VOGs Sends Follow Up Letter on Request for EPA Investigation

By Registered Mail and Email

Mr. Sean W. O’Donnell
Inspector General
US Environmental Protection Agency
Office of Inspector General
1200 Pennsylvania Avenue, NW (2410T)
Washington, DC 20460
[email protected]

Mr. Breon Peace
US Attorney, Eastern Districtof New York
US Department of Justice
271 Cadman Plaza East
Brooklyn, NY 11201
[email protected]

June 14, 2022

Dear Sirs:

By letter dated May 16, 2022 (copy attached), Voice of Gowanus (VoG) requested the USEPA Inspector General open a full investigation of multiple compliance and enforcement failures affecting the Gowanus Canal under Federal and State laws and regulations, including but not limited the Comprehensive Environmental Response Compensation and Liability Act (CERCLA orSuperfund”), and the Clean Water Act (CWA).

VoG is writing again to follow-up on that correspondence for three reasons:

1. To request USEPA IG acknowledgement of receipt of the May 16, 2022 investigation request;

2. To identify additional areas for investigation (including potential criminal activity) based on events transpiring since the prior request;

3. To provide additional information regarding regulatory failures noted in the previous investigation request.

As the May 16th letter details, devastating effects from decades of compliance failure in Gowanus are being compounded by a planned 80-block rezoning that will likely add more than 30,000 additional residents to a sewershed already burdened with a Superfund Listing improperly disaggregated from 33 Canal-surrounding contamination sites in the NPL designation, an Impaired Water designation under CWA §313, repetitious Combined Sewer Overflow (CSO) Enforcement Orders leading to a Long Term Control Plan of questionable effectiveness, failed Water Quality Standard setting and enforcement, and a Sewage Backup Administrative Order that has yet to prevent raw sewage flooding of basements in Gowanus and surrounding neighborhoods.Now, premature construction is releasing contaminants and threatening the integrity of Canal, groundwater, and soil cleanups throughout the Gowanus area.

Construction Pile Driving in Source Contamination Operable Units

At a May 24, 2022 Gowanus Community Advisory Group (CAG) meeting with staff from EPA Region 2, NY State Department of Environmental Conservation (NYSDEC), and NY City Department of Environmental Protection (NYCDEP) in attendance, CAG and community members enquired as to the regulatory oversight being performed for the recent initiation of construction pile driving (i.e., 90 foot high foundation piles) on a parcel of the Citizens Gas Works Cleanup site to learn whether and how officials were providing approvals and oversight for construction in severely contaminated areas.

Specifically, the community asked which officials in any of the Agencies had reviewed the action, or provided approvals, or was conducting oversight of the construction to prevent toxic leakage, utility damage, and the compromising of other cleanup technology operating in the area.None of the Agencies indicated any prior review or ongoing monitoring action of the 90-foot piles penetrating the contaminated soil and groundwater, creating exposure pathways and toxic volatilizations in close proximity to a school and playground.Moreover, no regulatory staff could confirm compliance or consistency with Site Management Plans or the Certificate of Completion (assuming either has been completed for the Citizens Site), or if the pile driving was being monitored to protect the integrity of the centuries-old Bond-Lorraine sewer line running beneath the property.[1]

However, when the regulators were pressed to explain how 90-foot piles were being driven into a remedy-incomplete Manufactured Gas Works site with coal tar, PAH, and BTEX contamination as deep as 150 feet below the surface with no regulatory oversight, a representative of the NYSDEC claimed the only regulatory role for DEC in construction oversight at a Superfund Operable Unit was to receive and acknowledge a “Change of Use” certification.The DEC official further stated “there is never a formal approval that we give for this work.”[2]In addition, the DEC representative indicated the regulatory deference, if not full abdication, adopted by DEC was driven by tax abatement program deadlines, explaining to the community: “I’m sure you’re aware of the 421a program which is the purpose these piles are going in.They [meaning the developers] have until June 15 to place the piles in the site to qualify for tax credits.”[3]

As the NYSDEC representative confirmed, regulatory overseers in all three environmental protection agencies at the Federal, State, and Municipal levels were all taking a hard pass from their duties—and risking public exposure, expanded contamination, and broader remedy damage—to allow a select group of developers to meet a June 15, 2022 construction start date necessary to claim expiring public subsidies to further private development and profit.At a minimum, USEPA and NYSDEC oversight should have confirmed that these piles in these locations reaching the intended depths would not create human exposure, damage the utility and remedy transport and pumping infrastructure, or otherwise damage the site capping efforts crucial to the integrity of the planned cleanup.

