By Sarah Kerr and Annie Nova
Filled with industrial and human waste, the Gowanus Canal was first dubbed a public nuisance in 1877.
Since then, it has only become filthier.
The almost two-mile long waterway snakes through three Brooklyn neighborhoods, posing an “unacceptable ecological and human health risk,” according to the Environmental Protection Agency, which declared it a national Superfund site in 2010.
But that long-awaited cleanup is launching just as the E.P.A. under Trump moves toward a more industry-friendly approach, according to former E.P.A. employees and local activists monitoring the massive project.
E.P.A. Administrator Scott Pruitt, a former Oklahoma attorney general who made a name for himself criticizing and suing the agency before he assumed the post, has vowed to take the E.P.A. “back-to-basics.” The Trump Administration would cut funding to the legal teams who prosecute polluters as well as reduce staff across the agency.
As a result, advocates fear, the parties that federal officials say are responsible for funding and planning the estimated half-billion dollar effort could be emboldened to dig in their heels and resist the cleanup at the Gowanus Canal.
“If they think they can delay because nothing bad is going to happen to them, they’re likely to do that,” said John Cruden, who served as deputy assistant attorney general for the Department of Justice’s Environment and Natural Resources Division under presidents Clinton and Bush, and then assistant attorney general under President Obama.
National Grid, the giant utility company, and the city of New York are tasked with leading the cleanup at the Gowanus Canal, and they have both shown some commitment to the remediation with regulators. But many of the other parties – around 30 polluters designated by E.P.A. as “potentially responsible parties,” or “P.R.P.s” – are balking, insisting that the mess is not their problem.
Daniel Riesel, a lawyer representing Kraft Foods, one of the companies that has been identified as a polluter by the federal agency, said it is being pursued because of its size, not for any past contamination it caused.
“If you want to recover money to build out your $600 million project, who would you sue? Mom and pop? Or a Fortune 500 company?” asked Riesel.
According to the E.P.A., local firms acquired by Kraft discharged toxins into the waterway over decades. But Riesel said his research shows that Kraft’s predecessors discharged only harmless substances into the canal. He said his client will “resist lawfully and legally if it comes to the courts.”
Kraft’s tough talk is echoed by other alleged polluters. The Chevron Corporation, the oil and gas giant also designated as a responsible party thanks to its acquisition of a local fuel company based near the canal, likewise denies culpability. Leah Casey, a spokeswoman for the company, said in an email that “extensive research” on the operations of that firm, the Pure Oil Company, has excluded it “as a liable party for the conditions at the Gowanus Canal Superfund.”
Con Edison, another utility company alleged to have contributed to the canal’s pollution, also contradicted the E.P.A.’s conclusion.
“No determination of liability or the extent of responsibility has been made at this time,” said Robert McGee, a company spokesman. “Con Edison had no operations on the Gowanus Canal and no direct discharges into the canal.”
Despite the polluter resistance at the canal, Walter Mugdan, who serves as regional director of the E.P.A.’s Superfund division for New York, said the agency doesn’t wait for all identified polluters to acknowledge their role for the work to commence. It only needs enough funds and participation for the cleanup to move forward.
“We’re aware that there are people who are uncomfortable with the way the process is going, or with the process itself,” Mugdan said, speaking about the identified polluters. “But the most important thing is there are two major potentially responsible parties who’re doing the actual work,” he said, referring to National Grid and the City of New York. And the design of the cleanup, he said, is also moving ahead smoothly so far.
But Marlene Donnelly, a local activist and member of the Gowanus community advisory group, said there have been problems with the leading polluters too. “They've been dragging their feet,” she said.
Jahan Wilcox, a spokesperson for the E.P.A., denied that Pruitt would be anything less than tough on polluters.
“Administrator Pruitt has said he will hold polluters accountable, which includes cleaning up Gowanus,” said Wilcox in an email.
The city left the canal in its putrid state for decades. When the E.P.A. began investigating the waterway, both former Mayor Michael Bloomberg and then-councilman Bill de Blasio insisted the city could clean the canal without federal leadership. Some critics claimed that the city didn’t want the “Superfund” designation in an area it hoped to develop.
In the end, the E.P.A. intervened and the Gowanus became a Superfund site in 2010. Now, as a polluter, the city is undertaking a lengthy and expensive route to fill its requirements at the site, which critics say is unnecessary and yet another way to drag out the process.
“It’s all about money, this is the city’s M.O. all the time,” said Judith Enck, who served as regional E.P.A. administrator for New York when the Gowanus Superfund was declared. “They try to slow-walk things, so they don’t have to pay as much money as quickly as is needed.”
