The groups, represented by the public interest law firm Earthjustice, are appealing a February ruling by the state Supreme Court, Albany County which upheld the watered-down cleanup standards issued by the state Department of Environmental Conservation.
Earthjustice is representing Sierra Club, New York Public Interest Research Group, Environmental Advocates of New York and Citizens' Environmental Coalition in the appeal.
"The law is clear. Brownfield sites should be cleaned up to a level that protects the air in our homes and offices, protects our lakes and rivers and protects the fish and wildlife of our state," said Earthjustice attorney Keri Powell, who is handling the case. "This isn't happening under the current rules. Before we hand out any more tax credits to developers we need the state to set cleanup standards that make sure harmful toxins are cleaned up from these sites and New Yorkers are protected."
Citing examples of public health risks posed at contaminated sites in upstate communities of Endicott and Hopewell Junction as well as at New York City public schools in Harlem, the Bronx and Ozone Park, Queens, the groups argue in briefs filed today that the Brownfield Cleanup Program has failed to live up to the 2003 law state legislators adopted.
"New York's Brownfield cleanup program offers the most generous tax credits in the nation, and yet our cleanup standards lag far behind many other states," said Laura Haight, senior environmental associate with the New York Public Interest Research Group (NYPIRG). "If the DEC had followed the letter and the intent of the brownfield law, we would not have had to file this lawsuit. The bottom line is that the state's cleanup regulations allow inadequate site cleanups that will not be safe for our health and our environment."
The Brownfield Cleanup Program, which 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, awards developers who remediate and redevelop sites with tax credits and liability relief. But the groups argue that the cleanup standards adopted by the DEC fail to protect public health and the environment, as required by law.
"The cleanup regulations developed by the Department of Environmental Conservation do not meet the brownfield law's standards for protecting human health and the environment, and it is time for the Paterson administration to rectify this problem," said Barbara Warren, Executive Director of Citizens' Environmental Coalition. "If the agency does not improve their unsafe cleanup standards, we will be subsidizing dirty cleanups with taxpayer money."
The groups have already claimed a partial victory in their campaign to improve the state brownfield program: In response to the groups' initial lawsuit, state Supreme Court Judge Christopher Cahill ordered the DEC in February 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.
Serious flaws in the program remain, however, which the groups outlined in appellate briefs filed today.
- 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, saying that pollution affecting indoor air, surface water and ecological resources can be addressed by a piecemeal combination of remedial techniques like air and water filters.
- 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.
- 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.
"Without testing and analysis of past clean-ups we do not know if we have successfully protected human health, drinking water, or wild life," says Susan Lawrence of Sierra Club Atlantic Chapter. "Without an evaluation of the effectiveness of clean-ups to date, there is no assurance that we are providing the public adequate protection from toxic exposures."
Read the brief (PDF)