Gowanus Canal CAG Meeting
Tuesday, March 28, 2017
Mary Star of the Sea Senior Apartments, 41 1st Street
Doug Sarno opened the meeting at 6:30 PM.
The February meeting summary was approved with no revisions.
Project Updates (Christos Tsiamis, EPA Project Manager)
- Fourth Street Basin – Last fall’s pilot involved debris removal, as part of larger pilot that will be complete with the dredging and capping of the portion of the basin next to Whole Foods; right now EPA has the 50% design for that portion of the pilot and is looking to complete it in the coming months. We anticipate being out in the basin and doing work in summer, depending on the schedule. The work will involve installing bulkheads to support the dredging, then dredging the basin, removing the material, and treating it on a barge at Public Place. Once the material is stabilized, it will be sent offsite, as described in the Record of Decision (ROD). Once we’re finished dredging, we will cap that portion of the basin, which will complete cleanup for that part of the Canal.
- The First Street Basin, located adjacent to the Powerhouse property, is filled in. The ROD calls for excavation and the basin will be restored to waterway once EPA is done. We are working with the city to finish the design in the coming months; the goal is to start construction by the end of the year or early next year.
- The Powerhouse property is not part of the Superfund site but does have a PCB problem. It’s being cleaned up under the NYS Brownfields program, but EPA wants the site cleaned to levels that won’t turn it into a source of recontamination of the Canal. We will keep the CAG posted.
- The design of the entire upper Canal cleanup (RTA) involves similar aspects to the Fourth Street Basin, but is more complicated because we need to stabilize the banks so that when the dredging happens, there’s no collapse. The properties are individually owned and every bulkhead reconstruction has to be done in co-operation with the property owners. In cases where the owners are not willing to do the work, EPA will coordinate with PRPs to make sure the design and construction will be on time for all the different bulkheads north of the Fourth Street Basin and the start of dredging, in late 2018.
- EPA goals are based on what we think is a reasonable allocation of time for engineering projects; the parties we work with have different schedules, which requires lots of discussion to reconcile.
- Bulkhead restoration and reconstruction involves many legal arrangements between EPA and the owners, and EPA and PRPs. Brian Carr (EPA attorney) will describe what kind of work is involved.
- To clarify information stated in DNAinfo and Brooklyn Paper articles, regarding EPA budgets: Superfund sites have “special accounts” where EPA puts money they’re able to collect through settlements with responsible parties. EPA had a $3-4M settlement with a PRP in Red Hook, which paid for a pilot (initial stabilization) study at the Seventh Street Basin, which then jumpstarted the design. This fund also pays part of the salaries for the team that manages this work. At this point that special account is depleted. Responsible parties doing the work (NYC and National Grid) are paying their contractors directly. However, EPA requires them to do the design in accordance with the ROD, so we have a vested interest in overseeing it. There are lots of technical disagreements, which require the expertise of a technical team (including EPA contractor CH2M Hill). Right now, the Gowanus Superfund has enough money to go through April but Christos will not have enough money to retain this team beyond that (he will still be the project manager). This means it will take six months to go through the drawings and documentation for the design, which will slow down the project significantly. Fieldwork will require oversight (for changes that occur onsite) and will take longer than 1-1/2 years. There is no extra money locked in any accounts – EPA has made a request to headquarters for more funds, but has not yet received a response.
Questions and Answers
CAG Member: Is there anything individual citizens can do to ameliorate the situation?
Dan Wiley: It’s appropriations time – I can get people contacts to support not cutting the budget by 33% for EPA. There are sign-on letters and we want to hear from you.
CAG Member: It would be good to get this information out to the full CAG.
Project Updates (Brian Carr, EPA Attorney)
- We issued unilateral orders to the responsible parties because they didn’t meet the deadlines, so they owe us $15M with interest. We’re hoping to get various funds back in the coming six months to a year that will go into the special account. In the interim, we’re not in a good funding position and also have a lot of projects at this point. We’re dealing with the Fourth Street Basin, the Head of Canal, the CSO tank issues, negotiating access with private owners and other issues.
