EPA, electeds left in the dark on construction at toxic Gowanus Brownfield site as developer seeks to avoid 421-a deadline

public place, the gowanus brownfield site, from above
The EPA and local elected officials have said they were left in the dark as construction began on a Brownfield cleanup site adjacent to the Gowanus Canal and the Public Place site.
File photo by Amalia Arms

A group of elected officials are raising the alarm about potentially-hazardous construction on a toxic Brownfield cleanup site beside the Gowanus Canal.

On Friday, May 19, Assemblymember Jo Anne Simon’s office started receiving phone calls about ongoing, unexpected pile driving at a privately-owned parcel Brownfield site called 459 Smith Street, formerly part of the larger Public Place former manufactured gas plant site, also known as the Citizens former MPG site.

The pile driving was loud and disruptive, causing vibrations that shook the neighborhood. More importantly, the work was filling the air with the smell of coal tar, a toxic, carcinogenic sludge left in the ground by the old gas plant, according to a letter Simon and her colleagues U.S. Rep. Nydia Velázquez, state Sen. Jabari Brisport, and New York City councilmembers Shahana Hanif and Lincoln Restler sent to city and state officials on Friday afternoon.

public place gowanus brownfield site
The infamous Public Place Brownfield site in Gowanus is adjacent to the 459 Smith Street site, which is owned independently but has similar levels of contamination. Photo by Kirstyn Brendlen

While Simon was working in Albany, some of her staffers headed to the site from their office on Smith Street, the pol told Brooklyn Paper. 

“They spoke to workers there … who didn’t know it was an environmentally toxic site,” Simon said.

Staffers started reaching out to the agencies responsible for the site — the federal Environmental Protection Agency, who are overseeing the entire Gowanus Canal Superfund cleanup, the state’s Department of Environmental Conservation, who are responsible for the Brownfield cleanup, and the city’s Department of Buildings and Department of Environmental Protection. 

The DOB sent an inspector to the site — but responses from other agencies came slowly, or not at all, says the letter, which was sent to commissioners at the DEC, DOB and DEP. Pile driving continued until Tuesday.

EPA left in the dark

The elected officials weren’t the only ones worried about the construction. At a meeting of the Gowanus Canal Community Advisory Committee on Tuesday, Christos Tsiamis, the remedial project manager of the federal Gowanus Superfund cleanup, said he hadn’t known about the work until community members and elected officials alerted him and his colleagues at the Environmental Protection agency.

“That was a big, capital B-I-G, surprise to me,” Tsiamis said at the meeting. “It was the first that I had heard of it, last Friday. I had concerns.”

Tsiamis said he was worried because the site is contaminated and abuts the polluted canal — but also because the site is being used as a staging area for the Superfund cleanup, and the EPA is storing monitoring and filtration equipment that could have been damaged by the vibrations on the site.

“We were really upset by the fact that we were not notified,” he said. “I sent an email to the owner’s legal representative outlining my concerns and requesting certain information.”

As he waited for a response, which came on Friday evening, Tsiamis sent another email, this one asking the owner to temporarily stop the construction until the EPA could review the information they requested.

On Monday May 23, Tsiamis found out that his request had been disregarded, and pile-driving had continued through the weekend, including on Sunday. According to Friday’s letter, the work finally stopped on Tuesday May 24.

The EPA could do no more than request that the work was stopped, Tsiamis said, because the agency doesn’t have direct authority over that site, which is being cleaned up by National Grid, one of the “Potentially Responsible Parties” identified as responsible for funding the cleanup, and New York State.

The project manager was further surprised to learn that the construction had been in the works for months. 

According to documents filed on the city’s Zoning Application Portal, the owner of the lot, a Foreign Limited Partnership called HR DC Smith Street Owner, eventually plans to erect three mixed-use buildings on the site.

City regulations allowed for permits to be issued to the site — and any site within a Waterfront Area — as long as an environmental remediation plan had been submitted to DEC and a site plan had been submitted to the city’s Department of City Planning.

With the documents submitted to the correct parties, DCP gave DOB permission to grant the permits in March. Earlier this month, the developer was given a permit to lay 100 square feet of foundation — noted as a “421a pile installation.”

