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On the Gowanus, Say 'No' to Superfund


Photo (cc) Bryan Bruchman
Would Superfund status radically slow down the commercial development of the waterfront?

The one thing that everyone with an interest in the Gowanus Canal can agree on is that it needs to be cleaned up.

But the three important questions are: (1) what needs to be done, (2) why, and (3) when? It is the city and not the U.S. Environmental Protection Agency that has the correct answers to these critical questions: (1) address the sewage overflow issue, (2) because it is the contaminant most affecting quality of life, and (3) do it now.

The city's plan would address the current leading contaminant of the Gowanus Canal that most affects the quality of life of those who live and work in the area -- the raw sewage that runs into the canal when the combined (storm and sanitary) sewer system overflows. Upgrading and modernizing the flushing tunnel and pumping station, as well as selective dredging and capping of exposed sediments, can begin under the city's plan this fall; the city has allocated at least $175 million to accomplish this urgent goal.

(For an opposing viewpoint on cleanup of the Gowanus Canal, see Brooklyn's Lavender Lake Needs Superfund.)

This work, combined with the city's requirement that private developers build new storm water systems when they develop properties along the canal, will dramatically reduce the sewage overflows that are today the primary source of pollution of the canal. In addition -- just as a Superfund designation would do -- the city will compel the parties responsible for the decades-long pollution of the canal to contribute money to finance additional dredging of the sediments at no expense to taxpayers. The city, officials have said, will work collaboratively with the federal Environmental Protection Agency and the New York State Department of Environmental Conservation to complete this cleanup. Rejecting a counterproductive Superfund designation will not mean excluding the federal government from a central role in the cleanup.

Taking Care of Sewage

The chief concerns of area residents are the odors and unsightly floatables in the canal caused by combined sewer overflows. Yet the Environmental Protection Agency has no intention (affirmed publicly by its Region 2 Director Walter Mugdan) to address the issue of sewage in the canal. The agency plans to dredge only the sediments at the bottom of the canal. While this is an important objective, the cost to remove all of these sediments is staggering and, notably, these sediments are not affecting area residents.

A Superfund designation could put on hold the city's efforts to address the important sewage issue. And given the Superfund's track record at other polluted waterways, even the sediments may not be removed for 25 years or more -- witness last week's news that, after a quarter-century, the dredging of the Superfund-designated Hudson River is just now set to begin!

Let's be clear: Sediments at the bottom of the canal pose no threat to human health unless humans come in contact with those sediments on a regular basis. That would happen only if an individual purposely and repeatedly dove to the bottom of the waterway. Yet the Environmental Protection Agency plans to ignore the sewage that runs into the canal during heavy rainfall and instead spend $400 million on dredging sediments at the bottom of the canal that are not impacting people.

Plans Put on Hold

More broadly -- based upon empirical evidence from other similar Superfund designations of waterways that have multiple parties responsible for their pollution -- what path would this cleanup be likely to follow if the Gowanus was designated a Superfund site?

The first step is for the federal government to conduct analyses of the condition of the canal. The Environmental Protection Agency has some seed money to accomplish this. During this period all plans for city remediation of the canal as well as private investment would be put on hold because no one would be willing to spend money until the agency's expectations for the cleanup are clear.

Further, during this time it will be unlikely that government authorities would be willing to issue permits for anyone to do work along the canal. So, there would be no private investment to create new infrastructure that would separate storm water from the combined sewer system. The city's plans for the pumping station, flushing tunnel and selective dredging and capping of exposed sediments to be performed by the Army Corps of Engineers also would likely be stalled. As such, there would be no improvement in the quality of life for nearby residents and workers because the sewage and exposed sediments would not be addressed. In fact, the $15 million budgeted by the Army Corps of Engineers would be rescinded if a Superfund designation were to occur, city officials have said.

Years of Lawsuits

Also at this time, the federal government will be looking for "potentially responsible parties" to determine who may be liable for past pollution. This is necessary because the agency does not have money to fund a cleanup of the canal. The federal government would sue these "parties" to raise this money. Decades, yes decades, of litigation would ensue, because those that are sued would just turn around and sue others to defray their costs.

