Public advocate on Waterpointe: 'We need to prepare for litigation' 1

Public Advocate Letitia James said on Wednesday that she would help secure legal representation for a lawsuit over the controversial brownfield cleanup at the Waterpointe property in Whitestone.

Whitestone residents upset with the controversial Waterpointe brownfield cleanup may have an influential new ally.

Public Advocate Letitia James said she would help in the potential launch of litigation over the situation at the We Love Whitestone Civic Association's meeting on Wednesday night.

"I'm prepared to seek and try to find a law firm that will represent you in your interests," she said. "This is totally unacceptable."

The Edgestone Group, which conducted the cleanup, plans on building 52 single-family homes at the property. The firm could not be reached for comment.

Many in the community are upset with the Department of Environmental Conversation over the project, because the agency agreed to let Edgestone pursue a different cleanup method than first planned. Rather than the Track 2 residential cleanup that was originally planned, the developer conducted a Track 4 unrestricted residential one, which is less stringent in terms of the chemicals allowed at the site.

The DEC issued a certificate of completion for the cleanup last month.

"We need to contact an attorney after the meeting, with [state Sen. Tony Avella (D-Bayside)], we need to do an independent study, we need to prepare for litigation," she said.

The public advocate clarified that while her office does not have standing in the eyes of courts, she has a way to get "around it." James said she contacts "white-shoe law firms" and "I get them to represent individuals and civic groups to sue the city and then I join."

She also explained "one of the reasons why" she was asked to speak at the We Love Whitestone meeting is because she was a plaintiff in litigation against development at Atlantic Yards in Brooklyn.

James' statements, which were well-received, came after Whitestone resident Robert LoScalzo and Community Board 7 Environmental Committee Chairman James Cervino gave presentations about the Waterpointe project.

The public advocate praised the presentations by LoScalzo and Cervino and expressed suspicion about the cleanup.

Cervino discussed the Track 2 and Track 4 remediation tracks, saying the latter is only appropriate for "commercial" sites, not residential ones. The CB 7 environmental committee chairman also showed the original brownfield cleanup agreement that the city had with the DEC, which included a Track 2 residential cleanup.

LoScalzo discussed how DEC regulations prohibit single-family housing where Track 4 restricted residential remediations have taken place, something the agency acknowledges.

Avella, who also addressed the project and has been highly critical of the DEC about it, noted that the agency's argument for why the single-family houses are allowed is that the homes in its planned development would be controlled by a homeowners association. He clarified that he wasn't defending the decision or the DEC, though.

The senator and Assemblyman Daniel Rosenthal (D-Flushing) — who also spoke and expressed concern about the cleanup — said that they are meeting with the DEC next week about it.

"Clearly, there's a number of legal issues," James said. "There are conflicts involved … I think with the presentations that we received this evening, there is what they call in court, a smoking gun. And I think that they have found it in a lot of these regulations."

The DEC defended the procedure in a statement to the Chronicle.

"The developer remediated this site under New York State Department of Environmental Conservation (DEC)'s strict oversight to ensure the cleanup is protective of public health and the environment," the agency said in an email. "The developer must now ensure remedial controls remain in place in accordance with the approved remedy. 

Every home at the Waterpointe site is planned to have a subslab depressurization system designed to keep harmful vapors in the ground from getting inside of the houses.

But residents are unsatisfied.

"Hopefully, we do start a lawsuit," We Love Whitestone President Al Centola said. "Hopefully, we get it off the ground."

He added that children who live at the development may have health issues because of the pollutants in the ground, were the project to go forward as planned.

"It needs to be stopped and it needs to be stopped now," he said.

Centola told the Chronicle on Thursday that James' office had called him to follow up earlier in the day. He also said that while it's not yet clear which parties the lawsuit would target, the DEC would "definitely" be one of them.

Although James received applause for her remarks, one man at the meeting criticized her. He said that since she had said last year she would look into the flooding of homes on 10th Avenue in Whitestone, he hadn't heard "one word" from her about it.

James said that she had reached out to area electeds and the de Blasio administration about it. The public advocate offered to meet with the resident about the flooding issue after the meeting. 

A spokesperson for James said the public advocate can only be a plaintiff in lawsuits against city or state agencies and that were the litigation against a developer, she couldn't be party to it. However, the spokesperson added, the public advocate could in that case file an amicus curiae brief.

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