The industrial slime and sewage runoff that helped pollute the Gowanus has long made the waterway a veritable gag line for New York City jokes. But after years of debate, the federal effort to clean it up began in earnest in 2013.
That year, the E.P.A. issued a so-called record of decision, a public document that lays out the cleanup plan for a Superfund site. But the actual cleanup is often largely determined by the polluters that the E.P.A. identifies, since they are deemed responsible for the project’s funding as well as the planning and implementation for how to remedy the site.
The E.P.A. is supposed to supervise the work and hold the polluters to account. Such legal enforcement is critical, former agency officials say, since without it, companies are unlikely to take the project seriously.
“Rarely does a polluter come forward and raise their hand, and say ‘Yes, this is my pollution’, and I’m going to pay a certain percentage’,” said Enck.
In September, The New York Times reported that Pruitt’s proposed fiscal year 2018 budget called for eliminating EPA’s portion of the funding for the environmental law division within the Department of Justice. That’s the unit, formerly headed by Cruden, that handles Superfund litigation on behalf of the E.P.A. when polluters refuse to comply.
Since the federal government has yet to pass a 2018 budget, instead relying on short-term funding deals, the division’s funding has not changed. But the administration’s newest draft budget released, on Feb. 12, would slash the E.P.A. by 23 percent.
Pruitt’s efforts send a clear signal about this administration’s priorities, said Justin Pidot, an associate professor at the University of Denver focused on environmental law. It’s hard to conclude anything other than that the intent is to “let companies off the hook,” Pidot said.
And the Trump administration may not even need to win all of its budget cuts.
Since Trump’s inauguration, over 700 employees have left the E.P.A. Only a small fraction have been replaced and morale within the agency is said to be low. “It isn’t just enough to have money, you have to have people who do oversight,” Cruden said.
In addition, during the first six months of the Trump Administration, the Justice Department collected on average 60 percent less in civil penalties from polluters than George W. Bush, Bill Clinton or Barack Obama did in the same period of their presidencies, according to a report by the Environmental Integrity Project.
Like Pruitt, many of the the agency’s new leaders also bring a distinctly different perspective toward the relationship between environmental regulation and industry. Last spring, Trump nominated lawyer Susan Bodine to be head of the E.P.A.’s Office of Enforcement and Compliance Assurance. Before joining the government, Bodine represented companies accused of Superfund pollution as a partner at law firm Barnes & Thornburg, which is headquartered in Indiana.
Katia Kelly, an activist who sits on the Gowanus Canal’s community advisory group, attended a meeting in April 2017 with residents and E.P.A. officials. She said the new political climate was already ushering in signs of further slowdown.
“Obviously the P.R.P.s are taking full advantage of the Trump administration's gutting of the E.P.A.,” Kelly wrote in her blog Pardon Me for Asking, after she’d heard at the meeting that the cleanup could take longer than previously expected. “The Gowanus community should be outraged by any possible delays in the cleanup of our toxic waterways and should voice its protest loudly and clearly.”
Still, Pruitt’s pro-business approach has not been universal when it comes to Superfunds. In January, a Washington Post article detailed how the secretary has pressed aggressive clean-up agendas at a number of toxic sites, including one near Houston after Hurricane Harvey.
But Enck said that the dramatic changes to the agency under the Trump administration could complicate the historic work at the Gowanus.
There is also a potentially sensitive political wrinkle at the Gowanus site: Numerous developers have scooped up the former industrial sites along the waterway in hopes of raising residential towers and new commercial spaces there. Among the speculators is Jared Kushner, whose family company bought a sprawling 3-acre lot near the canal.
The city is planning to rezone the area, a move likely to substantially increase the value of the property, in which the family remains a part-owner.
Development of the neighborhood doesn’t seem dependent on the Gowanus Canal being clean. A sleek 430-unit luxury development alongside the waterway opened in April 2016 and now is almost fully occupied. On a wall across the canal, someone wrote in graffiti: “Welcome to Venice jerko.”
And even in the best of times, toxic cleanups can follow a glacial pace. The agency has cleaned up only around 20 waterways since its birth in 1970, according to Cruden. That’s because cleaning a canal is incredibly complex and expensive, he said, requiring coordination among multiple levels of government and private industry, a full-scale push that may now be threatened.
“The moment when E.P.A. staff is being cut and Pruitt is trying not to pay for the lawyers at the D.O.J could really spell trouble for the Gowanus Canal,” Enck said.