The Environmental Protection Agency will not come up with $400 million by going after private parties. There are no Exxon/Mobils or General Electrics involved here -- no deep pockets. Take a look at most of the property owners and businesses currently on the canal and who have been there historically. It is impossible to imagine how the agency could suggest that it could raise $400 million them.

However, the potential does exist to raise the money by going after the city and the utility, National Grid. Should the federal government sue the city and National Grid to raise the money that it is unable to obtain otherwise (arguing they are potentially liable parties) we would all be able to thank the agency for higher taxes and utility charges when the city and National Grid seek to recoup these monies. (National Grid took over Brooklyn Union Gas, whose coal gasification plant has been blamed for some of the canal's pollution.) And while this litigation is going on, the city would not be able to pursue its current cleanup plans and National Grid would cease the voluntary cleanup it has initiated as a part of the state's brownfields program.

While the analyses grind on and the lawsuits and countersuits rage, the condition of the canal would deteriorate. Twenty years from now, the area would likely look like it does today -- or worse. One only has to look into other Superfund projects like the Hudson and Passaic rivers. Both of these were designated as Superfund sites in the 1980s; neither has seen any cleanup activity commence in more than 25 years.

So let's have the city, state, and private sector -- working with the Environmental Protection Agency -- get going on the cleanup without all of the wasted time and endless litigation that inevitably accompany a Superfund designation.

David Von Spreckelsen is a senior vice president of Toll Brothers and a member of the Clean Gowanus Now! Coalition - a group of two-dozen developers and property owners along the canal. †Toll Brothers received ULURP approval for a zoning change for a mixed-use project along the canal from the City Council earlier this year. The project will include 450 market rate and inclusionary housing units.

Brooklyn's Lavender Lake Needs Superfund


Photo (cc) Pro-Zak

After almost 150 years of industrial use and decades of raw sewage discharges from New York City's combined sewer system, the Gowanus Canal has become one of the nation's most contaminated bodies of water. The putrid sediments at the bottom of the canal contain PCBs, heavy metals, pesticides, volatile organic compounds, sewage solids and coal tar wastes. Adding to this toxic legacy, the manufactured gas plants, cement factories, oil refineries, tanneries, chemical plants and other industries that have called the canal home also have left behind underground plumes of pollution and contaminated the land and the groundwater, which continues to leach toxins into the canal.

On April 8, 2009, the federal Environmental Protection Agency announced a proposal to include the Gowanus Canal in the federal Superfund Program, which cleans up hazardous sites. This followed a request from the New York State Department of Environmental Conservation, which acknowledged that cleaning up the Gowanus would be too complicated for the state to handle. Soon after the Environmental Protection Agency's announcement, Mayor Michael Bloomberg announced his opposition to the agency's proposal, saying the city could handle the job.

(For an opposing viewpoint on cleanup of the Gowanus Canal, see On the Gowanus, Say 'No' to Superfund.)

How Superfund Works

The federal Superfund program was created in 1980 in response to public outrage over the threat that toxic waste sites such as Love Canal and Valley of the Drums posed to human health and the environment. Superfund provides the EPA with authority to respond to releases of hazardous substances that may endanger public health or the environment and to clean up many of the country's most contaminated sites.

About 70 percent of site cleanups are paid for by parties thought to be responsible for the pollution. EPA has power under Superfund to force the responsible parties to clean up a site or risk penalties, including having to pay EPA three times the cost of any remediation financed by the trust. However, if the responsible party cannot be found or has gone bankrupt, the Superfund trust can pay for the remediation of highly contaminated sites. Once a site is listed on a National Priorities List, the EPA can use money from the fund to fully investigate the extent of contamination, perform a remediation feasibility study and work on the site. Unfortunately, the Superfund trust is no longer funded by taxes on polluting industries and now relies on $1.2 billion in yearly congressional funding.

A Comprehensive Cleanup

After decades of environmental abuse, the Gowanus Canal is poised to leave behind its history as the "lavender lake," so called because of the color industrial waste tinged its waters, and be redeveloped into a community offering, housing, retail and recreational opportunities. With input from many active community organizations, the current redevelopment proposals envision neighborhoods focused on a clean canal with parks, a public promenade, and increased access to and use of the water.

