Monday, May 2, 2011

Uncovering Fraud and Deception at NYSDOT

The more that the review process for the Van Wyck ramps is examined the more evidence is brought to light that the entire review process-to quote a great legal phrase-lacks honesty integrity and good character. WPU's examination of the emails we have obtained indicates just how poorly the review was done prior to WPU's intervention; and just how nonfeasance is now poised to be converted into malfeasance if the agency does move forward with an approval and a public hearing.

In the winter of 2009 NYSDOT was poised to approve the ramps-blithely moving ahead without any apparent understanding of their difficulties and the fact that NYC EDC had done two separate contradictory studies. Here's a representative sample from one email:

"Chung-kuo Chiang (NYSDOT Civil Engineer), 9/3/2009 at 9:39AM:

"... I have reviewed the AMR (Access Modification Report) for the Willets Point Development Project. I found the AMR follows the NYSDOT Project Development Manual Appendix 8 "Interstate & Other Freeway Access Control & Modifications" formats and guidelines. I think the submitted AMR technical document used to request and to justify the Van Wyck Expressway ramp access and/or modification's acceptability and approval could be granted pending final approval from Main Office DQAB..."

Main Office Mobility Bureau, Main Office Liaison Engineer, and FHWA Division Office.

And this from the regional director-apparently eager to do EDC's bidding:

Phillip Eng (NYSDOT Regional Director), 8/19/2009 at 11:55AM:

"Ian, Where do we stand on the AMR and the schedule we have in place to meet EDC's timeline needs? Thanks."

In December Eng expresses the following: "... I'd like to approve the AMR asap"

In January NYSDOT's Peter King is ready to wrap the AMR up in a bow

"I think we're near the 'finish line' regarding Willets Point, but we still must review, comment on, and discuss with EDC, the attached material which was requested at our meeting in my office several weeks ago. I'm particularly looking for input from Traffic/Safety since those seem to be the critical issues outstanding. If you can look at Gil Mossieri's memo to EDC and generate comments, Ian and I will set up a conference call with EDC and hopefully complete the resolution of all remaining questions. Please note that Phil continues to get pushed on this so we must make it a priority to satisfactorily resolve. ..."

All is rosy except for the comments of DOT's last honest man-an engineer named Michael Bergman who expressed significant reservations to the viability of the project:

"Michael Bergmann (NYSDOT Region 11 Structures Unit), 11/10/2009 at 9:27AM: "Peter, please note from my previous comments that this proposed access increases traffic on the VWE down to the KGI interchange. I know we have previously stated internally that we really don't want that to happen. Their previous answers on this do not address the question."

Michael Bergmann (NYSDOT Region 11 Structures Unit), 12/3/2009 at 4:42PM: "... my original comment simply stated that NYSDOT had serious concerns with increasing traffic volumes on the VWE. Kew Gardens is only one part of this issue, and is probably not the most serious part. There is another major interchange between this site (Willets Pont) and KGI: the LIE/GCP/VWE interchange. Region 11 did a lot of analysis of this interchange over the last few years. If any traffic changes on the VWE affect Kew Gardens, those same effects are likely to affect the LIE interchange too. The point of my comment is that we simply cannot add traffic to an existing expressway which has known congestion problems and ignore the effects of the increased traffic. I have yet to see anything from the consultant on this."

Bergmann's skepticism, high standards and insistence that NYCEDC still had not addressed significant issues may have influenced NYSDOT's decision to divert from NYCEDC's schedule, by not approving the proposed Van Wyck ramp project prior to the end of 2009. Although Bergmann's contributions to NYSDOT's evaluation of the proposed Van Wyck ramp project were noteworthy and he appears to have done a remarkable job, Bergmann is altogether missing from all records that WPU has obtained that have been generated since January 1, 2010 relating to the proposed van Wyck ramp project.

