(Originally published at Pardon Me for Asking)
Just hours before the Gowanus Canal Community Advisory Group's October meeting this past Tuesday, the Environmental Protection Agency sent a letter to New York City warning that the proposed upzoning of the Gowanus neighborhood cannot compromise the EPA Superfund clean-up of the 1.8 mile toxic waterway.
The letter, written by EPA Region 2 Administrator Peter Lopez informs the New York Department of City Planning and the New York City Department of Environmental Protection that his agency anticipates a significant increase in wastewater generated as a result of the rezoning from manufacturing to residential.
EPA estimates that waste water will increase from the present 178,795 gallons per day to 1,977,302 gallons per day once the proposed development has been completely built out.
This should not come as a surprise to the City since the EPA had addressed the same concerns in its comments on the Gowanus Neighborhood Rezoning Draft Scope of Work for an Environmental Impact Statement (DSOW) back in May 2019.
The EPA is very clear that it does not get involved in land use issues. However, anticipating future use is an important component of designing the Superfund remedy. The Federal Agency is also protective of its environmental remedies and will get involved if there is a risk of re-contamination to a Superfund site.
The City of New York is one of the major polluters of the Gowanus canal, as a result of allowing sewage to discharge into the canal when waste water exceeds the capacity of our treatment facilities during periods of heavy rainfall. To remedy the situation, EPA has mandated that the City construct two retention tanks to capture the waste water during these rain events.
The City has been dragging its feet and using one delaying tactic after another to avoid taking responsibility for polluting the canal. As it stands, NYC DEP now anticipates the completion of the first tank in 2032. EPA, for its part, is moving ahead at full speed. In November, the dredging of the toxic material in the canal will begin, followed by the installation of a multi-layer cap at the bottom of the waterway.
Since the City has not yet begun building its tanks, solids from the waste water discharges risk recontaminating the Superfund site.
It will be interesting to see how the City's Departments of Environmental Protection and Planning will try to engineer their way out of this, given the fact that the City has not yet managed to capture current CSOs into the waterway, let alone 10 times the amount.
Once again, it would appear that the EPA is stepping in to protect the environment and the health of the Gowanus community. The same cannot be said about Mayor deBlasio, as well as Councilmen Brad Lander and Steve Levin, who are all pushing for the rezoning before environmental remediation.
Below is Administrator Lopez's letter to the City.
Dear Director Lago and Commissioner Sapienza:
The U.S. Environmental Protection Agency (EPA) is in receipt of public notices indicating that the Department of City Planning (DCP) has resumed the Gowanus rezoning process, commencing with the public meeting on October 22, 2020 before the Brooklyn Community Board 6 Land Use Committee.
As you know, the proposed rezoning affects an area surrounding the Gowanus Canal, which EPA placed on the Superfund National Priorities List in March 2010. The Gowanus Canal Superfund Site (Site) is defined as the approximately 100-foot wide, 1.8-mile-long Canal, and also includes any areas that are sources of contamination to the Canal.
In 2013, EPA issued a Record of Decision (ROD) for the cleanup of the Canal that included the dredging and off-Site disposal of much of the accumulated contaminated sediment within the Canal, the capping of certain contamination remaining below the dredged material, and the control of upland sources to prevent the recontamination of the clean Canal. See https://semspub.epa.gov/workl02/692106.pdf
Such upland sources include certain contaminated sewer solids discharged into the Canal during Combined Sewer Overflow (CSO) events when stormwater and sanitary sewage capacity is exceeded within the approximately 1,758-acre Gowanus Canal watershed. The CSO portion of the EPA-selected remedy requires the City, a potentially responsible party for the Site, to construct and operate two CSO retention tanks. Pursuant to several EPA administrative orders, the City is required to design those CSO tanks and to participate in the first stage of the dredging and capping work. The City will be required to construct the CSO tanks pursuant to a future EPA enforcement instrument.
EPA does not have a direct role in local land-use or zoning decisions. However, accounting for current and anticipated future local land use is an important component in EPA's planning of response actions under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund"). EPA also has a role in ensuring that future land-use changes do not adversely affect the integrity of Superfund cleanups, including the ongoing work at the Gowanus Canal. Accordingly, in May 2019, EPA provided comments to DCP on the Environmental Impact Statement (EIS) scoping documents for the rezoning, and also directed the New York City Department of Environmental Protection (DEP) to provide rezoning-related information to EPA as part of the CSO tank design process.
The first phase of the dredging and capping is to begin in mid-November 2020 in the upper Canal, which is in the area where DCP has proposed rezoning for residential use. Progress on the Canal cleanup is among the factors cited by the City in support of the rezoning. Progress on the CSO tanks, however, has been delayed by DEP, as noted in recent EPA communications to DEP. In June 2020, DEP requested that EPA grant an extension of time to complete the CSO tanks. EPA is reviewing that request, which may impact the effectiveness of the remedy and have implications on the rezoning.
In light of community interest associated with the start of dredging, DEP's CSO-related delays, and the resumption of the rezoning process, EPA believes that it would be of assistance to the City, the community, and other stakeholders to reiterate the cleanup-related discharge parameters of the ROD.
In anticipation of potential redevelopment, the ROD requires that any future activities that fall under the City's purview, including development, do not compromise the effectiveness of the Gowanus Canal remedy. Among other things, the ROD specifically states:
"Current and future high density residential redevelopment along the banks of the canal and within the sewershed shall adhere to NYC rules for sewer connections (Chapter 31 of Title 15 of the Rules of the City of New York) and shall be consistent with current NYCDEP criteria (NYCDEP, 2012) and guidelines to ensure that hazardous substances and solids from additional sewage loads do not compromise the effectiveness of the permanent CSOcontrol measures by exceeding their design capacity. For example, redevelopment to take mitigation measures to prevent or offset additional sewer loadings. Separated storm water outfalls will also require engineering controls to ensure that hazardous substances and solids are not discharged to the Canal. [ROD at page 84.]"
any mitigation measures proposed as part of the development, as a result of the rezoning, would indeed be protective of the Canal remedy.
EPA acknowledges the City's authority to engage in land-use planning and zoning. With that said, however, EPA respectfully submits that any rezoning impacting the Canal must proceed in a manner that is protective of human health and the environment, as envisioned in EPA's Canal remedy.
EPA looks forward to engaging with the City, the community and other stakeholders in a cooperative manner so that the appropriate information is available for a productive consideration of rezoning issues.