DEP Commissioner Lloyd At Last Night's Gowanus Canal Superfund CAG Meeting: "We Intend To Comply" With EPA. But New DEP Letter To EPA Indicates More Stalling

Gowanus Canal Superfund Community Advisory Group's facilitator Doug Sarno

NYC DEP Commissioner Emily Lloyd

Congresswoman Nydia Velázquez

Councilman Brad Lander and  Steven Levin

When it comes to cleaning the Gowanus Canal, the City of New York has a dismal record.  Over decades, the City has never shown the will to clean the toxins at the bottom of the canal which cause  real environmental hazards, nor has it ever addressed the Combined Sewer Overflow issue in any meaningful way.
When the US Environmental Protection Agency stepped in and proposed the Gowanus Canal as a Superfund site, a designation reserved for the most severely polluted sites in the country, the City of New York lobbied hard to keep the Federal Government at bay.
No wonder. The EPA identified the City as the second largest Potentially Responsible Party (PRP) for discharging "hazardous substance-contaminated untreated sewage" into the canal.

As we all know, the EPA did declare the Gowanus a Superfund site, and in September 2013, the agency signed its Record of Decision (ROD) for the cleanup of the canal. The ROD, which represents the blue print for the remediation, compels the City to construct two retention basins to capture the flow of contaminated sewage solids from two major outflows. It also holds the City responsible for the excavation and restoration of the 1st Street Basin.

The EPA suggested two locations for the two retention tanks in the ROD, but was willing to discuss alternative locations with the City's Department of Environmental Protection (DEP) during the remedial design period.

Unfortunately, the City responded as usual, by delaying. The Administration hired a consultant, who came up with a list of 86 possible sites, which included the newly opened Whole Foods market, the Lightstone parcels where 700 residential units are under construction, the former Power Station, which was recently purchased and is being remediated for a future non-profit arts center, Con Edison's 3rd Avenue service yard, and the American Can Factory, a 5-story multi-use arts and manufacturing complex employing hundreds of people.

By suggesting private property as opposed to using City-owned property for the siting of the tanks, the City has inflated the cost to about $500 million. In a letter to DEP, the EPA points out that this is only $6 million dollars less than the cost of the entire Superfund clean-up.

It would appear that the City is continuing to waste time and to shirk its responsibility towards the Gowanus Community

On Wednesday, May 28th, the US Environmental Protection Agency prompted New York City to conduct the design work for the remedial actions outlined in the ROD by Issuing a Unilateral Consent Order. The EPA issues Unilateral Orders if a Potentially Responsible Party (PRP) does not agree to perform the cleanup work through a judicial consent decree or an administrative order on consent.

The DEP just responded to the Unilateral Administrative Order with a ten page letter, agreeing to do the work, but postured that the "UAO contains requirements and deadlines that are not feasible or reasonably capable of performance", that the ownership of the First Street basin by the City is still in question, and most importantly, that "the Record of Decision is based on inadequate information and lacks scientific support."

The City's response goes as far as to call the Order "arbitrary, capricious and otherwise not in accordance to the law."

Last night, Gowanus Canal Superfund Community Advisory Group hosted NYC DEP Commissioner Emily Lloyd at its monthly meeting to discuss her agency's role in the clean-up.
The conversation quickly turned to EPA's Order and to the City's response.
Commissioner Lloyd was quick to dismiss the adversarial tone of her agency's letter.
"It's a lawyers' response to a lawyers' letter," she said smiling.

" I don't think we ever said we won't do this.  My predecessors have had a lot reservations and a lot of concerns about this, but  I think where we are trying to go is to recognize the jurisdiction and say that we are going to do everything we can do to comply," Lloyd explained to the members of the CAG.

"I think there is an advantage to the Superfund bringing all parties to the table and its probably a more ambitious clean-up than the City could undertake on its own. It's hard to imagine that more isn't better for Gowanus."  

"What we see as the real challenge of the summer is to work with the community to arrive at sites [for the retention basins] that will meet many of the goals that we all have, with a minimum of disruptions to the community as possible. I expect that it's not going to be a simple undertaking, but certainly one that I am looking forward to."

Congresswoman Nydia Velázquez, who attended the meeting last night addressed the Commissioner sternly: "All I have to say is that I expect better collaboration from the City administration at this time.  If we have collaboration, we can move forward to do the work. But you should also know that the Federal Government,  through EPA, has the authority to get the City to move in the right direction."

DEP and our administration better heed that advice.  If they continue to play games and refuse to obey EPA orders, the Federal agency can charge the City punitive damages of triple the cost. 

To show its concern in regards to that possibility, the Gowanus Canal Superfund Community Advisory Group voted to adopt the following resolution:

The Gowanus CAG, established by the EPA, which represents a cross section of residents, businesses and civic organizations in and around the Gowanus Canal corridor, demand that New York City as one of the Responsible Parties, as defined by the EPA, actively and cooperatively work with the EPA on all aspects which they are accountable for as required by the Gowanus Record of Decision (ROD), but especially for the timely determining the number(s), size and location(s), and design engineering of the required sewage retention tanks. 

To date, the City's positions/policies concerning the Gowanus Canal and the ROD and their participation in the initial design phase and cooperation with the EPA has not produced the positive results that are required for the clean-up the Gowanus Canal to proceed within the proposed schedule. The Gowanus CAG was alarmed by the recent consent order issued by the EPA against the City of New York that would be unreasonabley expensive for New York City tax payers. If New York City fails or refuses to participate in the planning phase, the EPA under current law can and will charge the City three times (3X) the cost to plan and build the retention tanks.

This new/improved active working relationship in determining the number, size, and location(s) of the retention tanks must take into consideration the current and future sewage needs of the Gowanus corridor (including the possible rezoning of the Gowanus area that would allow for high density residential development).