The permits were granted after DOB reviewed applications from the developers’ design professional, a department spokesperson said. The applications fully complied with the city’s code and zoning regulations and included the necessary approval from the agencies who oversee environmental remediation.

gowanus canal brownfield site
The Gowanus Superfund site is surrounded by heavily-contaminated Brownfield sites, including the 459 Smith Street site, where piles were driven without warning last weekend. File photo by Kirstyn Brendlen

To be eligible for tax breaks under New York’s controversial 421a program, residential developers must have started construction by June 15, when the incentive is set to expire.

“I’m sure you’re aware of the 421a program, which is the purpose that these piles are going in,” said DEC representative Kiera Thompson at Tuesday’s meeting. “They have until June 15 to place the piles in the sites to qualify for tax credits.”

As of Friday evening, DOB had also granted an after-hours variance allowing the installation of concrete footings “including excavation, forming, tying rebar and pouring concrete” on the site on two consecutive Sundays — May 29 and June 5. Calls to Empire Management, who are listed on permit documents as the owner of the site and were CC’d on the letter, were not picked up or returned on Friday evening.

“The EPA, I would say, has been extraordinarily communicative and honest with community members,” Simon said. “As a result, the community has particular faith in the EPA.”

But the city’s initial reluctance to designate the Gowanus Canal a Superfund site and the ongoing delays in constructing two much-needed sewage retention tanks have made Simon and the community wary, she said, and the DEC leaves much to be desired communication-wise.

“That’s why we’re sending this letter,” she said. “If you’re going to put in building permits, we want to know about it. We want to know what work is going to be done. There has to be communication with the community, there has to be communication with elected officials.”

A DEC representative told Brooklyn Paper that the agency had acknowledged a “change in use” letter from the developer, who planned to install a “limited number of piles in certain locations,” and that the work has since been completed. The department is not responsible for denying or issuing permits, the spox said, and directed further questions to the city.

A DOB spokesperson said the department had received the letter on Friday — as well as a separate letter from councilmember Shahana Hanif — and will be issuing a response to the electeds.

Simon and Velázquez, along with the EPA and community members, called the Gowanus rezoning into question last year, citing out-of-date and inaccurate rainwater modeling used by the city as they assessed the environmental impact of the cleanup.

“The Gowanus rezoning was approved contingent upon a list of conditions the community expected to be fulfilled, especially with regard to the integrity of the Superfund remedy to ensure the health and safety of existing and future residents,” the letter reads. “Failure to communicate about this recent pile driving does not bode well for the public trust which needs to be repaired.”

Health and safety concerns at the Brownfield site

Simon said she hoped to see construction stopped temporarily until elected officials and the EPA can confirm that the work is up to standards and safe for both the fragile environment and nearby residents.

The state calls the 459 Smith Street Brownfield a “significant threat to human health and the environment,” and it is listed as an active, ongoing cleanup — as is the adjacent Public Place Brownfield. 

A supplemental investigation carried out at 459 Smith Street last year found unacceptable levels of dangerous semivolatile organic compounds in the soil at the site and confirmed that any future buildings should include soil-vapor intrusion barriers, which would prevent those chemicals from rising into buildings in their gaseous forms. 

An April 8 update posted to the Citizens MPG website says that National Grid has completed remediation at the site as required by the DEC, though the state’s websites do not reflect that.

In February, the EPA said that the state’s planned cleanup at Public Place might not be up to the federal agency’s standards, and urged the department to take another look at their plans and make changes where necessary.

“EPA has jurisdiction on things relating to the Superfund site,” Tsiamis said on Tuesday. “The Gowanus Superfund site is not just between the two banks of the canal. It goes wherever the contamination exists and potentially affects the canal.”

While the EPA might not officially have had the authority to stop construction at the Smith Street brownfield, he continued, he felt they should have been able to enforce that order because of the site’s proximity to the canal and the fact that the site was contaminated by the same companies and chemicals that trashed the canal.

“If there are similar cases, we are going to try to establish some procedures, so at least we have advanced notice of this type of development work,” he said.

Simon hoped to reassure her constituents that she and her colleagues are “fighting for transparency and accountability at this site,” she said. “And all the local elected officials are working together to ensure that.”

Update Sunday, May 30, 2022, 5:49pm: This story has been updated to include comment from the city’s Department of Buildings.