noise, contractors generally followed Construction Noise Mitigation Plans (CNMPs) but "there were a few instances where violations of the CNMPs were identified, including the use of non-compliant equipment." 

While project sponsors generally "complied with the noise barrier requirement where 8-foot to 16-foot fencing, portable noise curtains, or other means of shielding such as noise blankets were used to reduce noise levels," there was one incident in which a generator and an air compressor were placed at street level near a property line without noise shielding. Since then noise blankets are required.

Regarding Vibration, a monitoring program measures vibration levels at the Swedish Baptist Church and the town houses along Dean Street immediately adjacent to the Project’s Building 15, as well as buildings in the Prospect Heights Historic District within 90 feet of project-related construction activity:

There has been no recorded incident of a vibration threshold exceedance caused by construction activity to date. However, there have been limited instances of vibration threshold exceedances which the project sponsors’ structural engineer has confirmed to have been caused by a local disturbance (e.g., a basement boiler turning on in the building containing the monitor). Based on observation and readings made over the course of Project construction, HDR found that the project sponsors have been in compliance the MEC requirements for construction-related vibration.

Improvements coming

The project sponsors have agreed to incorporate a number of improvements recommended by ESD and HDR, including:

Six-Month Look-Ahead Reports. The project sponsors will provide ESD and HDR reports at regular intervals that describe the activities anticipated on the project site for the next six months.
Contractor Training. The project sponsors will improve the contractor training program by conducting presentations about the detailed requirements of the MEC to all foremen, project managers, field managers, and similar key personnel of all subcontractors upon mobilization, and every 90 days thereafter.
Contracts. The project sponsors will include in their construction contracts, and require their contractors to include in all subcontracts, an exhibit incorporating an excerpt from the MEC that sets forth all construction-related requirements contained in that document. The project sponsors’ construction contracts will expressly require each contractor to comply with all the terms of the MEC that apply to its construction activity, and to require its subcontractors to do the same. The project sponsors will add to their standard MEC-related contractual terms a provision that reiterates the project sponsors’ remedies for a contractor’s non-compliance with the MEC, including the rights to withhold payment or terminate the contract; such provision, however, will be in addition to other remedies available to the project sponsors to address any contractor’s non-compliance with an MEC requirement.
Staffing. The number of OEM [on-site environmental monitor] staff will be adjusted according to the level of construction activity, including any after-hour and/or weekend construction work, to ensure a proper level of monitoring coverage is maintained.

Traffic. Sufficient trained staff will be assigned to oversee compliance with the truck protocols. If any violation is observed, a system will be instituted to facilitate the reporting of violations to the project sponsors. 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 the steps to be taken to deal with the repeat violator.
The project sponsors will ensure that the Pacific Street queuing area between Carlton Avenue and Vanderbilt Avenue will be used to the greatest extent practicable and appropriate, if available.
Maps that identify acceptable truck routes, location of queuing area(s), and construction site access points will be provided to all contractors as part of the MEC training program.
Air Quality. As part of the training program, contractors will be instructed on how to complete and submit documentation needed to confirm compliance with the DPF requirement of the MEC. Where practicable, all equipment that is compliant with the DPF requirement (or equivalent controls) will be prominently labeled.
CAQM Compliance Plan. In 2014, the CAQM Compliance Plan was updated to reference the contractors and personnel working at the project site and to reflect current protocols and procedures. Exhibits to the CAQM Compliance Plan were updated to improve the effectiveness of the CAQM Compliance Plan.
Dust Suppression. A fugitive dust management plan will be prepared for each major phase of work identifying: the location of water supplies, wheel washing procedures, gravel placement, and other pertinent site specific information.
Air Monitoring. Routine inspections of the dust monitoring equipment will be conducted by the OEM to ensure functionality.
Soil Stockpiling. The on-site training PowerPoint presentation for relevant contractors will be updated and improved.
Noise. A written protocol has been developed to confirm that certain “noisier” equipment complies with the noise levels set forth in Table 17c-3 of the 2006 FEIS. All applicable equipment will be checked by the OEM staff either before or promptly upon mobilization to ensure compliance with the MEC noise requirements. In addition, the project sponsors will assure that perimeter fencing meets the requirements of the MEC. Where it is impracticable to meet the noise fence height requirements of the MEC because of site constraints, the project sponsors will install the best practicable sound barriers such as sound attenuation blankets, additional sound barriers, and/or cantilevered fences.
The project sponsors will continue to meet with Con Edison to arrange for the provision of grid power to each building site for use during construction.
Construction staging areas that are located within 200 feet of a sensitive receptor and are used in connection with nighttime work will be shielded (by noise mitigating fencing and/or blanketing) on the side facing those sensitive receptors unless ESD determines that shielding is not required because of the level of anticipated activities and/or duration of such activities.

Comments came first

Note that the Response to Comments document produced by Empire State Development to accompany the release of the Final Scope for a Supplementary EIS contains comments expressing frustration about the state's record, citing the creation of Atlantic Yards Watch to document community impacts and Forest City's inconsistency in providing a construction coordinator.