- 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.
Questions and Answers
CAG Member: Do the PRPs have a deadline to kick in their share of the funding for Superfund?
EPA: We work back from when we need the work to start (i.e. the dredge date) and calculate when the agreement needs to be done. We can issue a UAO and get that done instantly but it won’t accelerate the process because a federal consent order needs a few months to accommodate public comment and the judge’s ruling. We may start work under the UAO, before the judgment takes effect.
CAG Member: Is the funding for Christos’s team federal, or coming from settlements with PRPs? Do PRPs just pay for engineering and remediation?
EPA: PRPs pay their own engineers. Under the consent order we have with the City, we bill for our time and our contractors’ time. The major work so far has been done in the Canal under the UAO but there is no collection mechanism, so we haven’t yet recovered the money. Our salaries come from a combination of special accounts and discretionary funding. In order to proceed for the next six months, we need to hear from headquarters.
CAG Member: $10,000 per linear foot sounds very expensive for bulkheads. Is this a special type of bulkhead?
EPA: It costs that to individually design a 150-foot stretch of bulkhead, then get contractors and materials and go out and install that, plus the pilings they’re using are extra deep to support the dredging, and depending on the property they may be sealed bulkheads, to keep stuff from getting into the Canal. In addition, the design is different for every one of these properties. We may have parties work together to do bulkheads which may bring down costs to $2,000 per linear foot. The company doing the bulkheads had problems initially and had to redo the tiebacks, but as they go on the cost may go down. It also depends where in the Canal you are, the work is cheaper at the head of the Canal than the bottom of the Canal.
CAG Member: How much did you ask for the special account from EPA?
EPA: When we ask for funds from headquarters, that’s Superfund money, which is apportioned among the different Superfund sites. We asked for $400,000 to $500,000 to fund us for the next six to eight months. The current federal budget runs out April 28 (under the current continuing resolution), which makes it hard to make long-term plans. If there is a new continuing resolution to fund the federal government at last year’s level, then we can continue through the end of the fiscal year, which is September 30. The other option that has been discussed is that the Republicans can issue an omnibus bill to cut domestic programs and increase military spending.
CAG Member: Can you borrow against your receivables? Do you have an update on the Fifth Street Basin?
EPA: No, the federal government doesn’t work like that. We are doing work in the Fifth Street Basin – we’ve collected and reviewed data but haven’t discussed it with the responsible parties – we can present at the April meeting. I’ve asked the City, which is doing the design of the tanks (proceeding on schedule), to come and make a presentation on the status of their work at the April meeting. I will let the CAG know.
CAG Member: Is there any provision being made for means of egress, like a ladder for kayakers and canoers in the Canal, as part of bulkhead design?
EPA: No, these are private property owners. Our criteria for bulkheads are that they are strong enough to withstand dredging and to stop any contamination, and do not encroach more than two feet into Canal water.
CAG Member: Based on the estimates you provided, do you expect the project will be held back a year? Two years?
EPA: I’m optimistic, and hope to hear from headquarters in the next two weeks.
CAG Member: If someone wanted to donate half a million dollars or if there were a Gowanus foundation, is there a pathway for you to receive that money?
EPA: I don’t believe that’s possible because there’s a law called the Anti-Deficiency Act which says agencies can’t receive supplemental funding from people. If Congress doesn’t want you to spend money on something, you can’t go around Congress. There are very limited ways to get around this, mostly by settling with private parties and putting money into a special account. It’s a cleanup project but also an infrastructure project because we’re building two huge tanks. That’s what I hope they’ll look at and we won’t have to do this again.
CAG Member: What is the status with the City on the issue of the proposed tank location? What’s the deadline, 2020? What if this gets delayed, is there an extension?
EPA: This was the agreement. The City is working at the same time on two different designs – one next to the Canal and one at Thomas Greene Park. There’s also one in the middle – they’re working on three designs actually. They have three more years, until April 2020, and there’s no extension.
