New York Being Sued Over Cleanup Standards

New York Being Sued Over Cleanup Standards



January 2008  - Four environmental groups 
seeking stronger cleanup standards for brownfield properties are suing the 
state of 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.

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. 

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