With this future as a backdrop, the Gowanus Canal must be cleaned up in a comprehensive and thorough manner. Various individual plans address some of the environmental problems in the canal and surrounding area, but none of these proposals deals with the contamination in the canal itself or seeks a comprehensive solution to the continued leaching of pollutants from contaminated sites into the canal.

Several sites in the area are in the process of being cleaned up under state Department of Environmental Conservation supervision, including the future Whole Foods site at Third Street and Third Avenue, the Toll Brothers site on Bond Street, and the Public Place site at Fifth and Smith streets. The city also has plans to reduce the volume of combined sewer overflows that enter the canal and to rehabilitate the flushing tunnel that pushes cleaner water into the canal from New York Harbor.

If the Gowanus Canal is listed on Superfund's National Priority List, these projects will continue under state supervision as planned. However, the EPA has stated that the most important task of any cleanup would be to stop the upland leaching of pollution into the canal. In addition, according to the agency, existing clean-up projects must be coordinated with the remediation plan for the canal. This coordination may delay some development projects.

The ultimate goal must be a comprehensive and thorough cleanup of the canal, rather than a piecemeal approach by state and city agencies with different priorities. While not a perfect solution, a Superfund designation will provide the best chance for a thorough cleanup of the canal, so that this unique waterway can serve as the centerpiece of a revitalized neighborhood where residents can enjoy the canal itself and the surrounding land, free of concerns over the public health threat of any toxic pollutants lurking beneath the surface.

The Lowe's Home Improvement store on Second Avenue serves as an example of the dangers associated with cleaning up contaminated land without comprehensive planning. The Lowe's was built on the site of a former manufactured gas plant and was remediated under the State Brownfields Program. Although Lowe's conducted a cleanup prior to starting construction, published reports state that Lowe's did not address the entire site and that coal tar contamination has now migrated toward the supermarket next door. Without a comprehensive cleanup plan for the canal there is a danger that other sites will not be adequately remediated, leading to the continued pollution of land, groundwater and the canal.

The City's Plan

When Bloomberg announced his opposition to listing the canal as a Superfund site, he indicated that the city would come up with an alternative plan that would achieve virtually the same goal, but without the perceived stigma that "Superfund" carries. The administration has not released final details but promises that its alternative will be supervised by the EPA, will study the canal's contamination to the same extent that Superfund would and will achieve a cleanup to the same standards. The city has also proposed having the parties responsible for the contamination pay for a portion of the cleanup and is seeking funding for dredging of the canal from the U.S. Army Corps of Engineers.

With a price tag for the cleanup that could reach $300 million to $400 million, it remains uncertain whether responsible parties would pick up part of the costs and whether money from the Army Corps would provide sufficient funding. Any cleanup that does not list the canal on the National Priority List would not allow the EPA or anyone else to use money from the Superfund trust to study the extent of contamination, pay for cleanup if necessary or compel the original polluters to do the cleanup themselves.

Although the city has provided few specifics about its proposal, any alternative to Superfund would lose the tools and funding of the Superfund program, while gaining few if any advantages. This is why Superfund presents the best mechanism for retiring the Gowanus Canal's "lavender lake" stigma once and for all.

Joshua S. Verleun is a staff attorney at Riverkeeper, Inc.

The Great School Debate


Gotham Gazette image by YH Huang
Has mayoral control of schools saved our classrooms? Or should Bloomberg stay out?

With the law establishing mayoral control of the New York City school system set to expire at the end of June, parents, educators and other concerned New Yorkers have widely varying opinions over the successes and failures of the current system and whether it should remain as is, be tweaked or totally rehauled. On May 11, Citizens Union Foundation, Gotham Gazette's publisher, along with the Baruch College School of Public Affairs, held a forum on the issue.

Moderated by Doug Muzzio, professor of public affairs at Baruch, it featured:

Ana Maria Archila, co-executive director, Make the Road NY

Rev. David Brawley, co-chair, East Brooklyn Congregations

Joel Klein, chancellor, New York City Department of Education

Monica Major, president, Community Education Council, District 11

Michael Mulgrew, chief operating officer, United Federation of Teachers

Joseph Viteritti, former executive director, Commission on School Governance

The following are edited comments excerpted from their discussion.

Who's In Charge?

