Gowanus Canal Community Advisory Group Meeting
Tuesday, April 26, 2016
Mary Star of the Sea Senior Apartments, 41 1st Street
Introductions and CAG Updates
Many CAG members attended the April 25 public meeting on the tank-siting agreement. The comments are on record but tonight’s discussion will not be on record. The formal transcript will take at least two weeks to complete but the CAG will be putting a full unedited video of the meeting online in the next few days.
There is a documentary film team present tonight. They have been filming a long-term project called Gowanus Current, documenting changes in the neighborhood and the lives of people who live and work here and occasionally attend and film CAG meetings.
Two resolutions tonight and procedural issues.
Outreach Committee Requests
The Committee presented four procedural items for CAG discussion and agreement. The CAG approved all four items:
- Reactivate and adopt the CAG Google Group. This will help to consolidate group correspondence. This will be a closed group consisting of the CAG membership, not the full CAG email list. We can also explore establishing committee sub-groups.
- Implement and use the @GowanusCAG Twitter account. This will be used to share information posted to the CAG website, such as announcing meetings and approved materials, just factual info, not editorial or third-party content.
- Include link to EPA’s Gowanus Facebook page on the CAG homepage. The Facebook page is managed by Natalie Loney. The link will include a CAG disclaimer.
- Include a link to the CAG YouTube page on CAG homepage. Again with a disclaimer. This provides a place to post useful videos such as we are doing with the 4/25 public meeting.
The March 29, 2016 Minutes were approved.
Project Updates (Walter Mugdan, Director, Emergency and Remedial Response Division, EPA)
Walter Mugdan provided an overview of the PowerPoint presentation provided at the April 25 public meeting and then opened the floor to questions from the CAG.
Key points from the presentation included:
- EPA was asked the question last night: is the EPA allowed to use administrative orders and when, and are they required to use judicial instruments? What kinds of actions are covered under this designation? The EPA prefers to use consensual orders, when possible, versus unilateral administrative orders (UAOs)
- With regard to Institutional controls: people will still be advised not to eat fish from the waterways
- The New York State Department of Environmental Conservation (NYSDEC) oversees the cleanup and produced the record of decision (ROD) on the three manufactured gas plant (MGP) sites
- Combined sewer overflow (CSO) discharges include polycyclic aromatic hydrocarbon (PAHs), contaminants that need to be mitigated
- The proposed retention tanks will help to mitigate CSO contamination during storm events by storing overflow water until it can be safely routed to treatment facilities
- EPA has finalized its decision for the siting of the 4- and 8-million-gallon tanks to be installed along the Gowanus Canal as part of the overall cleanup program (tanks will be underground, with headhouse above ground to help control odors)
- Before sewage overflows into the Canal, it will go into retention tanks and settle – if the tank is full, cleaner excess water will be released; when a rain event is over, tank water gets pumped back into pipes and routed to the sewage treatment plant
- EPA has not been part of conversations with Alloy regarding property donations
- EPA has accepted the City’s head of Canal location with conditions
- Superfund authorizes removal and remedial actions: the type of enforcement depends on the category (removal allows unilateral or consensual administrative order; remedial allows judicial administrative order but only if consensual agreement is not reached)
- EPA will propose that all PRPs enter a consensual order with the agency, which is why these actions need to be characterized as removal, not remedial – the City is not actually required to build tanks but EPA can exercise UAO if necessary
- The public comment period is open until May 31; an extension was requested last night and EPA is required to extend comment period if requested, by 15 days
- The City will use its own contractors to remove contaminated soil within the tank footprint, which has not been finalized; National Grid will do the same outside the footprint
- National Grid will still be responsible for the cost of disposing of coal tar within the footprint but the City will manage the process (National Grid must remove the material first, then the City can proceed with building the tanks)
- If the City does not meet the specified schedule and milestones, they will have to pivot to the Park location, which is why EPA had the City work on remedial designs for both the Park and head of Canal locations simultaneously (removal work is required at both locations)
- EPA suggested that the City discuss work with the community to enhance the temporary pool and plan the permanent pool
- Remedial work (e.g. maintenance dredging) must be done in the future so it is not part of the current settlement
- The 2013 Superfund ROD set a precedent: it was the first ROD in the country to include CSO controls as part of a remedy
- The ROD can be challenged as arbitrary and capricious only when EPA enforces violations but EPA prefers to rely on consensual instruments and avoid delays.
Questions and Answer
CAG Member: Do you foresee anything in any other area of remediation where the City could cause delays (e.g. Hamilton Avenue Bridge)? Why and where does the City need a staging area?
Mugdan: If the delay is not for reasons beyond the City’s control, then penalties are available for specified violations; the bridge would not be a valid reason. The City identified a parcel occupied by a movie studio as a logical staging area for either tank location. The City would close off Degraw Street for the period of construction from Nevins Street to the Canal for ease of access to the staging area. The City would have to acquire the staging area and remove the studio but the coal tar would be removed from under the property. It was not necessary to use eminent domain to avoid staging equipment in the green part of the park, and other parcels are available.
