February 22, 2006

Center for Health and Environmental Justice
Citizens’ Environmental Coalition
Environmental Advocates of New York
New York Public Interest Research Group
Sierra Club

Environmentalists Call on DEC to Fix Draft Brownfield Cleanup Regulations: Proposed Standards Don’t Protect Health & Environment

(Albany) A coalition of state and national environmental groups today delivered a blistering critique of the state’s proposed draft regulations for cleaning up contaminated sites in New York. They charged that the draft regulations violate both the spirit and the letter of the state’s landmark Superfund-Brownfield Law of 2003, and called on the DEC to fix them.

Chief among their concerns is that the proposed cleanup program will leave too much contamination behind on sites, threatening public health, ecological resources, and drinking water supplies. There are thousands of contaminated sites across the state that could be affected.

The N.Y.S. Department of Environmental Conservation (DEC) released the draft cleanup regulations in November 2005, more than a year behind the law’s schedule. The draft regulations cover the state’s new Brownfield program, the Superfund toxic waste program, and the 1996 Bond Act Environmental Restoration Program. The DEC will be holding three public hearings in March to gather public comment on the cleanup standards (see below).

The groups also called on the DEC to extend the public comment period by 120 days in order to allow citizens and community groups adequate time to review and weigh in on the proposed regulations.

Critique of the Draft Regulations

Soil cleanup standards do not protect children, water, fish and wildlife:
The proposed soil cleanup standards for specific contaminants don’t meet the law’s requirements to protect public health, including children and sensitive populations, as well as indoor air, groundwater, surface water, and fish and wildlife. For example, the DEC would allow extremely high levels of lead to remain in soil at “cleaned” sites, from 400 parts per million (ppm) for most unrestricted cleanups to up to 3900 parts per million for industrial cleanups. These amounts dramatically exceeds rural background levels of lead, which are between 4 and 63 ppm, and are far higher than any New England state’s industrial cleanup level. DEC currently sets the soil cleanup objective for Superfund sites as “background” for lead, which ranges between 4 ppm in rural areas to 500 ppm in high-traffic urban areas. At a time when scientists find health affects at lower and lower levels of lead exposure, DEC should be more conservative, not less.

Cleanups should protect public health AND the environment, not either/or:
The DEC proposes a “mix-and-match” approach in which cleanups would protect either public health or ecological resources or groundwater, instead of all three as the law requires. According to DEC staff, in most cases the agency will not apply the more stringent soil cleanup standards designed to protect ecological resources, even if the site is right next to a river or stream. Thus, many “cleaned up” sites could have residual contamination that can pollute groundwater and harm fish and wildlife – in violation of the law.

The DEC relies too heavily on paving over contamination rather than cleaning it up:
The brownfield law creates four clean-up “tracks” for contaminated brownfield sites, based on the site’s future use, with a preference for permanent site cleanups. But the draft regulations weaken the preference for permanent cleanups and rely heavily on engineering and institutional controls, such as paving over contamination and restricting the use of groundwater. Serious questions exist about the reliability and viability of many of these approaches.

People living near contaminated sites are not adequately protected:
The draft regulations should clarify the responsibilities of both the site owner and the DEC with regard to testing for and cleaning up contamination going off-site. In particular, the regulations fail to adequately protect adjacent properties from drinking water contamination and toxic vapor intrusion in basements.

The Superfund toxic waste cleanup program is weakened:
The draft regulations delete the sections of the Superfund program that provide for meaningful public participation in cleanup decisions. The new regulations also would allow land use to be considered when selecting the cleanup remedy for Superfund sites, in violation of the Superfund law, which says the goal is to restore sites “to pre-disposal conditions” whenever possible.

“Nearly every community in New York State is affected by contaminated sites,” said Bobbi Chase Wilding, associate director at Citizens’ Environmental Coalition. “Inadequate cleanups that leave too much contamination on site can result in health and environmental problems for people living near the site and those who live or work on the site in the future. DEC must go back and redo their standards to make sure they protect all of us – especially those most vulnerable.”

“These regulations will set the standard for environmental cleanups in New York for years to come,” said Laura Haight, NYPIRG’s senior environmental associate. “It’s important that they get it right, rather than leave a toxic legacy of inadequate site cleanups across the state.”

“The DEC relies too heavily on barriers to exposure, like paving over contaminated soil, rather than cleaning it up permanently,” said Tim Sweeney, Environmental Advocate’s Regulatory Watch Director. “Because controls often fail, the regulations must reflect the statute’s requirement that cleanup plans include an evaluation of the reliability, viability and effectiveness of the chosen control method.”

“Sierra Club and its allies strongly support the goal of the state brownfields law – to promote the cleanup and reuse of sites that threaten and blight too many our neighborhoods,” said John Stouffer, Legislative Director for Sierra Club – Atlantic Chapter. “But when the cost of a mistake is literally life or death, we need to be certain that the sites will be safe for the families or employees who will live or work there. We need to be certain that left over contamination will not continue to spread toxics into our drinking water and homes. The proposed regulations will allow some sites to remain heavily contaminated relying on asphalt or even lawns to cover and contain highly contaminated soils. We don’t think New Yorkers will be comfortable with such a narrow margin of safety,” said Stouffer.

“Community groups across the country are watching New York as it develops the brownfield cleanup program, because the state law requires strong, safe soil standards that protect children and groundwater,” said Lois Gibbs, Executive Director of the national Center for Health, Environment & Justice, and a community leader at Niagara Fall’s Love Canal toxic site. “The state’s legal directive was to establish truly protective cleanup standards and encourage permanent cleanups. Yet, Governor Pataki and his Departments of Environmental Conservation and Health have made a mockery of the law with shockingly weak standards that do not safeguard children, workers, groundwater, fish and wildlife. The state agencies need to go back to the drawing board and repair the regulations.”

Public Hearings Scheduled for March

The groups are urging citizens to come to the DEC public hearings and speak out in support of safe and protective cleanups.

The DEC will be holding three public hearings next month on the draft regulations: March 6 (NYC); March 9 (Rochester), and March 15 (Albany). The DEC will also accept written comments until March 27, 2006. Concerned citizens can contact any of the above listed groups for a packet of fact sheets analyzing the proposed regulations