Hazmat Storage Near NYC Waterways Endangers Communities

By Nicole Acevedo and Brett Dahlberg

December 29, 2017

This asphalt company by the Newtown Creek is one of the dozens of businesses found to have violated the Community Right-to-Know Act, a 1980's law that enforces safe toxic chemical storage, more than once. Photo by Brett Dahlberg.

Lee la versión en español aquí.


New York City’s 520 miles of shoreline hold some of the most polluted sites in the city. Dozens of industrial plants along the coast store toxic chemicals close to tightly packed residential neighborhoods in areas the federal government says are prone to flooding.

There are laws on the books to keep those chemicals safe, but a New York City News Service investigation shows the city’s enforcement efforts are not keeping pace with the risks. The stakes are rising as climate change lifts sea levels and intensifies storms.

Concern about industrial pollution in New York City’s waterways deepened after Hurricane Sandy five years ago. Back then, the city promised to asses the damage and find ways to keep businesses afloat while also tightening regulations on the use of toxic chemicals. But what the city said in the aftermath of the storm bears little resemblance to its practices and policies today:

  • The bulk of hazardous chemicals reported to the city are still stored along flood-prone waterfront areas.
  • A review of 311 records from the last seven years shows that calls about spilled or abandoned chemicals are still concentrated in these neighborhoods.
  • The city never comprehensively studied the health impacts of post-Sandy contamination.
  • A law designed to ensure that the public had access to information about where chemicals are stored is largely ineffectual today.
  • Business owners are in the dark about what rules they’re supposed to follow. A city board designed to help people understand the law and plan for emergencies is elusive and opaque.

Taken together, environmental advocates say, this paints a bleak picture of the city’s preparedness for another flood. Chemicals ranging from pesticides to rocket fuels are in containers along the city’s waterfront. If they’re not stored properly, they can get swept up in rising waters and deposited in people’s yards and basements. Without a complete inventory of where those chemicals were before the flood, officials have no way of knowing where they’ve been taken after. “If you can’t measure what the problem is, then you can’t begin to solve it,” said Pamela Soto, a former research analyst at the Environmental Justice Alliance. It’s what people don’t know that puts them most in danger, she said.


The Right to Know

Until a few years ago, Joel Shufro was on the city’s Hazardous Substance Advisory Board, a little known public body charged with overseeing the so-called Community Right-to-Know Law. That’s a three-decade-old law designed to ensure citizens know what toxic chemicals are in their neighborhoods and ensure businesses store those hazardous materials safely.

Shufro remembers the day he realized the law’s name was meaningless. The board had held a public hearing on a proposal to tweak the rules and start labeling pipes if they ran toxic substances through them. It was a routine matter — except this time, “the police came in, and they just went apeshit,” he said. They demanded the city not require companies to disclose that information.

The Community Right-to-Know Law was passed in 1986 after high profile spills, including one in Bhopal India where at least 4,000 people died and hundreds of thousands were injured by toxic chemicals. Shufro’s board, created under the law, met four times a year to discuss how the city regulates toxic chemicals and ways to help businesses use and store them safely. It used to be a very open body, Shufro said, holding meetings with environmental groups and aiming to help people know what chemicals were being used in their neighborhoods and near their schools.

Produced by Nicole Acevedo and Brett Dahlberg.

But after 9/11, terrorism concerns trumped environmental concerns, and the board started functioning more as a government meet up group than a public accountability agency.

“It turned from ‘right-to-know,’ to a ‘right not to know,’” said Shufro, who was a public representative on the board for more than a decade. The representatives from the city’s police and fire departments who served on the board alongside Shufro began to think that providing the public with information about what hazardous substances are stored where in the city was also providing that information to terrorists, he said.

The “Community Right-to-Know” Act was passed after major environmental disasters shook the world during the 1980's. Three decades later, communities lost their “Right-to-Know” what toxic chemicals are stored in their neighborhoods due to a major terror event. Audiogram produced by Nicole Acevedo.

The NYPD and the fire department declined to comment on their participation on the board. The Department of Environmental Protection, which oversees the board, did not respond to several emails and phone calls asking about it.

The Hazardous Substance Advisory Board is a small piece of New York City’s efforts to mitigate the risks of hazardous chemicals used every day by thousands of businesses, but it’s also indicative of the hazy system surrounding public information about the rules. Dry cleaners, manufacturing plants and auto repair shops all use substances that fall under the jurisdiction of the Community Right-to-Know law. Those businesses tend to cluster along shorelines.

As sea levels rise and storms increase in intensity, environmental advocates say the city is falling short of its obligations to inform the public and help businesses keep their chemicals safe.

Hazardous substance storage facilities by community district. DEP data shows these sites are concentrated along coastal districts in Manhattan, Brooklyn and Queens. Source: NYC Department of Environmental Protection. Map design by Brett Dahlberg.

Requests Denied

In the 1990's, New Yorkers were just starting to recognize that what was inside nearby factories could impact their communities, Shufro said. He hoped that awareness would grow into a movement to curb the use of hazardous chemicals. Terror attacks changed that.

Philip Weinberg, who teaches environmental law at Columbia and Pace universities and served on the board alongside Shufro, said the city’s shift to secrecy after 9/11 was appropriate. The concern about sabotage was real, he said, and the board needed to move its focus away from informing the public. The definition of the community that had the right, under the law, to know about where hazardous substances were stored, narrowed. Soon, only police, firefighters and other first responders had access to that data. The emphasis on outreach and education evaporated. “Post-9/11, that really hit the brakes. After that, the information was really only available to government agencies,” Weinberg said.