CAG Member: Is there a legal funding obligation we can hold EPA to or is the ROD indefinite? Can we sue EPA as a community?
EPA: Funding and implementation are two different things. It may take a decade to allocate funding to a project before we start work. There is no timeline for implementation. You can’t sue EPA but there are other mechanisms to bring attention to an issue.
CAG Member: Is the ROD not a legal document?
EPA: It is, but it’s weak without enforcement.
CAG Member: Is the City going ahead with acquiring properties on Nevins Street through eminent domain?
EPA: They are negotiating but pursuing both alternatives so they can be ready.
Natural Resources Damage Assessment (NRDA) Trustees (Kenneth Finkelstein, National Oceanic and Atmospheric Administration (NOAA))
- The Office of General Counsel files the case because this is a lawsuit; the Assessment Restoration Division does the technical work, which means they come up with restoration dollars or a list of projects to compensate the public for loss of resources; we work with the public and the co-trustees to come up with projects.
- The State Governor, Tribes, Secretaries of Federal Departments, and Foreign governments (under certain circumstances) can all be trustees; the Department of Defense can be both a trustee and a PRP.
- The Trustees are not a response organization but coordinate with response agencies such as EPA and the Coast Guard.
- Our assessments don’t use risk, but actual injuries, defined as measurable adverse changes, which may be hard to prove so NRDA scientists look at the molecular level. The goal is to return resources that were there previously or provide compensation to the public for lost access; after EPA cleanup, a restored site may not provide 100% function, and NRDA factors that into the public resource loss calculation.
- In the process to determine the appropriate compensation amount and the type of restoration needed, the preferred calculation is the cost of implementing restoration. NRDA will accept money from a PRP, but we prefer restoration for public use (called “making the public whole”).
- In the early stage of an event such as an oil spill, NRDA assessment may overlap with response.
- NRDA filed the Gowanus case, provided a notice of intent, and met once with PRPs, but we are nowhere near settlement; the NRDA Gowanus assessment is done and available to the public.
- We measure success by EPA and Coast Guard cleanup but this does not, in itself, compensate the public; the response (EPA) endpoint is cleanup while the NRDA endpoint is restoration (if it’s not feasible to clean up, that doesn’t mean there’s no injury).
- Integrated response and restoration demonstrates the importance of developing a technical position.
- NRDA divided Gowanus into remedial design and remedial action phases.
- NRDA found the following injuries; nesting/breeding areas, sediment stabilization, water quality, direct human uses and passive use
- Three types of restoration choices: primary, compensatory, emergency
- Public involvement is required in the restoration plan
- Restoration may happen offsite
- NRDA is independent and complementary to response; aims to work with PRPs to formulate a restoration plan.
Questions and Answers
CAG Member: How far back do you look for impacts?
NRDA: 1980, when the Superfund law was passed.
CAG Member: People have tried to put oyster beds in the Canal in the last 20 years and they all died. Is that an injury?
NRDA: No, because it was done with the knowledge that the Canal was polluted. If the oysters died because of PAHs, that would indicate that oysters are not there. We prefer to have some anecdotal evidence that says in the 19th century there were lots of oysters, or a more recent study. Then you can argue oysters are an injured species that the public deserves to be compensated for.
CAG Member: We’ve taken in many stray cats from the area who have many tumors and odd growths. How would you find proof for these injuries?
NRDA: Stray cats would be hard to prioritize – there has to be some value. We’re looking at impacts to fish and wildlife (public trust resources), and neither the EPA nor the NRDA has authority over domestic pets.
CAG Member: The 2006 Hudson River Estuary study shows a seven-minute tidal exchange with the Gowanus Canal and Lower Harbor, which means pollution is ending up downward. Would an estuary perspective be considered in the evaluation of Gowanus (to put money here and not Jamaica Bay instead)?
