State Brownfields Practices Challenged in New York

Their lawsuit challenges the state's Brownfield Cleanup Program that is intended to encourage the cleanup and redevelopment of the thousands of boarded-up gas stations, decaying factories and other abandoned brownfield sites across the state.

Brownfields sites are those that cannot be developed because of toxic contamination. The contamination is typically not severe enough to warrant a more robust cleanup under the Superfund law, but poses health and environmental risks if development occurs without some remediation.

A state Supreme Court judge heard oral arguments December 21 by the public interest law firm Earthjustice challenging the state's Brownfield Cleanup Program.

Earthjustice is representing Sierra Club, New York Public Interest Research Group, Environmental Advocates of New York and Citizens' Environmental Coalition in the case.

"Before we give out tax credits and liability exemptions to developers, before we allow homes and daycare centers and nursing homes to be built on these sites, we must make sure they are cleaned up to a level that protects human health," said Earthjustice attorney Keri Powell. "That's what we're asking for in this lawsuit."

"Under Governor [George] Pataki's administration, New York established unsafe, second-rate soil cleanup standards that are not protective of children and drinking water," said Anne Rabe, board member of Citizens' Environmental Coalition.

HealthNow, the parent company of BlueCross BlueShield of Western New York, is building on a Buffalo brownfield site. (Photo courtesy New York DEC)

After 12 years in office Governor George Pataki was replaced in January by Governor Eliot Spitzer, the former attorney general of New York.

"Surprisingly, Governor [Eliot] Spitzer and the Departments of Environmental Conservation and Health have refused to address this outstanding flaw in the brownfield program. It is time for the state to fix this problem and stop subsidizing dirty cleanups," said Rabe.

The environmental groups contend the state Department of Environmental Conservation, DEC, adopted weaker cleanup standards for properties in polluted neighborhoods, saying that sites only had to meet "background" levels of pollution. Under this regulation, such sites would be left only as clean as the surrounding area instead of being held to stricter standards designed to protect human health.

In response to the lawsuit, the Spitzer administration conceded in November that the program's use of polluted "background" levels to limit site cleanups is illegal.

But the groups contend that other serious flaws remain in the way legislation is being applied in New York.

In 2003, a new brownfields law was adopted by the State Legislature. The 2003 law requires that sites be cleaned to a level that protects indoor air, surface water, and fish and other aquatic resources. But the groups argue that the DEC has refused to follow this mandate.

"All we are asking is that New York State's brownfields regulations be protective of public health and the environment, and reflect what the law requires," said Tim Sweeney, Regulatory Watch Program director with Environmental Advocates of New York. "The Department of Environmental Conservation has forced us to take them to court over concerns that are entirely reasonable and legitimate."

State lawmakers also asked the DEC to study the results of past cleanups to determine whether tougher cleanup standards could be achieved, especially for contaminants where there is insufficient data on health risk. The DEC has not done this.

Finally, the groups argue that the DEC "arbitrarily" excluded all properties polluted by an off-site source. This exclusion could leave countless sites ineligible, many of them in low-income communities with a legacy of toxic contamination where pollution can be coming from several sources.

"The brownfield cleanup issue is the first real test of the Spitzer administration's commitment to protecting public health, and so far, we've been disappointed in their response," said Laura Haight, senior environmental associate with the New York Public Interest Research Group.

Copyright Environment News Service (ENS) 2007. All rights reserved.