Monday, December 19, 2011

A Do-Over, by Any Other Name

On November 9, the New York City Economic Development Corporation (NYCEDC) held its "Public Information Meeting" for the public to discuss and ask questions about NYCEDC's permit application to allow toxic water removed from the Willets Point sewer construction site to be discharged, after filtering, into the Flushing bay. But even before that meeting occurred, it was obvious that NYCEDC had failed to comply with the written public participation plan that it had presented to the Department of Environmental Conservation (DEC), as well as applicable DEC regulations.

For example, NYCEDC held its November 9 meeting:

  • While completely concealing from the public the permit application that was supposed to be the topic of that meeting;

  • Without making available project-related documents approximately 15 days in advance of the meeting (or perhaps at any time whatsoever in advance of the meeting);

  • After deliberately omitting from the written meeting stakeholders outreach list all Willets Point businesses, including those located on 126th Street immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work – while including on the written notification list 35 church organizations that are located one mile away.

On November 21, 2011, environmental attorney Michael Gerrard of Arnold & Porter LLP, representing Willets Point United Inc. (WPU), notified DEC of multiple failures of NYCEDC, including those summarized above, to comply with the written public participation plan presented to DEC, as well as provisions of DEC Commissioner Policy 29.

DEC must have appreciated that its consideration of NYCEDC's permit application would lack necessary integrity, if it relied upon the inadequate public participation implemented thus far by NYCEDC. And so it comes as no surprise that, after receiving attorney Gerrard's letter, NYCEDC has since acceded to WPU's demands, by:

  • Making available to the public the permit application document that had previously been completely concealed;
  • Scheduling a new public participation meeting;
  • Making available to the public project-related documents in advance of the new public participation meeting;
  • Including in the written meeting stakeholders outreach list Willets Point businesses immediately adjacent to the proposed sewer work excavation site, that would be most directly impacted by the proposed work.

Make no mistake about it: NYCEDC is taking those extraordinary steps, not because NYCEDC enjoys public participation in its projects, but because it must correct its failures to comply with its written public participation plan, as well as applicable DEC regulations.

In particular, the new public information meeting to be held tonight is obviously intended to correct the failures of the original meeting. Significantly, the original public information meeting held on November 9 was supposed to have been the only such meeting. (See page 4 of the original Public Participation Plan, "One public information meeting will be held at a publicly accessible location in Flushing to provide information about the construction of the proposed sanitary and storm water sewer lines and the associated NYSDEC permitting process.")

The new meeting is, for all intents and purposes, a do-over – necessary to correct failures of the original.

Now, we understand that no one likes to admit they have failed – especially when doing so could threaten their holiday bonuses.

So while NYCEDC incredulously spins tonight's new public information meeting as a mere "follow-up", the fact of the matter is that this meeting is a do-over, implemented because WPU has held NYCEDC to account, and necessary to correct NYCEDC's prior failures.

Significantly, tonight's sewer meeting do-over is just one example of WPU holding NYCEDC to account, and turning back the clock on aspects of the proposed Willets Point development. That has happened before: After WPU brought to the attention of state and federal regulators fatal flaws in NYCEDC's application for the proposed Van Wyck ramps, the entire process for evaluating those proposed ramps was revised, and still remains incomplete more than two years later. More recently, after WPU brought to the attention of State Supreme Court Justice Joan Madden that NYCEDC intends to proceed with "Phase One" of the proposed Willets Point development without having approval of the proposed Van Wyck ramps, and to condemn Willets Point property on that basis – in direct contradiction of the City's prior representations to Judge Madden's court – Judge Madden has decided to re-open WPU's Article 78 case "in the interests of justice".

We're weren't surprised that NYCEDC and the City attempted to distract from all of that, by staging a sewer project groundbreaking on December 1, 2011 despite not having obtained the required DEC permit, and despite knowing that NYCEDC had failed to implement a proper public participation process (and that it would have to be re-done). Tellingly, NYCEDC's consultant mailed notices regarding the public information meeting do-over on December 2, 2011 – one day after the Mayor's groundbreaking press conference. That prevented members of the press from questioning the Mayor about NYCEDC's revised public participation plan during the groundbreaking press conference.

WPU will continue to hold NYCEDC and the City to account. We're unfazed by the Mayor's phony press conferences, and by NYCEDC's laughably inaccurate spin. For each failure of NYCEDC, expect a do-over. One step forward, but two steps back. And to NYCEDC chief Seth Pinsky we say: Axe those holiday bonuses.

[The December 19, 2011 sewer permit public participation meeting will be held from 6:15PM - 8:15PM at the Al Oerter Recreation Center, 131-40 Fowler Avenue. NYCEDC has not posted notice of this meeting on its web site, apparently preferring low attendance.]