NRDA: Yes, that’s possible. Our preference is to do restoration close to the site of the injury.
CAG Member: How can we ensure that money for our resources does not end up in Jamaica Bay?
NRDA: What we need from you are restoration projects that can be done here and not somewhere else.
CAG Member: We want to talk about this at the Land Use and Water Quality Committee meetings. What restorations are possible along the Gowanus Canal? We also want to call your attention to the rezoning happening here.
NRDA: We’ll solicit projects from you. We understand that the zoning can preclude restoration.
CAG Member: Are we doing this too early in terms of remediation?
NRDA: I know what the proposed plan is and our restoration will be based on that proposed plan. In the next year, we’re going to be coordinating with the EPA where this intersects. We have no settlement with the PRPs – it’s nice of you to start thinking about restoration but there’s no guarantee that there will be any.
CAG Member: Who is the responsible party you spoke with?
NRDA: National Grid – but it’s a group of PRPs.
NRDA (Anne Secord, U.S. Fish and Wildlife Service)
- NRDA completed a pre-assessment screen of Gowanus in 2014; we found injuries to be significant and chose to proceed with a damage assessment.
- The contaminants of concern are PAHs in surface and sub-surface sediments (looking back to 1980); NRDA has good databases; fish impacts (lost habitats, etc.) will also be addressed.
Questions and Answers
CAG Member: Wetlands in turning basins – will they be part of mitigation banking? Will someone get to destroy a wetland somewhere else if they build one here?
EPA: What we’re doing now, with the opening of the First Street Basin, that’s a response to what the community has asked for; it has nothing to do with the trustees.
CAG Member: Should there be restoration projects in the Canal, will they come once the entire Canal is cleaned or RTA-1 is cleaned? Does that settlement happen at the same time as you reach the remedial phase?
EPA: The Trustees do not come in until there is a settlement. We’re going to try to bring in the Trustees so that they settle with the PRPs at the same time that we do.
CAG Member: What can the community do to move the settlement forward?
EPA: Nothing. The PRPs know that the longer they take, the higher the settlement cost so they want to settle sooner rather than later.
U.S. Army Corps of Engineers (Lisa Baron)
- The availability notice for the Hudson Raritan Estuary (HRE) was handed out in February
- USACE is working with Trustees after remediation takes place to do more restoration
- The HRE is a restoration program for entire NY-NJ harbor; the report released last month was a recommendation for the first group of restoration sites including six different feasibility studies dating back to 1996
- USACE re-released version 1 (2009) of the HRE Restoration Plain in 2016
- Looked at detailed designs for 33 projects – including two within vicinity of Gowanus (Flushing Creek and Bush Terminal, recommended for oyster reefs)
- Tentatively Selected Plan by Planning Region (Jamaica Bay is one of the larger areas of restoration potential)
- The sponsors are DEP and DEC (USACE generally doesn’t work with federal sponsors)
- The Gowanus Feasibility Study was conducted in 2002, turned over to EPA after Superfund listing (EPA judged it to be impractical because contamination was so high and the City (DEP) was interested in cleaning up the Canal at the time); USACE advanced restoration as idea, but has a policy of avoiding recontamination.
Questions and Answers
CAG Member: I understand that USACE is charged with ecosystems restoration so there’s still a federal mandate that you do it in the Gowanus.
USACE: It is one of our missions, but we have to follow the process in terms of cleanup/restoration. Wetlands is one of our largest projects – we need a project, a local sponsor and appropriations to move forward. It would be considered a new federal financial decision to move that Gowanus project forward.
Dan Wiley: The work USACE did actually put us further in the process to get the right remedy for the Gowanus, but it only moves as fast as we can appropriate the funds. For years, we didn’t get an EIS, which would have gotten us federal authorization and funding to proceed. Now that the real cleanup is happening with EPA, the question is how do we get USACE in the backside to inform the design so that it’s possible to have some restoration projects.
NRDA: And how does EPA design the remedy so there is some restoration. You’re building bulkheads – is there another way?