CAG Member: You mentioned yesterday that there is a 100-foot setback from the canal. Can you explain the design of the tank?
Mugdan: This has not been finalized, but National Grid will be obliged to build a cutoff wall to hold back the coal tar from seeping into the canal. EPA believes the best way to stabilize the wall is to use tieback rods. How long do they have to be and how far back do they have to go? National Grid said 80 feet but DEP feels 100 feet would be prudent. Once the order goes into effect, EPA wants to work with the City and National Grid engineers to get more detailed information on the setbacks and footprint.
CAG Member: We would like to request, if possible, to have one more presentation before the comment period ends, to discuss the northern part of the Canal so that families and public housing residents who live in the vicinity can comment.
Mugdan: If we can make the date work in a reasonable amount of time before May 31 (EPA will not extend comment period). There are three possible outcomes from the public comment period: 1) EPA moves forward as planned, 2) EPA needs to make changes and asks the City to renegotiate, revise and sign, 3) the City does not accept any changes.
CAG Member: What if there’s no deal? Is the EPA responsible for designing and building the tank at the salt lot?
Mugdan: Then we still have the UAO and might have to go to court over fundamental disagreements. The City is required to design the tanks to EPA’s satisfaction. A Consent order would only replace the UAO for RH-034.
CAG Member: Are stipulated penalties covered in the appendix and schedule? Does your agreement say that if penalties don’t work, EPA can take over the project and bill the City? Is there anything in writing that would commit the City to retaining the portion of the head of Canal location not used for the tank footprint, for public use? The City could build a fence around that area. Can this become part of a legal document?
Mugdan: It’s in Section 20, paragraph 88. EPA can take over the project and bill the City. There is no commitment but no developer will want to build commercial or residential on that site. When we enter consent decree negotiation, EPA may require the City to make that commitment, but all parties agree to this idea.
CAG Member: You required a design for the tank – couldn’t you require open space around it?
Mugdan: I will take that comment into consideration.
CAG Member: The ROD proposed the CSO tanks because they were the most cost-effective but projected a cost for both at 78 million. How do you justify the added cost to the City and the burden for DEP when the Park site would have been cheaper? We’re not being equitable and other people with sewage problems around the City will not get any money.
Mugdan: The City argued that EPA’s cost estimates were far too low but EPA retained them in the ROD. The City decided they want to build tanks at the head of Canal location. It is not EPA’s place to dissuade them if they choose to spend more money. We don’t necessarily agree with the City’s estimate of the cost.
CAG Member: What is the longest and shortest amount of time that we might have a capped Canal with no retention tank in place? It’s up to you to decide whether it needs to be re-dredged but how long would it take to make that decision? When during the 4-year time frame, would the park and pool be dug up? What if when the digging begins, and there is a legal problem? Why would the City argue that the head of Canal location costs more than the park if they chose that site?
Mugdan: It could be anywhere from 2 to 8 years. We’d have to make the decision very soon after the start of construction. The replacement work could be done in 2019-2020 and the park disruption would begin. The City’s concern was with the number of years that the park would be closed before it could reopen – they have an obligation to do a contingency design. There comes a point of no return, when the process has to go forward. This is the most complicated administrative order and cleanup we’ve been engaged in. The City can’t say EPA sent them to the head of Canal location and EPA’s estimate was off base.
CAG Member: How much longer will this process take at the head of Canal location as opposed to the park location in your estimate? When will we find out when the tanks have to be built? Will we have to wait until the 2019 timeframe when design is complete?
Mugdan: I’ve said earlier that the delay occasioned by this is somewhere around 1.5 to 3 years, but there are many unknowns including construction schedule. When this order goes into effect, the next step is to sit down with National Grid and say what we would like them to agree to. Once that’s in place, we start negotiating the consent decree we hope to enter with all 35 PRPs. Historically, these take some time with the Justice Department. We might have one decree with all the parties or multiple decrees with groups of parties, and/or unilateral consent order, which might take 12 months. The City is estimating that tank construction will take 5-6 years but we think it might be less. The City’s estimates are in the draft preliminary design reports.
CAG Member: Originally, this whole project was estimated to take 10-12 years. With all the changes, how long could the entire project take?
Mugdan: I can’t give you a meaningful time frame for the entire Canal project. Canal work will proceed from the head to the middle and lower portions, and could take 10 years. What we learn from the head of Canal work will inform dredging for the middle and lower sections so we could gain efficiencies. EPA has yet to discuss the sequencing of the two tanks. If you look around the country, it takes 5 years to design and build comparable facilities. The City has given different estimates e.g. 3.5 years for design, 4.5 years for construction. We feel the head house is overdesigned and we think it could be folded into a shorter schedule – design shouldn’t take more than 2 years.
