An analysis of documents submitted by the environmental consultant HDR retained by ESDC to monitor compliance with Atlantic Yards' noise and air quality protocols has found that the agency has been advised of significant areas of non-compliance on an ongoing basis since construction began in 2010. The analysis is contained in a report prepared for AYW by Sandstone Environmental Associates of Metuchen, NJ. Sandstone also found that some air and noise mitigations originally planned were likely inadequate, several planned mitigations were implemented late or not at all, and others that had been implemented unevenly were not being enforced either by FCRC, ESDC or City agencies.
Among specific examples are the following:
- Dust suppression protocols are often violated. Too few air quality monitors are being used given the scale of the site, and those that have been deployed are not used during extended hours construction.
- The 3/4" plywood being used for construction fencing does not have sufficient noise attenuation properties to shield nearby residences.
- The model of double-pane windows offered as a noise mitigation for nearby buildings may not have an attentuation rating sufficient to insulate residences from construction noise.
- Construction equipment that did not meet the project's stated air quality standards has been allowed to remain in service on the site for months while compliant equipment was waiting to be received.
- The ConEd power grid required for use of electrical, rather than diesel, equipment and generators was installed more than ten months late after construction activity had peaked, and then was largely not utilized by contractors.
- Use of unauthorized truck routes by contractors is pervasive, with little or no enforcement by ESDC and the City.
- Extended hours and nighttime construction work is routinely scheduled much more frequently than disclosed and committed in Atlantic Yards' Final Environmental Impact Statement (FEIS).
Sandstone suggests multiple failings by contractors, FCRC, ESDC and City agencies:
- Construction workers have not have received sufficient training on the environmental mitigations to influence behavior.
- FCRC's construction liaison is rarely on site.
- The position of ESDC community liaison for Atlantic Yards has been vacant for more than a year.
- FCRC's on-site environmental monitor (OEM) has a significant scope of responsibilities for a very large construction site, and may be overallocated.
- ESDC's environmental monitoring consultant HDR visits the site only once per week, and only during daytime hours. Its quarterly reports are delivered many months after quarter end.
- City agencies have not allocated sufficient resources for adequate enforcement.
- The independent compliance monitor described in the Community Benefits Agreement, whose scope includes oversight of environmental commitments, has never been hired.
- There appears to be no penalty to either FCRC or ESDC for violating Atlantic Yards' environmental protocols.
The report states, "The construction mitigation measures can be considered a failure for numerous citizens who have experienced extremely loud noise, consecutive sleepless nights due to 24/7 construction activities, clouds of fugitive dust, vibration damage, and other impacts. The problem is not just that FCRC contractors are failing to follow various mitigation measures, but that they are getting away with it."
A recent action by the New York State Court of Appeals denied ESDC's and FCRC's motions to appeal a July 2011 State Supreme Court ruling that ESDC's approval of Atlantic Yards' 2009 Modified General Project Plan violated State environmental law. In court papers, ESDC and FCRC had claimed that the proposed 25-year construction duration would be no more of a burden for local communities than the 10-year schedule which was studied prior to the project's initial approval in the 2006 FEIS. That argument was rejected by trial and appellate courts as having no rationale in formal environmental analysis. The Sandstone report now also calls into question not only the sufficiency of the environmental mitigations originally specified by ESDC, but more significantly the agency's ability to ensure those mitigations are implemented.