USEPA Decision-Making for Parcels Subject to Rezoning

In addition, further review of previous USEPA claims and actions has recovered key information provided by USEPA counsel to the CAG regarding the failure of Region 2 to participate in the Environmental Impact Review Process as a Cooperating and/or Involved Agency under the legal requirements of both the National Environmental Policy Act and the NY State Environmental Quality Review Act (Item D(4) in the May 16, 2022 request). Both statutes mandate that any Agency involved in decision-making for the action beingassessed actively cooperate or be involved in the EIS.The NYS SEQRA Handbook states, “an agency is“involved” when the determination is made that the agency hasor will havea discretionary decision to makeregarding some aspectof the action (emphasis added).”[4]

The viability of most of the planned rezoning area for residential towers and other reuse depends entirely on whether a hundred years of embedded contamination can be removed or otherwise remediated such that the massive disturbances of soil and water required in high-rise construction (e.g., 90-foot foundation piles noted above) can be approved.To claim administrative land use re-designation through rezoning is separate from the decisions required to implement the rezoning via multiple construction and development projects is an overt act of segmentation barred by both statutes.Moreover it is inconceivable that the USEPA believes it has no decision-making responsibility in the development, construction, and sustainability of thirty-story towers being constructed around one of the country’s most polluted waterways on top of soil and groundwater full of toxic contamination in a federal flood zone that is registered on the National Priorities List.

Examples of how consistently USEPA has been—and continues to be—a decision-maker in public and private party execution of the Gowanus Rezoning Plan are provided in the CAG meeting minutes of September 26, 2017, during which USEPA Region 2 counsel detailed all the decisions USEPA was making regarding the issuance of orders, cleanup, and other remedy actions required for reuse:

—Major settlement issues for the balance of this year: EPA is in discussions with National Grid and NYS about issues related to the Fulton cleanup. We entered into an order last year with the City; we contemplated entering into an order with National Grid related to the cleanup of the park and other aspects – discussions are beginning now for a $100M cleanup order; there are discussions with the Powerhouse, which needs to come to EPA for PCB cleanup approval and to NYS for what they’re doing with the brownfields program. It’s a very complex cleanup, in addition to the First Street Basin. We are in discussions with parties to cash out.

—There are 3.6 miles of bulkheads; the National Grid cleanup for Public Place bulkheads and the Fulton cleanup covers part of it – EPA is also working with developers. In total have eight different bulkhead orders going on right now in eight stages of discussion. At $10,000/linear foot, each requires separate approval, a consent order, and a design under EPA supervision.Later this year, we need to secure agreements with all parties to do remedial action (right now EPA is doing remedial design, which is 10% of the cost) such as dredging and tanks, which may include Natural Resources Damage Assessment (NRDA) trustees. The bulkheads need to be built first, specifically the parts around the upper part of the Canal and the pump station. EPA may negotiate a separate agreement with PRPs to split that work out from the overall dredging/capping work and get started before finalize the overall dredging/capping agreement.

These orders, settlements, and cleanup requirements, inter alia, remain operational today (including the repetitious attempts at enforcement and compliance) and are inextricably part of Gowanus Neighborhood air, land, and water reuse.

In light of the above, VoG reiterates its request for EPA IG investigation of the multiple issues previously identified, and hereby appends the following additional areas of investigation to the original letter of May 16, 2022:

•  Continued USEPA leadership failure to rectify the original NPL Listing improprieties that left Subsite/Operable Units of the Gowanus Canal under the jurisdiction of NYSDEC given the obvious likelihood that improper and dangerous construction activities to “vest” 421a tax subsidies would occur;

•  Multiple actions by EPA Region 2 that are approaching willful blindness to State and Municipal actions to minimize or avoid needed cleanup actions, manipulate remedy and construction timing, avoid ongoing compliance requirements under CWA, CERCLA, and Federal Emergency Management flood requirements, and generate inadequate and misleading data and information in the Gowanus Rezoning Environmental Impact Statement (EIS);

