Developers: Gowanus to Build or Not?

On Dec. 12, Pete Grannis, commissioner of the state’s Department of Environmental Conservation, penned a letter to the Federal Environmental Protection Agency with a request: take over cleanup of Brooklyn’s Gowanus Canal, using the federal Superfund program.

The canal is heavily polluted, and while some cleanup work is under way, the state requested that the federal government step in, using its litigation-heavy program that assigns fault and makes those responsible for the pollution pay for its cleanup.

Now, four months later, the E.P.A. has agreed and added the canal to its list of national priorities. Given the ultimate goal—remediation of a dirty canal, paid for by the polluters—one might think the action would be widely lauded.

Not quite.

The proposed designation has ignited opposition: The Bloomberg administration, caught off guard with the action, has a number of concerns and is scrambling for alternatives; developers around the canal who hoped to turn their industrial lots into condo towers are incensed; and community groups who have urged the redevelopment of the area are fighting the proposed designation. Meanwhile, the Paterson administration stands by its request, and local elected officials, including U.S. Representative Nydia Velazquez and

Councilman David Yassky, have voiced support for the move.

The controversy centers around the nature of the Superfund program. The Bloomberg administration and developers contend it would drag out the cleanup for years, potentially stymieing both economic development and, ironically, environmental cleanup in the process.

Created in the aftermath of the polluted Love Canal cleanup in upstate New York, the Superfund program aims to legally assign blame for a polluted site, and then, typically, recover the costs of cleanup from the respective polluter. The highly litigious process is a lengthy one, as first blame must be assigned, followed by lawsuits, which often result in another set of lawsuits to get to the responsible polluters.

In the case of Gowanus, the process could be highly complex. Given that the canal borders on dozens of properties that could have contributed to the pollution, the list of potentially responsible landlords and polluters is expected to be a lengthy one. Over its nearly 150 years, the canal has played home to a wide array of dirty industrial uses.

Perhaps the largest polluters were a set of manufactured gas plants (MGPs), which have left a coal tar sediment in the canal, and the city itself, which has a sewer system that continues to dump sewage in the canal when its treatment plants get overwhelmed by heavy rain. Due to this infrastructural system, the city would likely be named as responsible for some of the pollution.

This long cast of characters involved in the pollution is the very reason the D.E.C. wants to involve the Superfund program. The agency contends that the efforts to clean up the canal site-by-site are not enough, and the federal government is best suited to take over the effort for the whole 1.5-mile waterway.

“It became apparent that it made no sense to remediate the canal in isolated areas near the MGP sites when there was contamination present throughout the canal,” a department spokesman, Yancey Roy, said in an email. “A comprehensive approach to the remediation of the canal is required, one that will not only cut off all upland sources to the canal but also will include an overall remedy to the canal itself.”

For developers, this approach is frustrating. The city is rezoning the lots around the northern sections of the canal, and developers had hoped to build a new residential neighborhood, bordering what was to be a quaint stream lined by parkland and bike paths.

But given the way the Superfund program assigns blame, developers worry that they could be designated as potentially responsible, and would therefore be unable to get financing to build. Further, the stigma of a Superfund designation, they worry, would drive away potential buyers, pushing down the value of the area. No development means that the polluted sites they were going to build on will not get cleaned up, the developers argue.

“Until the uncertainty associated with the proposed Superfund listing shakes out, people are going to be reluctant to get into the mix,” said David Yudelson, an attorney with Sive Paget & Riesel, which represents some of the landowners around the canal. “Everyone’s in favor of cleaning up the Gowanus—but there are more quick and effective ways to do it than through Superfund.”

Toll Brothers, which is planning a 460-apartment project, is launching a public assault on the issue, putting the lobbying firm Geto & De Milly to work with attorneys at the law firm Kramer Levin.

The Bloomberg administration seems to sympathize with the developers—it is leading the area’s rezoning, after all—and is pulling for an alternative that is still led by the E.P.A., but that does not involve the lengthy litigation process endemic to Superfund.

City officials say they were caught off guard by the designation, as they were not informed of the D.E.C.’s December request.

The proposal now goes through a 60-day public comment period, and the E.P.A. then responds to comments and makes a determination. Far more often than not, sites that make it this far are ultimately designated as Superfund sites.

Developers: Gowanus to Build or Not?