CAG Member: The cutoff wall is a bulkhead so you’re putting something non-environmental where there are environmental possibilities for a wall. Can you force the City to build something environmental? Is the interim pool part of the decision and will it still be required if you pivot? What are the dimensions of the footprint and head house?
Mugdan: National Grid is building the cutoff wall, not the City. Design is being discussed right now and it involves sheet metal. We could put something in the consent order. The pool is not part of this agreement but it will be part of the consent agreement we hope to enter into with the City and National Grid. The City has an obligation to coordinate with National Grid when they start digging up the pool, which will trigger the requirement for an interim pool, even if we pivot to park site. The depth matters because the shorter the length of the footprint, the deeper the tank has to go. The City’s estimates include dimensions for both the footprint and the head house.
CAG Member: You believe that the original tank siting was cheaper, faster and better and EPA says discussions have not achieved an agreement between the City and Alloy. Are you asking us to know before we know if eminent domain is or is not a certainty? With this expensive additional time, the chemical contamination continues to affect the community and new people who will move to the Canal.
Mugdan: It would be easier if we knew in advance whether the City would have to occupy so much of the head of Canal location as to preclude Alloy from having meaningful development on that parcel. Whether or not the City has to exercise eminent domain might not be known for 1-2 years but we have to take certain actions to allow the City to get to those decision points. EPA has to allow the City to build at the head of Canal location in order for it to go through the ULURP process. The work of dredging the Canal could start in 2018 after we do a pilot this year. In the Canal is a reservoir of the deadliest toxins, where we are measuring coal tar in parts per hundred (normally measured at parts per million). This has to be removed, together with the coal tar still coming into the Canal, which is why the MGPs have to be controlled. Our concern is that the continuing level of PAHs coming in through the CSOs could be 50-60 parts per million compared to the parts per hundred that we’re talking about in the mud. The ongoing contamination is much lower than the contamination in the Canal right now. Once the Canal is clean, the CSO contamination is of significant concern to us, which is why we required the City to build containment tanks. After we’ve cleaned the Canal, the post-cleanup level has to be up to 20 parts per million. This has to be maintained and might take time.
CAG Member: Regarding the second tank in the Salt Lot: is there any eminent domain procedure with that site? Is there an agreement between EPA and DEP on that site? Does the current agreement require that DEP start the design?
Mugdan: This agreement deals only with RH-034. DEP is under orders to design the 4 million gallon tank right now and we expect disagreement. The City is considering whether they’d have to acquire some additional portion of the property at the Salt Lot – their current plan involves a larger footprint.
CAG Member: For the MGP site, how many more parcels will get cleaned up versus the other proposal?
Mugdan: There are 8 parcels subject to the Fulton MGP decision. Wherever the tank goes, National Grid will have to dig up the coal tar. EPA wants this work to be done now, not when City gets around to building a new pool in 15 years (development normally triggers the removal). Even if there were no tank, some development would occur on that site, triggering the National Grid obligation. EPA is only triggering where the tank goes and what happens if the tank doesn’t go into the park.
CAG Member: If the Salt Lot land is owned by DSNY, is it obligated to follow anything DEP does?
Mugdan: The City has the obligation to put in the tank.
CAG Member: Will the dredging for the 2 to 8 years more maintenance and any penalties be paid from water rates? Regarding the dispute resolution, what could be reopened and is there room for the CAG? Can the deadline (2020) be disputed?
City: All water and sanitation expenses are covered through water rates.
Mugdan: There are limitations on what is subject to dispute resolution. On the larger, more consequential decisions, the City could bring a dispute, including some deadlines. If there is an issue, it will be brought to the CAG but EPA will make the decision.
CAG Member: By acquiring property through eminent domain, the City now has to do cleanup at a site it didn’t previously own.
Mugdan: Buying the property does not increase the City’s retroactive liability for contamination on that site. The order says who has to do the work. The question is how that should be divided – National Grid probably has cleanup responsibility. The City would be responsible for cleanup but could sue other PRPs to recoup costs.
CAG Member: How much will acquisition costs add to the expense of the tanks?
Mugdan: There’s a 99-year lease on the head of Canal site, and an annual cost but EPA doesn’t have the answer.
Dan Wiley: Is EPA weighing in on the fixed bridge that DOT is working on?
Mugdan: Yes, we will be meeting with DOT and we’ve started the conversations.
As the meeting ran late over this conversation, discussion of pending resolutions was deferred until the May meeting.
CAG Members Present (24)
John McGettrick (alternate Stehpon Kondaks)
David Meade (alternate Justin Collins)
EPA, Staff, and Presenters
Doug Sarno, Facilitator
Walter Mugdan, EPA
Christos Tsiamis, EPA
Natalie Loney, EPA