GOWANUS REPORT PODCAST TRANSCRIPT

Becky: Hello! Welcome to this podcast by the Office of Inspector General for the U.S. Environmental Protection Agency. My name is Becky Klingler, and joining me today is Auditor Rodney Rice, who was part of the OIG audit team that just published a report on the Gowanus Canal in New York City. Thanks for joining me today, Rodney! 

RODNEY: I am glad to have the opportunity to talk about this report, Becky.

BECKY: The OIG initiated this audit after a complaint about the Gowanus Canal was submitted to the OIG Hotline. What exactly was the complainant’s concern?

RODNEY: There were numerous parts to the complaint, and we looked into two aspects. One part of the complaint alleged that New York City failed to construct combined sewer overflow tanks – which going forward, I’ll abbreviate as CSO tanks – for the Gowanus Canal in a timely manner. The CSO tanks help collect any overflowing stormwater and wastewater and send it to a treatment plant. Without CSO tanks, untreated water is more likely to flow into the Gowanus Canal, and subsequently into the New York Harbor. The complaint also alleged that EPA failed to enforce the administrative orders that require the Gowanus Canal to have these tanks. These administrative orders were issued pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, which we refer to as CERCLA.

BECKY: And what exactly does an administrative order do?

RODNEY: There are different types of administrative orders. A unilateral administrative order is a directive issued by the EPA to require that an entity perform particular actions, while an administrative order on consent is a documented agreement issued by the EPA to formalize agreed-upon actions with another entity. But both types of administrative orders are enforceable, meaning that if the entity does not comply, the EPA can take action to enforce the orders, such as imposing civil and legal penalties. And because CERCLA authorizes the EPA to issue administrative orders when there is a – quote – imminent and substantial endangerment stemming from an actual or threatened release of a hazardous substance – unquote – the EPA was able to issue administrative orders for the Gowanus Canal CSO tank project when it felt the project was not sufficiently advancing to protect human health and the environment. 

BECKY: Are you saying that without the Gowanus Canal CSO tanks, there is an actual or threatened release of a hazardous substance into New York Harbor? 

RODNEY: Yes. Sediment in the canal contains high levels of more than a dozen contaminants, including polychlorinated biphenyls, commonly known as PCBs; polycyclic aromatic hydrocarbons, commonly known as PAHs; and heavy metals such as mercury, lead, and copper. PCBs and PAHs have been demonstrated to cause a variety of adverse health effects. In fact, the EPA has classified seven of the PAH compounds found in the Gowanus Canal as probable human carcinogens, or substances that cause cancer.

BECKY: With all of these contaminants, is there an effort to clean up the canal?

RODNEY: Yes, and that’s the genesis of the Gowanus Canal CSO tank project. In March 2010, the EPA placed the canal on the National Priorities List, which identifies contaminated sites across the country to be prioritized for further investigation and cleanup. And for each site on the National Priorities List, the EPA issues a Record of Decision that specifies which cleanup remedy will be used at the site. In the Gowanus Canal Record of Decision, which was issued in 2013, the remedy included, in part, the construction of two CSO tanks. 

BECKY: If there was a Record of Decision about the CSO tanks, why were administrative orders needed? 

RODNEY: Well, the EPA – in this case EPA Region 2 – is responsible for overseeing New York City’s implementation of the Gowanus Canal Record of Decision. But there were significant differences in how the EPA and New York City government regarded the scope, timing, and substance of the two CSO tanks, despite the Record of Decision. The EPA issued the first administrative order in 2014 – a unilateral administrative order – to propel the city to construct the two tanks in accordance with the Record of Decision. 

BECKY: You mentioned that this was the first administrative order issued. There was more than one?

RODNEY: Yes, there were two more. The EPA issued a second administrative order in 2016 – this one on consent – to update the requirements and location of one of the tanks, so that the city could build it, as the city requested, on privately owned parcels. This administrative order laid out a schedule for the city to acquire these parcels. Also, as part of the administrative order, to address the EPA’s concerns that the change in the location could extend the time and increase the cost of the project, New York City agreed to waive its rights to claim any excused delays and to challenge the CSO remedy. In other words, New York City was basically promising that the project would proceed on time and as planned.

BECKY: And what about the EPA’s third administrative order?