It is as if Bergmann had been relieved of his responsibilities concerning the proposed Van Wyck ramp project, and re-assigned by the powers-that-be to other projects.But Bergman's honest critique bought WPU time so that its intervention could be effective.

Once WPU did get involved, all of the rosy sentiments were tabled as if SDOT went into shock. Brian Ketcham rocked their cozy little world and exposed the inadequacy of the review process-causing the 16 month hiatus that was supposed to be a revision process but has turned out to be a charade; if what we are now seeing from NYSDOT is true.

Once Ketcham exposed EDC's submission the traffic agency's tune began to change-particularly after the FHWA received Mike Gerrard's letter that was based on Ketcham's work. The FHWA's rep Tom Breslin reacted with alarm:

"This past Wednesday, I met with Ken Dymond (legal) and our environmental people. FHWA was not involved in the review of the Willets Point redevelopment project itself. The NEPA Checklist is for the Federal Action (the AMR) only. With your office we pursued the Federal Action only to the AMR, not the indirect impacts.

The concerns raised by Mr. Gerrard fall into a gray area. AMR guidance from our HQ is quiet about indirect impacts to a Federal Action. During this discussion we agreed that the Willets Point redevelopment falls into the category of indirect impacts. If we include these indirect impacts, we will need to revisit the NEPA Checklist. The combination of the access modification and the redevelopment will not pass the NEPA Checklist.

The redevelopment may need a full EIS (currently the redevelopment project has a Generic EIS that we have not reviewed) in order to pursue the project with the modification of the VanWyck ramps. We are having a conference call with Ian Francis of your office and EDC this morning at 10.00. We plan to discuss the indirect impact issue and what needs to be done to meet NEPA.

The redevelopment project could go ahead without the access modification to the VanWyck ramps but traffic in the area would be horrible. If we go ahead as is, the project may need to do an EIS (once we include the indirect impacts) as the Checklist would no longer be applicable to this project."

The proverbial stuff hit the fan-and that's when the Bloomberg bullying began in earnest, culminated by the following comments from Eng about NYC DOT Commissioner Sadik-Khan:

Phillip Eng (NYSDOT Region 11 Director) to Stanley Gee (NYSDOT Acting Commissioner) and many other key names at NYSDOT involved with the proposed Van Wyck ramps, 9/23/2010 at 11:49AM:

This is to let you know that I had a conversation today with JSK [presumably, Janette Sadik-Kahn of NYCDOT)... JSK noted that she will be sending me a letter holding me personally responsible for holding the Willets Pt project hostage. I'm okay with that as we need to ensure that we have thoroughly reviewed the issues and that they are resolved satisfactorily. I told her that we need to have our staff meet (sometime next week) including NYMTC and go over the concerns raised by the city and bring them to a resolution."

As we have commented then Commissioner Gee was a skeptic and told Senator Dilan of the department's concerns about the adequacy of the AMR. Since he was replaced by Joan McDonald, however, a sea change appears to have occurred at NYSDOT. The fact that McDonald used to be an executive at NYC EDC hasn't escaped our attention.

Nothing about NYSDOT's review of the Van Wyck ramps should comfort anyone interested in honesty and transparency. From its initial false confidence and euphoria for EDC's deficient submission, to subsequent temporary "intransigence" after WPU intervened, and finally to the current eagerness to approve, NYSDOT has consistently failed in its statutory obligations to the citizens of New York State.

After WPU exposed the EDC fraud NYSDOT should have immediately commenced an independent review of the entire matter. Instead it continued to act as if it was EDC's partner in this endeavor rather than its evaluator. It is now our firm belief that NYSDOT needs to be relieved of its oversight role and an independent monitor be appointed to conduct a proper review of the efficacy of the Van Wyck ramps.

We remain convinced today, as we were in February of last year, that there is simply no way for these ramps top pass regulatory muster-and that there is no way that NYSDOT can be trusted to do the proper evaluation of the massive impacts of the Willets Point project and these ramps.