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11.09.2009
Twice as Smelly
Mayor wants to scrub Gowanus, avoiding Superfund listing
Pollution on the surface of the Gowanus Canal, part of a series taken by Riverkeeper during a June investigation.
Courtesy Riverkeeper

On October 9, from the banks of the Gowanus Canal, Mayor Michael Bloomberg unveiled a new, $150 million investment in the waterway's infrastructure. Except that it was not exactly new. Seven years prior, the mayor, then at the beginning of his first term, made a similar visit and a similar announcement. Only that investment never happened.

The 2002 cleanup was to bring the city in compliance with the Clean Water Act, which was being violated because during heavy rains, the sewer system would discharge raw sewage into the canal. By 2005, when the improvements still had not been made, the state filed a consent order compelling the city to come into compliance. But it was only this October that the mayor finally returned to the canal, though now for an entirely different reason, and one the new infrastructure would have little impact on: a proposal announced in April by the EPA to make the canal—one of the most polluted waterways in the city—into a Superfund site, a fate Bloomberg, with real estate interests in mind, greatly feared.

"This is the beginning of a comprehensive cleanup that will be done much faster than the years of fighting through the Superfund process," he declared.

That said, the promised improvements to sewage overflow have nothing to do with the toxic sediments in the canal that have caused the community so much concern, and which finally forced the EPA to take action. Furthermore the city's own proposal to clean up those sediments, which was also unveiled last month, has been questioned by environmentalists, scientists, and even the Army Corps of Engineers, the city's partner in the program.

Joshua Verleun, a staff attorney for the environmental group Riverkeeper, noted that major wastewater treatment projects are always good news, "but to lump it in with Superfund is misleading—they're two different things," he said. "Both from a legal perspective and an advocacy perspective, Superfund really is the best way to clean up the canal and it's what the people in the community want and deserve."

The mayor was steadfast in maintaining that his plan had more money and would be more efficient. "There is no Superfund, it's a misnomer," he said. But according to the EPA, its Superfund remediation budget is in excess of $1 billion every year. Region 2, which covers New York, New Jersey, Puerto Rico, and the U.S. Virgin Islands, receives between $80-$100 million per year, and was closer to $250 million this year thanks to stimulus funding.

By comparison, the city's plan counts on the Army Corps of Engineers to tap the Water Resource Development Act for funds to clean the canal, of which there is only $50 million available each year for the entire country. The cleanup of the canal is expected to cost between $250 million and $400 million, making the mayor's nine- to ten-year estimate seem exceedingly optimistic.

Another potential problem is how the city's plan seeks to bring local stakeholders to the table to pay for their portion of the cleanup. Unlike Superfund, which uses detailed investigations to identify responsible parties and compels them to pay for cleanup through legal means, the city's program would be voluntary. The city is hoping those local businesses and developers would help pay for the cleanup to avoid the supposed stigma of Superfund listing. Many of the canal's neighbors believe it is too late for that. "That's just bunk," said Craig Hammerman, district manager of local Community Board 6. "How can you stigmatize a stigmatized area? The cleanup will destigmatize it, though, and that's what we're after."

The mayor has claimed that the city process also has the advantage of being faster than Superfund because it avoids litigation. But Walter Mugdan, director of Superfund Programs for EPA Region 2, counters that of the more than 1,000 Superfund sites to date, no more than one or two have involved lengthy litigation. And when litigation is called for, it takes place after the cleanup is already underway, thereby creating no delays to the process.

Meanwhile, involving the Army Corps, as the city plans, could actually slow down the process by one or two years because the Corps would have to acquire permits for work that the EPA can do as of right. "I think the thing that's important with the EPA is the legal power, the legal authority, which the Corps doesn't have," said Mark Lulka, the Army Corps' project manager on Gowanus restoration.

Another issue that could slow the cleanup—and add to its complexity—is that it would be a multiagency operation, between the city, state, EPA, and Army Corps. "Superfund is a known quantity," Lulka said. "Do I think we can do the work? Yes. But it's never been done before."

David Von Spreckelsen, senior vice president at Toll Brothers City Living, has joined the mayor in opposition to Superfund listing. As head of the Clean Gowanus Now! Coalition, Von Spreckelsen argues it threatens millions of dollars of development, including his own 460-unit residential complex on the canal's shores, for little gain. "At the end of the day, what we'll have is a waterway where, instead of eating one fish a month, you can safely eat a couple," he said. "In a perfect world, it's a good thing, but for people on the canal, it won't make that much of a difference."

But when presented with the potentially higher costs and timeline of a city-run cleanup, Von Spreckelsen began to concede that it might not be the best option. "If that were the case, of course we'd say that's fantastic," he said. "Nobody has a bigger interest in seeing this cleaned up than us because we have our rezoning and we're ready to build." Von Spreckelsen did reiterate that his attorneys had told him the Superfund process would be intractable, and he remained skeptical that banks would be willing to lend in a Superfund area.

It may come down to that, though, as the Bloomberg team was dealt a blow on October 16, when Nydia Velázquez, the area's congresswoman and a tireless supporter of the canal, sided with Superfund. "With nearly three decades of experience, the EPA has the expertise and resources to carry out a comprehensive remediation of these sites, creating a safe place for New Yorkers to live and work," Velázquez said in a statement.

With the city and the EPA's plans now both official, all that remains is for the EPA to announce its position on Superfund listing—whether it will take over the canal or bow to the city. That announcement was expected this fall, and while it still could possibly be announced, the EPA typically makes such announcements only twice a year, in March and September. On September 29, Newtown Creek was announced as another site in the city under consideration for the Superfund list, but there was no word on the Gowanus.

Whether that means it will wait until March remains to be seen, though, as Mugdan and others suggested there was nothing stopping the EPA from announcing it sooner. The mayor has made at least one official call to discuss the issue personally with Lisa Jackson, the EPA administrator who used to run New Jersey's Department of Environmental Protection.

Marc LaVorgna, a mayoral spokesperson, insisted the city would prevail because its approach is superior. "They're confident they have the better plan, and we're not," he said of the EPA. "It's a difference of opinion."

For Richard Plunz, director of the Urban Design Lab at Columbia's Earth Institute, where he has done work on the Gowanus, the mayor's reasoning is clear. "I am not so familiar with the details of the NYC alternative plan," Plunz wrote in an email. "But of course I understand that the city doesn't want to hinder real estate investment in the short term with a more cumbersome (but effective) Superfund cleanup. This game is obvious to all." 

A version of this article appeared in AN 18_11.04.2009.

Matt Chaban