Weinberg and Shufro both served on the board for almost two decades. Neither of them remember any written record of decisions to shroud the board in secrecy, but a New York City News Service investigation found that the opaque body is largely immune to public scrutiny.

An exhaustive search of city records, New York City’s official public register of meetings and contracts, aided by city archives staff, turned up no entries for the Hazardous Substance Advisory Board from 2012 to 2017.

Voicemails and emails to the city’s Department of Environmental Protection asking for the board’s minutes from its last meeting and the date and location of its next meeting went unanswered.

The city has also not responded to requests for a list of the board’s membership.

Infographic design by Nicole Acevedo

When a reporter visited the DEP offices in Queens to ask about the board, a security guard led her to a room in the back of the building and made several phone calls before informing her that no one in the office was available and she would need to contact the same press office that had not returned previous calls.

Robert Freeman, executive director of the New York Committee on Open Government, a nonpartisan state watchdog group, laughed at the idea that it would be appropriate for this board to conduct closed-door sessions out of the public view. “That’s absurd,” he said. “The board is a public body subject to open meetings law.”

Environmental advocates said this is a familiar obstacle. Pamela Soto, who worked as a research analyst at the city’s Environmental Justice Alliance for three years before leaving in October, said the city has stymied efforts to get information about hazardous chemical storage. “It shouldn’t be that difficult or such a hard process to get this data. I think they make it intentionally hard,” she said. “It should be called the community right to N-O.”

Reporters requested a string of documents connected to the Community Right-to-Know Law for this story, ranging from records of the city’s enforcement actions against lawbreakers, to the forms filed annually by companies that are following the law. In every case, the city either did not respond to the request or declined to share the documents, saying that making them public “could endanger the life or safety of an individual.”


Enforcement

Both business groups and environmental advocates say the lack of transparency from the city sets up a regulatory nightmare for enforcers and the businesses they oversee. The DEP would not release records of its enforcement actions, but any violations it issues end up under the purview of the city’s administrative court. Data from the court are available to the public, and sifting through the millions of entries dating back to 2012 revealed several thousand alleged violations of the Community Right-to-Know Act. A review those cases uncovered scores of repeat offenders: businesses that get caught not following the law, pay the fine, and get caught breaking the exact same law again the next year.

In the five years since Hurricane Sandy, the city has flagged 173 businesses for violating the Community Right-to-Know law more than once. Many of those are in zones the federal government expects to flood with increasing regularity as climate change accelerates, sea levels rise and storms intensify. More than a dozen are on blocks that flooded during Sandy.

The DEP has flagged 173 businesses for violating the right-to-know law more than once since Hurricane Sandy. Many of those businesses are in flood zones. Click a dot to see more about a particular violation. SOURCE: NYC Office of Administrative Trials and Hearings. Map design by Brett Dahlberg.

John Lipscomb, who’s in charge of advocacy at the environmental group Riverkeeper, said the storm should have been a wake-up call. “We have no idea of the vast array of chemical products that were sent into New York harbor after Sandy,” Lipscomb said.

Businesses that store or use hazardous substances over a certain threshold amount are required to file a form with the city each year listing which chemicals they’re using and in what quantities. The fine for not filing can run up to 50,000 dollars. Nonetheless, it’s not hard to find a business owner unaware that this law exists.

“Do I have to file for Right-to-Know? I don’t even know,” said Lili Rockler-Jackson, who runs a wood and manufacturing shop in Greenpoint, Brooklyn. She said she did not expect that her shop would fall under the law, but found it worrisome that she didn’t know about the rules until hearing about them at a business roundtable months after the year’s filing deadline.

When the “Community Right-to-Know” Act’s enforcement shifted after 9/11, business owners like Nick van Woert and Lili Rockler-Jackson feel lost when it comes to safeguarding the chemicals they use. Audiogram produced by Nicole Acevedo.

Sometimes entire industries are left out of the loop. Shufro said when he was on the board, they found that dry cleaners, which regularly use highly toxic chemicals, had no idea that they were supposed to be reporting those substances to the city. The DEP acknowledges the difficulty of getting people to follow the Right-to-Know law in its annual reports, including the same sentence every year since 2014: “There are many facilities that are required to comply with the RTK Law, and they may not be aware of that requirement.”

Nova Restoration, whose office is in a flood-prone section of Greenpoint, paid two separate fines for not following the Community Right-to-Know law last year. The business is a block away from what the city calls a “coastal evacuation route” in an area that Ben King, who lives nearby with his wife and toddler, said is known for chemical spills and soil contamination. Nova Restoration did not respond to requests for comment.

Businesses aren’t the only ones confused. The city has fined its own departments 18 times since Sandy for failing to follow the Right-to-Know law.

Produced by Nicole Acevedo and Brett Dahlberg.

Moving On

New York City pledged in 2013 to develop a “catalog of best practices” for storing hazardous chemicals near the shoreline. Today, there is no such catalog.

Five years after Sandy, no government body — not the federal EPA, nor the state or local environmental agencies — has done a comprehensive study to figure out what leaked into the flood waters.

In the weeks after the storm, a federal taskforce recommended an investigation into the health impacts of contamination in floodwaters. That also hasn’t happened.

The EPA did test water from two spots by the Newtown Creek between Brooklyn and Queens in the days after Sandy. The agency found high levels of bacteria, but said it didn’t believe that chemical pollution would pose a threat to neighbors. Five years later, the EPA now says there is “insufficient data” to determine whether human exposure to chemicals is under control.

Said Lipscomb, the Riverkeeper boat pilot, “Well, I don’t know what to say. That’s not an inspiring list of successes, is it?”