Once hailed as landmark environmental legislation for the state, New York's Brownfield Cleanup Program was intended to encourage the cleanup and redevelopment of thousands of contaminated sites throughout the state.
But in the final days of the Pataki administration, the Department of Environmental Conservation implemented watered-down regulations that fail to protect public health and the environment, ignoring the directives set forth by the State Legislature when it approved the program in 2003.
Among other controversial changes, the DEC adopted weaker cleanup standards for properties in polluted neighborhoods, saying that sites only had to meet "background" levels of pollution, instead of the stricter standards designed to protect human health.
"Enacting weaker standards for communities burdened by polluting industries is not only unfair, it's illegal," said Earthjustice attorney Keri Powell. "Under these rules, low income neighborhoods struggling with a legacy of contamination would not receive the same level of protection as other communities."
In March, Earthjustice filed a lawsuit against the state, representing New York Public Interest Research Group (NYPIRG), Environmental Advocates of New York, Sierra Club and Citizens' Environmental Coalition, to challenge the weak regulations.
In response to the lawsuit, the Spitzer administration has conceded that the program's use of polluted "background" levels to limit site cleanups is illegal, and has promised to revise rules authorizing less extensive cleanups for areas burdened by pervasive contamination.
"Governor Spitzer and Commissioner Grannis have yet to show that they care about protecting public health at brownfield sites," said Laura Haight, senior environmental associate with the New York Public Interest Research Group (NYPIRG). "We should not have had to sue the Spitzer administration to make these changes."
Other weak provisions remain in place, failing to ensure that properties will be cleaned up to a level sufficient to protect against future contamination of surface water, indoor air, and fish and aquatic resources, an explicit provision of the 2003 law.
"It's time for the Spitzer administration to demand that the latest and best science and engineering be implemented to protect public health," said Joseph A. Gardella Jr., Toxics Chair of the Sierra Club Atlantic Chapter's Conservation Committee and professor of Chemistry at SUNY Buffalo. "There are ways to move forward on brownfield cleanups without compromising the public's health. We hope to convince senior leadership in the Spitzer administration to look hard at re-examining these indefensible standards."
The legal action against the state is ongoing, with Earthjustice filing briefs today for upcoming oral arguments, scheduled for December 21.
"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, 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."
"Under Governor 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. "Surprisingly, Governor 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."