Contaminated New York Brownfields Will Remain Dirty Under DEC Program

Today activists are challenging in court a weak brownfield cleanup program adopted last December by the New York State Department of Environmental Conservation that does not guarantee that contaminated sites will be cleaned to levels that protect our health and environment. The new rules fail to live up to the high standard required by the New York legislature when it passed the landmark Brownfields Cleanup Program in 2003.

Earthjustice is representing New York Public Interest Research Group (NYPIRG), Environmental Advocates of New York, Sierra Club and Citizens’ Environmental Coalition in the lawsuit filed today in the New York State Supreme Court. "The rules fall far short of meeting the high standards the legislature envisioned when it adopted this law," said Earthjustice attorney Keri Powell.

Across New York, thousands of brownfields, including boarded-up gas stations, decaying factories, and other abandoned and likely contaminated properties, burden the communities in which they are located. The DEC rules, adopted two weeks before former Governor Pataki left office, fail to ensure that properties will be cleaned up to a level sufficient to protect against future contamination of surface water, indoor air, and ecological resources such as fish and other aquatic wildlife, an explicit provision of the 2003 law.

"These brownfield cleanup regulations were finalized just weeks before Governor Pataki left office," said Laura Haight, Senior Environmental Associate of NYPIRG. "Governor Spitzer has the potential to really change the way our state cleans up and restores these toxic sites.  We hope the new Administration will embrace this opportunity to ‘clean up’ the regulations and ensure that they meet the law’s high standards for protecting public health and the environment."

The DEC program also automatically excludes from the cleanup program many contaminated sites located in lower income and neighborhoods of color in New York City. Many of these properties are contaminated by "historic fill" — industrial waste once commonly used as fill material. Likewise, the regulations authorize less extensive cleanups for properties located in areas burdened by pervasive contamination; in other words, where the DEC determines that "background" soil contamination on or around a property exceeds levels thought to be protective of public health and the environment. Thus, for example, a community struggling with ubiquitous lead contamination cannot expect as thorough cleanups as a community where soil is otherwise relatively clean.

"It makes no sense to exclude any contaminated sites from the program," said John Stouffer, Legislative Director for the Sierra Club. "Under the current program, homes and businesses could be built on sites contaminated with historic fill, or other waste that originates offsite with no DEC oversight and no warning for people who live or work there. Hopefully the courts and the Spitzer administration will see the wisdom of protecting New Yorkers with a brownfields program that addresses all hazardous sites."

Brownfields are a blight on many communities across New York. These abandoned and underused sites pose significant health threats to residents and are a fiscal burden on many communities. These dirty sites remain unproductive in terms of job creation, revenue generation, or tax contribution. State environmental and public health groups have identified cleaning up brownfields — of which there are more than 6,500 in new York City alone — as a top priority for the state.

"For New York’s Brownfield Cleanup Program to live up to its billing as a landmark piece of legislation, the state’s Department of Environmental Conservation must address the concerns raised in this lawsuit," said Tim Sweeney, Regulatory Watch Program Director for Environmental Advocates of New York. "The changes we seek will ensure increased protection of human health and the environment, and also result in more brownfield sites — particularly in New York City — being deemed eligible for the cleanup program."