•  Failure of oversight on all manner of monitoring and compliance assurance that would prevent dangerous premature construction for the primary purpose of securing expiring taxpayer subsidies;

•  Failure to legally compel sewage retention tank construction through mandamus and other enforcement options under federal law;

•  Failure of Region 2 to participate in the Environmental Impact Review Process as a Cooperating and/or Involved Agency, and prevent illegal segmentation between zoning administrative actions and inseparable redevelopment actions thereby intended in which USEPA has ultimate decision-making authority;

•  Potential criminal violations of bribery, campaign finance, or other laws that may be affecting environmental protection decision-making in the Gowanus in favor of development and against human health and the environment, including:

•  Illegal Brownfield designations to provide financial assistance to developers;

•  Illegal issuance of construction permits or other building approvals in contravention of pre-existing Federal and State environmental law requirements at sites where construction will occur;

•  Unsupervised, faulty cleanup activity being used as a pretext for illegal evictions.

At a prior meeting of the Gowanus CAG, USEPA Region 2 confirmed the “lack of progress in certain areas, particularly with the CSO control tanks and non-compliance [with USEPA Enforcement Orders] by the City, and intentional and willful non-compliance by the City.”Region 2 also told the CAG, “everyone knows that until the [administratively ordered sewage retention] tanks are built, even before the development happens from the rezoning, the cleanup is inadequate.” Once again, CAG meeting revelations confirm the need for EPA IG investigation to identify and prevent fraud, waste, abuse, mismanagement and misconduct, and even possible criminal actions.

VoG thanks you in advance for confirming receipt of this and the prior correspondence, and for your attention to the ongoing enforcement failures at multiple levels of government.We hope the Gowanus Neighborhood will receive the necessary and proper enforcement attention our community deserves.

Sincerely yours,

Linda LaViolette& Jack Riccobono

Co-Chairs, Outreach Committee

Voice of Gowanus

[email protected]

[email protected]

Cc:

The Honorable Joseph R. Biden Jr.
The Honorable Chuck Schumer
The Honorable Kirsten Gillibrand
The Honorable Nydia Velázquez
The Honorable Jerrold Nadler
The Honorable Kathy Hochul
The Honorable Jabari Brisport
The Honorable Jo Anne Simon
The Honorable Marcela Mitaynes
Administrator Michael Regan, EPA
Matthew Silverman, Assistant U.S. Attorney, Chief of Environmental Litigation, Eastern District, DOJ
Brenda Mallory, Chair, Council on Environmental Quality, Executive Office of the President
Matthew Tejada, Director, Office of Environmental Justice, EPA
Charles Lee, Senior Policy Advisor, Office of Environmental Justice, EPA
Lawrence Starfield, Acting Assistant Administrator, Office of Enforcement and Compliance Assurance, EPA
Administrator Lisa Garcia, EPA Region 2
OIG Hotline

Atch: VoG Letter to USEPA Inspector General dtd May 16, 2022


[1]The Gowanus Superfund Community Advisory Group (CAG) has constantly sought answers through various CAG Committees regarding the conduct of the multiple soil and water cleanups in the Canal Zone, including properties and parcels left in State Superfund or State Brownfield programs that are clearly Subsites or Operable Units of the Federal Superfund Listing.That very evening, the CAG had only just received Region 2 answers to several written questions in which USEPAassured the Community in writing it would be overseeing the NYSDEC monitoring activities to“include geotechnical monitoring (vibration and crack monitoring) to protect nearby utilities and other sensitive structures at the site.” While not specified, “sensitive structures” other than the Bond-Lorraine sewer include nearly two dozen coal tar recovery wells on and around the Citizens property intended to inter alia, prevent recontamination of the Gowanus Canal under the Superfund cleanup.

[2]A video recording of the CAG May 24, 2022 Meeting is availablehere.The exchange regarding the regulatory oversight (or lack thereof) for the 90-foot piles being drive-in to the contaminated soil and groundwater begins at approximately 1:35:00 of the tape.

[3]CAG May 24, 12002 Meeting Recording, approximately 1:40:00

[4]THE SEQR HANDBOOK, 4TH Edition, Chapter 3: PARTICIPATION IN THE SEQR PROCESS, p.62.