EPA: No. All the lands except for Public Place are privately owned – EPA does not have enforcement authority with regard to the bulkheads. Being sensitive to the community’s desires, we’ve asked on an individual basis when we restore bulkheads if owners would consider soft plants and the answer was a flat no. We cannot force a person to do that now. Bulkheads are a question of structural stability – there are cases where we have to prevent contamination from coming in. In the design, we had leeway with the basins and First Street Basin in particular so we’re limiting the width and we’re offering a shelf. Several years ago, we went to the city’s Salt Lot and the Fifth Street Basin with the Gowanus Conservancy to discuss possibilities – they are limited.
CAG Member: NYS is redoing its bulkhead permitting process now for soft bulkheads. What if we as a community petition private landowners for some benefits to apply for soft bulkheads? Is that something you could work with? Maybe the soft bulkhead will have a lower cost and that might motivate people to do it?
EPA: We work with NYS for bulkheads and you can petition owners but the issue is we’ve also made that request (to the Powerhouse) and the answer was no. The community also wants Gowanus cleaned up within a certain timeframe – the sooner we put in the bulkheads, the faster we start the cleanup. For example, at Whole Foods we’re designing bulkheads for structural support, but it’s their design with our requirements.
NRDA: If you have a PRP that has shoreline you’re thinking of bulkheading – if they’re interested in talking with Trustees to resolve their NRDA reliability, they can do it with a soft bulkhead.
EPA: None of the property owners are PRPs.
CAG Member: If you want ideas, we could do this at the Committee level and invite you to discuss it with us. There are probably solutions that haven’t been considered, for example, public lands like street ends and the Canal.
EPA: When I learned about the Sponge Park, I liked it and wrote a letter of endorsement and it’s been built. Now we’re working with the City and we’re going to evaluate how effective the Park has been. If the city wants to pursue this idea, then we can work with them, but there’s not that much public land.
NRDA: A PRP could potentially buy property from the owners for soft bulkhead.
EPA: None of that can happen until there is a settlement.
CAG Member: Last month we talked about getting an extended comment period done for this program. Did we get the extension and aren’t we supposed to be talking about writing a resolution?
Doug: Yes, we’ll get to that.
CAG Member: Are storm surge and climate change addressed in the design?
EPA: We modeled these effects but we don’t require someone to put a six-foot bulkhead above ground level. The city is looking at this holistically and they’re examining the idea of building gates at the Canal.
USACE: We are going to need a formal request for extension of the public comment period. This report is complicated so I’m assuming you’re going to get 30 days to submit your comments – we want your letters of support. What’s important is that this report move forward and get approved by the Army Corps – this is the future of restoration and federal funding for opportunities within the harbor. We’d like to get involved with looking at restoration opportunities in the Gowanus, working with the EPA and the NRDA Trustees.
Dan Wiley: There are 33 priority projects – why isn’t Gowanus one of them?
USACE: When we had to decide which of the 296 sites would move forward, I talked to the sponsors who would construct the projects with us. Once we turned the project over to EPA, it was waiting to move forward with that remedy and that’s why it was no longer considered part of the restoration plan until the conclusion of the remedy.
The meeting ran late and committee reports were brief.
The meeting adjourned at 9:10 p.m.
CAG Members Present
Justin Collins (Southwest Brooklyn Industrial Development Corporation alternate for David Meade)
Stephen Kondaks (Red Hook Civic Association alternate for John McGettrick)
Chrissy Remein (Riverkeeper alternate for Sean Dixon)
Sue Wolfe (Friends of Thomas Green Park alternate for Sabine Arnowsky)
EPA, Staff and Presenters
Doug Sarno, Facilitator
Brian Carr, EPA
Natalie Loney, EPA
Christos Tsiamis, EPA
Ken Finkelstein, National Oceanic and Atmospheric Administration
Anne Secord, U.S. Fish and Wildlife Service
Lisa Baron, U.S. Army Corps of Engineers