RODNEY: In 2021, the EPA issued another unilateral administrative order after noting that the CSO tank construction had been significantly delayed by the city because of noncompliance with the 2014 and 2016 administrative orders. While the 2014 unilateral administrative order had focused on the design of the CSO tanks, the 2021 unilateral administrative order specifically required the city to build and operate the two tanks and stipulated the deadlines for doing so. Estimated at approximately $1.1 billion, this was the largest dollar-value unilateral administrative order issued pursuant to the CERCLA in the EPA’s history.

BECKY: And did the administrative orders help New York City finish the project on time and in compliance with the requirements?

RODNEY: In a word, no. According to the original timeline estimate laid out in the Record of Decision, New York City should have completed the CSO tanks by about September 2022 if design work had started immediately after the Record of Decision was signed. The 2021 administrative order shifted that timeline, so that the two CSO tanks are now not expected to be completed until May 2028 and March 2029, respectively. That’s a delay of approximately six-and-a-half years. 

BECKY: What is the cause of this delay? 

RODNEY: Well, there are several contributing factors. One was that the original Record of Decision estimated that it would only take three years to complete the CSO tank design work, but New York City said that it was an underestimate, and a more realistic time frame was five years. Another reason is that New York City’s design for the tanks was more complicated and expensive than the Record of Decision assumed, and as I mentioned previously, the city decided to change the location of one of the tanks. Acquiring the private property for the new location took more than a year to complete. New York City also spent approximately two years designing a CSO tunnel, contrary to the Record of Decision remedy of the two CSO tanks. The EPA ultimately denied the tunnel approach, which meant the city had to revert to designing two CSO tanks. And finally, the private property that the city acquired featured historical buildings, which had to be preserved in accordance with the National Historic Preservation Act. The effort to salvage historical materials delayed the tank construction by two years.

BECKY: With so much back and forth about the design and the delays and the need for site preservation, the price of the project must have been affected, too. Was this the case?

RODNEY: Yes. The current project total is estimated to be more than $1 billion—an approximately 1,300 percent increase from the EPA’s original estimate of close to 78 million. And there may be even more delays due to the construction and other issues. The EPA estimates that the costs could increase by an additional $50 million due to the potential additional delays. Beyond the cost increases, the delays also mean that there is prolonged exposure to all the contaminants in the canal. 

BECKY: You mean people are still using the water in the canal?

RODNEY: Yes, the Gowanus Canal is regularly used for subsistence fishing, and so a primary exposure risk to humans comes from the ingestion of fish and crabs from the canal. People also swim and kayak in the canal. These potential human health impacts are magnified by the demographic and socioeconomic status of the surrounding Gowanus community, parts of which are classified as disadvantaged and having environmental justice concerns. 

BECKY: So going back to the complaint submitted to the EPA OIG Hotline, did the EPA ever step in to enforce the three administrative orders that it issued?

RODNEY: Well, it was apparent as early as 2016 that the city was noncompliant with the Gowanus Canal Record of Decision and the 2014 administrative order. But instead of enforcing the 2014 order, the EPA issued a 2016 administrative order on consent. And it wasn’t until it issued the 2021 administrative order that the EPA finally cited the city for being noncompliant with the previous orders. The city did respond to the 2021 administrative order with a Notice of Intent to Comply, but even in that letter, while the city committed to performing certain actions, it also maintained that it couldn’t comply with all the aspects of the order for various technical reasons. As of February 2024, the EPA still had not assessed penalties to the city for noncompliance with the administrative orders. However, EPA’s Region 2 office told us that the city’s current level of performance is highly satisfactory, and the city has attempted to identify ways to shorten the lengthy design and construction schedules for the two tanks.

BECKY: Before we wrap up, can you tell me what recommendations the OIG had for the EPA as a result of your team’s findings?

RODNEY: Sure. We recommended that the EPA closely monitor the construction progress and take immediate actions, up to and including enforcement actions as appropriate, if New York City misses any more milestones from the 2021 administrative order. For the benefit of the Gowanus community specifically and for the public in general, we also recommended that the EPA post these milestones on EPA’s website, along with the city’s progress toward these milestones, and any actions taken by the EPA to ensure the city stays on schedule. The Agency agreed with our report recommendations and provided corrective actions that meet the intent of the recommendations.

BECKY: Thank you so much, Rodney. To our listeners, we appreciate your time with us today. For more information on this report, which is titled Multiple Factors Contributed to the Delay in Constructing Combined Sewer Overflow Tanks at the Gowanus Canal Superfund Site in New York City, or to read other OIG reports, please visit our website at www dot epaoig dot gov.