The groups, represented by the public interest law firm Earthjustice, are appealing a February ruling by the state Supreme Court which upheld the watered-down cleanup standards issued by the state Department of Environmental Conservation.
"There are still troubling gaps between the DEC regulations and the law. We intend to close these gaps once and for all," said Earthjustice attorney Keri Powell. "We want to make sure that the sites in this program are properly cleaned up and will protect the people living, working, and learning in the homes, offices and schools being built on top of these brownfields."
Earthjustice is representing Sierra Club, New York Public Interest Research Group, Environmental Advocates of New York and Citizens' Environmental Coalition in the appeal.
Once hailed as landmark environmental legislation, the Brownfield Cleanup Program was intended to encourage the cleanup and redevelopment of the thousands of boarded-up gas stations, decaying factories and other abandoned sites across the state. But the DEC ignored the directive of the State Legislature and issued site cleanup standards that fail to protect public health and the environment.
In his February 26 ruling, state Supreme Court Judge Christopher Cahill handed environmental groups a partial victory when he ordered the DEC to eliminate a provision allowing weaker cleanup standards for properties in polluted neighborhoods. The DEC had previously required that such sites be left only as clean as the surrounding area, instead of being held to stricter standards designed to protect human health.
But other serious flaws in the regulations remain:
- In the 2003 law, the State Legislature required that sites be cleaned to a level that protects indoor air, surface water, and fish and other aquatic resources. The DEC has refused to follow this mandate.
"Nothing in the judge's decision changes our position that the brownfield cleanup standards fail to protect public health and the environment as the law requires," said Laura Haight, senior environmental associate with the New York Public Interest Research Group (NYPIRG). "The brownfield program is supposed to clean up sites, not leave them permanently polluted and unsafe."
- The law also required 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. Again, the DEC has refused.
"This is too important for the future of New York State to let slip," said Joseph A. Gardella Jr., Toxics Chair of the Sierra Club Atlantic Chapter's Conservation Committee and professor of Chemistry at SUNY Buffalo. "Too many brownfield cleanups near too many neighborhoods, especially poor neighborhoods, would be affected. The environmental justice issues are too compelling to let this matter drop."
- Finally, 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.
"New York's exclusion of brownfields contaminated by off-site sources cannot be reconciled with state statute," said David Gahl, Policy Director, Environmental Advocates of New York. "Regardless of the source of contamination, state statute is clear -- every contaminated site should be eligible for remediation. New Yorkers do not benefit from excluding these brownfields from the cleanup program, as thousands of contaminated sites are left dirty and undeveloped."
Read the lawsuit (PDF)