In A Strange Twist, EPA Region 2's Administrator Enck May Let "Policies" Rather Than Science And Engineering Contaminate Gowanus Canal Superfund Clean-Up

At the January 19, 2016 Gowanus Canal Superfund Community Advisory Group

Doug Sarno, CAG Facilitator

Region 2 Superfund Director Walter Mugdan

Ask many folks here in Gowanus and Carroll Gardens about our toxic Gowanus Canal, and they will shrug their shoulders and say: "Fuhgeddaboudit! That canal will never be cleaned. At least not in our lifetime."
The cynicism seems well founded. After all, the man-made canal became polluted almost immediately after it was completed in 1869.  There never seemed to be either the political will nor the money by the City of New York nor by the State of New York to address this environmental disaster in any meaningful way.
Thankfully, in 2008, Alexander (Pete) Grannis, then-Commissioner of the NYS Department of Environmental Conservation, reached out to the United States Environmental Protection Agency
to "initiate an investigation and hazardous ranking score" for the canal.
The chances for a comprehensive clean-up improved significantly when the Environmental Protection Agency added this fetid waterway on the Agency’s Superfund National Priorities List in 2010. Declaring that the Gowanus canal was "one of the nation's most extensively contaminated water bodies" as a result of years of discharges, storm water runoff, sewer outflows and industrial pollutants,  EPA gave the community real hope.

From the beginning, EPA Region 2, which oversees this particular Superfund, was transparent with the public.  Regional Administrator Judith Enck and Region 2 Superfund Director Walter Mugdan met often with the community and assured the public that the Federal Government had the power to force the polluters to perform remediation as well as to foot the financial bill.  The message was clear: the Agency would not walk away from the clean-up until the job was done. Even then, the EPA would continue to monitor the canal in  perpetuity.

As the process got under way, the Gowanus Canal Project Manager Christos Tsiamis, and  Legal Council  Brian Carr  continued to update  members of the community almost monthly through the Gowanus Canal Superfund Community Advisory Group.
Under Tsiamis' capable and dedicated supervision, the project was moving forward even ahead of the time-table set by the Agency. Most importantly, science, nothing but science, seemed to guide Region 2's decision making.

But then something changed just in the past few months.  Instead of science, politics seemed to contaminate the process. The responsibility for this latest twist seems to lead right to Administrator Enck.

It all has to with the decision regarding the siting of an 8-million gallon retention tank the EPA has ordered New York City to build as part the remedial design for the canal . The tank is a combined sewer overflow (CSO) control measure for the upper reach of the canal meant to "significantly reduce overall contaminated solid discharges to the Canal."

EPA Region 2  has suggested placing the 8-million gallon tank underneath the Double D pool at Thomas Greene Park. The Agency reasoned that the site is already owned by the City, which would save the cost of acquiring land.
In addition, the park sits on top of the former Brooklyn Union Gas Fulton Municipal Manufactured Gas Plant (MGP) which was in operation at this location from 1879 to the early 1930s. Since coal tar is currently oozing under the pool area and flows towards the Gowanus Canal, National Grid, the party responsible for the environmental clean-up, has been asked by EPA to dig up the pool so that the source contamination can be removed. By working in tandem with National Grid, DEP would save money and time.

The NYC DEP, on the other hand, would prefer to site the 8-million gallon tank on privately-owned land along the canal, adjacent to the park. The sites in question are 234 Butler Street and 242 Nevins Street. In addition, the City wants to acquire 270 Nevins Street, which is currently occupied by Eastern Effects Studios, as a staging area. The City is willing to make use of Eminent Domain to acquire the three properties if the private owners are unwilling to sell. The necessary legal proceedings involved in making this happen will take time and millions of dollars.

The City reasons that it wants the tanks in closer proximity to the rest of its Gowanus infrastructure at the head of the canal. It also wants to build a head-house for the mechanical elements related to the tank. The above ground head house envisioned by the City would take up 1/4 of Thomas Greene Park if built there, DEP argues. The neighborhood is already underserved as far as green spaces according to the City.  Using the privately owned parcels would allow them to maintain the park as is and add additional parkland on those purchased parcels.

This issue was discussed at length by Region 2 Superfund Director Walter Mugdan at the Gowanus Canal Community Advisory Group meeting last night.

Though his agency had thought that it would have a resolution on this matter by now,  Mugdan informed the community that the decision is most likely going to be announced in February or March.

Ir remains clear that EPA still sees the Park as the best location for the tank because the location will save time and save the City significant costs.

"I still believe that is pretty accurate," Mugdan told the community last night. "Since the pool needs to be dismantled anyhow, it seems like a pretty logical location to put the CS0 tank." But he added: "We have had a lot of interaction with the City on quite high levels."  According to Mugdan, the City has brought to the EPA other considerations and has argued "eloquently and forcefully" for their own plan.

The City's proposal, which includes condemnation proceedings and potentially lengthy lawsuits, obviously has the potential of delaying the environmental clean up of the Gowanus Canal significantly and it will add a lot of uncertainty.

Mugdan admitted that, "the chunk of time [because of these legal proceedings] would be longer in almost all certainty than if the tank went to the park location."

He stated that one of EPA Region 2's main concern is "scheduling and complexities",  but that his Agency feels that if, through conversations with the City, satisfactory conclusions can be reached, "the EPA can accept the City's request." 

Mugdan stated that "Our goals are the following: assuming that we can come to an agreement with the City as to the location of the tank, our expectation is that we will have an Adminsitrative Consent order for the City to sign."  However, according to Mugdan, a certain amount of uncertainty remains. "We are still not where we would like to be on January 19th."

Which brings me to the important question:  Why would the EPA Region 2 under the leadership of Judith Enck, which has prided itself on keeping its own timeline, open itself up to uncertainty and time delays?  And why does it seem to cater to the City, which is a PRP?  After all, there is a real possibility that the City is trying to use eminent domain to delay the clean-up process?  Historically, one City administration after the other has been successfully kicking the problem down the road.  That is why we needed the EPA to interfere in the first place.

As one of the Gowanus Canal Community Advisory Group members mentioned last night, it seems like politics, not science has been  driving this particular debate.  Mugdan's answer:"I would call it policy.  If you want to call it politics, you can."

Mugdan is a masterful speaker.  He certainly did a good job preparing the community for a decision that has most probably already been reached by his boss, Judith Enck.  Enck, a political appointee who will have to leave her present post at the end of 2016, is not a scientist nor an engineer.  If she intends to cave to political pressure in regards to the canal, she will not be there to deal with the consequences.  

It is a pity that her legacy may include undermining the team in charge of the Superfund clean-up.

It is interesting to note that Christos Tsiamis, the EPA engineer and project manager in charge of the site, was not in attendance last night. Neither did he attend the last CAG meeting.