Gowanus community activists, state lawmaker criticize toxic site cleanup, NYDEC defends plans, by Max White

Local activists and the state environmental agency are at odds over how to clean up a toxic site in Gowanus that the agency determined poses a significant threat to public health or the environment.

The New York State Department of Environmental Conservation has placed the site at 459 Smith St., formerly the location of a manufactured gas plant, into the New York State Brownfield Cleanup program (BCP), but community activists say it should instead be placed in the New York State Superfund program (SSF).

Both programs have the same cleanup standards and they both use the same soil cleanup objectives. However, the SSF is an enforcement program, while the BCP is a voluntary program that remediates toxic sites and can offer tax credit incentives to businesses.

The utility company National Grid is primarily overseeing the site’s cleanup, as it bought the company that formerly owned the site’s manufactured gas plant. DEC makes the final determination on the appropriate cleanup at a significant threat site.

Remediation plans for the site are now under public review as redevelopment projects loom.

A “legal missclassification”
State Assemblywoman Jo Anne Simon, who represents parts of Gowanus as part of the 52nd State Assembly district, sent a letter to the DEC in August, urging the agency to place the site in a state Superfund program, calling its current classification a “simple, but meaningfully problematic case of legal misclassification” and saying the “Brownfields program has no teeth.”

“I have heard from many constituents that they are concerned that this site has been incorrectly placed in the New York State Brownfield Cleanup program, when it should, in their view, have been placed in the New York State Superfund program,” Simon said in the letter. “I share these concerns.”

Simon added that the BCP is intended for “far less polluted sites,” such as a former gas station or dry cleaner, and not for cleaning up former gas manufacturing plants, which she said are “among the dirtiest and most toxic types of properties.”

The regulatory standards for the SSF, Simon said, are “significantly more restrictive” than agreements seen in BCP redevelopments and if “a party to a Brownfield agreement fails to live up to the bargain the public is virtually out of luck. DEC wouldn’t be empowered to issue orders or seek compliance in the courts. It would, however, have those powers under the Superfund law.”

Additionally, Voice of Gowanus, a community group that advocates for the environmental safety, said in a statement that the “community is deeply concerned about how the state plans to conduct remediation.”

The DEC told the Red Hook Star Revue, in response to local concerns about the cleanup, that the state “has a proven track record of successfully investigating and cleaning up many contaminated sites across New York City” through the Brownfield program.

“Both State Superfund and Brownfield Cleanup Program use the same soil cleanup objectives set forth in State regulations, and cleanups under both programs eliminate or mitigate threats posed by contamination to fully ensure that public health and the environment are protected,” the agency said in a statement. “DEC will continue to work closely with State and federal partners and the community to advance the cleanups underway in the Gowanus Canal area.”

Maureen Koetz, a lawyer who has consulted with Voice of Gowanus took issue with that.

“The problem is not whether they use cleanup standards. The problem is whether they enforce the cleanup standards,” Koetz said. “Brownfield is essentially a voluntary program on the part of the owner of the contaminated property.”

The site’s future is uncertain. It’s up to the DEC whether the site is part of the BCP or the SSF. The timeline of when DEC will finalize the remediation plans is unclear.

If the agency maintains the site as part of the BCP, activists’ path to ensuring the site is instead classified as an SSF is muddy. Litigation is one avenue, but getting standing could be difficult and legal proceedings would be expensive.

For now, community activists are left to wait and see what DEC determines. Jack Riccobono, a member of Voice of Gowanus and longtime resident worries about the precedent that could be set if DEC prevails.

“DEC is trying to set a precedent in letting this one parcel into the Brownfield program and allowing the known polluter, which is National Grid, to get away with not cleaning up the site,” Riccobono said.