"To me, the most essential feature of mayoral control is that the mayor chooses a majority of members of the school board. ... In a few places where they call it mayoral control, I wouldn't call it mayoral control. For example in Oakland, the mayor picks three members of a 10-person board. I don't think that's control. In Baltimore, mayors share that with the governor. I don't think that's control." -- Joseph Viteritti

"The question of governance is fundamentally whether the mayor will have the same authority over the school system that he or she has over safety, over health, over finances. The present structure is sound and I worry that, as we try to improve the system, we undermine it and create divided authority. The mayor has to be able to support a majority of the members [of the Panel for Education Policy] and they serve at his pleasure. No terms." -- Joel Klein

"The form of mayoral control we have in New York is the most extreme. You don't have a space for parents and students and stakeholders to participate in the debate." --Ana Marie Archila

"It's not a burden for a chancellor to have to make a persuasive case [to a board with a majority of mayoral appointees]. That's an opportunity to make your case." -- Viteritti

"We're New Yorkers. We like to debate. That's' what we do. In our proposal, we have 14 members on the [Panel on Educational Policy]. Every policy should have some debate. The mayor would only have to swing two votes. If there is an issue, isn't it better as a city if we have some debate?" -- Michael Mulgrew

"I am old enough to remember Mayor Giuliani and young enough to know I'll have kids in school when there will be mayors I don't like." --Archila

"We have got to be bold. A mayor may or may not be bold, but if he or she doesn't have the authority, thee is going to be special interest capture." -- Klein

The Bottom Line

"It's a not a question of how we hold the mayor accountable. The discussion should be how do we insure students who historically have fallen through the cracks do not continue to fall through the cracks." -- Archila

"If we had this debate under the old system there would be no room because everyone who made a paychecks on the backs of our children would want to be here." -- David Brawley

"Not a single person on the panel has said we want to go back to the old system. We want to move forward. Everyone here has the best interests of the children at heart. We are all trying to do the best thing for out children and the city as a whole." -- Mulgrew

A Place for Parents

"We need to make sure our public institutions can hear the public." -- Archila

"One of the things that the old board did well -- and there weren't many of them --- was force a public conversation." --Viteritti

"Parents come out to complain, and they're frustrated, Some don't have the resources to properly advocate for their children." -- Monica Major

"When you have parents, teachers and students working together, then you have a successful school. [At the hearings the UFT held,] parents in every neighborhoods no matter what the demographics said 'we feel shut out of the system'." -- Mulgrew

"People think trying to participate in the current system is not a good use of their time." -- Viteritti

"In the old days, you had the debate but no results." -- Brawley

"We're the only system that does a parent poll. A few people claim they speak to parents. I like to listen to all of them." -- Klein

We should make sure that when parents organize, they're not treated as a special interest." -- Archila

"I don't think parents are a special interest, but people kid themselves when they say they speak for parents." -- Klein

Looking at the Numbers

"This is the Mark Twain, lies, damns lies and statistics part of the program." -- Mulgrew

"To use [test scores] to evaluate a governance system is not a good idea." -- Viteritti

"In East New York, the percentage of student passing the state reading tests is up by 16 points. One reason that is happening is the chancellor is willing to make hard decisions." --Brawley

"Our students are closing in on the rest of the state. After a decade of stagnation in this city, we are making real change." -- Klein

"These grades [on the school report cards] do not match what is going on in the city. They are based on a metric you can't explain to parents." -- Major

An Outside Eye

"[Oversight by the Independent Budget Office is needed] to make sure we all have information about performance and to make sure the money goes where it really needs to go." -- Archila

"I'm confident about the data...and I'm happy to have an outside body investigate." -- Klein

To Tweak or to Tinker?

"Mayoral control creates a capacity for change that didn't exist before. I support a strong system of mayoral control, but it can also have checks and balances." -- Viteritti

"I hope the system remains as it is. Tweaking is one thing. Tinkering is another." -- Brawley

"What we hope happens is that New York City has a better system because it can always be better, We are talking about Albany here, so it would leave it up to anyone to tell me what is going to happen." -- Mulgrew

"The state legislature is trying to figure it out. I hope their debate is as robust as our conversation." -- Archila

"This is as robust a debate as can possibly happen." -- Klein



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