NYC Superfund - Toxic Solution or Toxic Label?

On February 8, the Museum of the City of New York hosted a program called, “NYC Superfund: Toxic Solution or Toxic Label?” The event was presented as part of the Museum's Urban Forum series: “New York Neighborhoods—Preservation and Development” and was co-sponsored by the Newtown Creek Alliance. Moderator Roderick Hills, the William T. Comfort III Professor of Law at New York University, introduced four panelists: Carter Strickland, Deputy Commissioner for Sustainability, New York City Department of Environmental Protection; Walter Mugdan, Superfund Division Director of the United States Environmental Protection Agency; Kathleen Schmid, Director of the Newtown Creek Alliance; and Alan Bell, principal and co-founder of Hudson Properties.

Each of the panelists opened with remarks about the status of the Superfund clean-up at the Gowanus Canal and Newtown Creek. Although there are similarities at both sites, they are markedly different in the types of proposed uses for the surrounding land. Hudson Properties received city approval for a development at Public Place along the Gowanus Canal a couple of years ago. Mr. Bell, the only person on the panel representing a for-profit entity (and the only non-lawyer) remarked how designation on the EPA National Priorities List kills any short-term development options and expressed some frustration that just as the city was considering a significant rezoning of the area, the EPA decided to add the canal to the NPL. Admittedly, despite the well-established history of the canal’s toxicity, the timing was unfortunate in light of Mayor Bloomberg’s ambitious plan to build enough housing for the additional one million inhabitants the city is expected to receive over the next 20 years.

Some of the key facts and figures presented during the panel discussion included the following: According to Mr. Mugdan, early cost estimates of the Gowanus Canal’s cleanup are approximately $300-500 million with target dates of 2014 for water clean-up and 2020 for the sediment clean-up at the bottom of the canal. The remediation target is primarily coal tar, a sticky residue that is a by-product of the chemical process that converts coal to gas; there were three manufacturing gas plants along the banks of the canal that were the primary sources of the coal tar. In total, there are approximately 20 potentially responsible parties (PRPs) that have been so far identified at the canal, including New York City, and presumably EPA will work closely with each of them to ensure an appropriate level of clean-up.

There are three steps available to the EPA to ensure that contaminated substances are removed:
1. Persuade property owners to voluntarily clean up.
2. If an owner declines, an order is signed that forces the owner to clean up with heavy penalties for non-compliance.
3. If neither of the first two options works (for example, the owner is bankrupt), the federal government pays for the clean-up.

According to the EPA, the most sensible future development of the canal’s neighborhood is primarily residential with some commercial uses since most of the infrastructure is already in place (public transportation, community facilities, etc.). Accepting that the neighborhood will be primarily residential, it makes sense that the level of clean-up has to meet much more stringent requirements. However, as our group pointed out in a position paper in 2009, there is a dearth of accessible community facilities for new residents, the local schools are full, and the public transit system, which has suffered some recent cutbacks, is not prepared to handle the additional population of the Hudson Properties and Toll Brothers’ developments, let alone the flood of residents that will be realized when the entire area is rezoned and developed. One only has to look at the data available through recent censuses to see how the demographic has shifted in the surrounding neighborhoods to more family-oriented communities; additionally, the changing global climate and rising water levels are something that nobody seems to have considered in any discussion about the canal’s clean-up and future development. If digging down to remediate is so expensive, where will all the cars be parked and how will properties be designed to withstand increased flooding? With at least nine years to design and plan a comprehensive strategy, we could be wasting an opportune moment.

Mr. Bell pointed out that despite the canal’s designation, the surrounding land is also contaminated. A question was raised about clean-up expectations during the Q&A session following the panel discussion: assuming that the target clean-up dates presented by the EPA are met, was it possible that nine years from now we could have a clean canal, surrounded by contaminated land? Mr. Mugdan answered the question somewhat deftly by asserting that New York State is working with National Grid, a PRP for the defunct manufacturing gas plant properties, to remediate the land concurrently with the EPA’s clean-up of the canal. The level of clean-up would be determined by the future land use (commercial vs. residential). For land not yet cleaned in 2020, the EPA’s solution is to build a “cut-off” wall at the boundary between the waterway and remaining contaminated land once the canal has been cleaned.

Although any clean-up is a good thing, there seems to be a flawed logic in the current approach. Who has determined the highest and best possible use for the land? Given that coal tar is so toxic that it apparently melted a sample tube over a weekend, why would the EPA draw a very firm line between the contamination of the waterway and the surrounding land that is clearly the source of contamination? Is there a comprehensive solution being developed for the combined sewer overflows that the canal neighborhood frequently experiences? Without new strategies to address these old problems, the EPA may leave us with a rejuvenated canal surrounded by heavily polluted land ripe for development, and a community still wondering how long it will take to heal the environmental scar that has marred our neighborhood for over a century.