Mar 5


Outer Harbor: Toxins, yes; transparency, no 

(Editor’s note: Watch WGRZ’s 6 p.m. newscast Friday for a second installment of the package.)

The state’s latest approach to developing the Outer Harbor calls for expediting the construction of housing next to a partially remediated Superfund site contaminated with sludge that possibly causes cancer.

The revised scheme is aimed at mollifying opposition to the Erie Canal Harbor Development Corporation’s original plan to build housing next to the environmentally sensitive Times Beach Nature Preserve.

Shifting the first phase of residential and commercial development a mile south of Times Beach borrows from a plan advocated by Buffalo Niagara Riverkeeper that has been endorsed by U.S. Rep. Brian Higgins and state Assembly Member Sean Ryan, outspoken critics of the development corporation’s original plan.

But the alternative site abuts a large swath of the Outer Harbor that is contaminated with carcinogenic chemicals and toxic heavy metals such as lead, mercury and arsenic, according to documents obtained by Investigative Post under the state Freedom of Information Law.

The abutting property, like much of the Outer Harbor, is not deemed as a safe location for housing or a park without further testing to determine if remediation is necessary, according to the documents obtained by Investigative Post.

The contamination not only raises questions about the suitability of the location for development, but the cost of cleaning up the contamination for any type of public use.

The development corporation, charged with developing the Outer Harbor, has not been forthcoming about the contamination. Rather, the problem is detailed in a dozen environmental reports obtained by Investigative Post.

“It’s pretty upsetting that this information wasn’t actually made available at the beginning of the planning process,” said Lynda Schneekloth, a member of the board of directors for the Western New York Environmental Alliance, a coalition of more than 100 environmental organizations.

“To not have it included creates a sense of distrust. Like, how are you dealing with the contamination?”

Robert Gioia, chairman of the development corporation, and Thomas Dee, its president, refused interview requests from Investigative Post. Gioia would only provide a prepared statement that said they are “very familiar with the environmental issues on the Outer Harbor.”

Jill Jedlicka, Riverkeeper’s executive director, also refused an interview request.

The development agency also recently rejected a FOI request from Investigative Post for a copy of any market feasibility studies that officials have said support their position that there is a demand for a mix of housing and commercial at the Outer Harbor.

The failure to disclose marketing and environmental information has prompted criticism of the agency for not being transparent.

“It infuriates me, especially recently that the governor tells the legislature ‘I will not sign a budget unless we have more transparency,’ ” said Dan Sack, a Buffalo resident who has followed waterfront planning for three decades.

“I would encourage legislators to say, ‘How about your branch of government show more transparency?’ ”

(With this interactive map of the Outer Harbor you can  zoom in and scroll to different spots. Click on a marker or highlighted piece of land for more information.)

Pushback on state’s plan

The land under the development corporation’s control stretches along a 1.3-mile shoreline from just north of the Terminal A and B buildings to Wilkeson Pointe, south of Times Beach.

At the behest of Gov. Andrew Cuomo, the development corporation last summer put the project on a fast track. After a series of community meetings in the summer, the agency released its preferred plan in September. That plan included three clusters of parkland, commercial development and up to 2,100 housing units.

However, environmental organizations and activists said enhancing and preserving access to the waterfront was most critical and rejected the state’s proposal. Higgins and Ryan joined the chorus of concerns.

“The vast majority of that land should be preserved in perpetuity for public access,” Higgins said in August.

In October, Investigative Post highlighted other potential obstacles to the project. They included the lack of any environmental impacts study or cost estimates of the state’s project and no review of legal issues that could require extra steps to develop the land.

The development corporation agreed to revise its proposal. The agency hasn’t released an alternative plan, although officials outlined aspects of it to The Buffalo News in January.

The development corporation’s plan outlined in The News appears to accept Riverkeeper’s premise that housing and commercial development should be concentrated, at least initially, on the southern end of the property, possibly reusing more than a half-million square feet in two vacant NFTA-owned terminal buildings.

The problem is, none of the roughly 50 acres of vacant land next to the terminal buildings is suitable for a park or housing in its present condition.

Of particular concern is the 1-acre Superfund site that was left with a possible carcinogenic nitrobenzene sludge at levels that would require additional cleanup for housing and an active park use such as ball fields.

Superfund site

Lake sediment, incinerator ash and steel slag from nearby factories – all containing contaminants – were used to fill in the Lake Erie shoreline from the 1870s to the 1970s to create the Outer Harbor. Four dumps were also located on the Outer Harbor over the years, further adding to its environmental degradation.

Until the late 1990s, almost all of the land now proposed for development had been classified as a Superfund site that presented a potential threat to human health. In 1997, the state Department of Environmental Conservation reclassified most of the land as a brownfield.

The only section that remains a Superfund site is the 1-acre parcel at the northern edge of the Terminal A parking lot called the Radio Tower. Tests from the mid-1990s found nitrobenzene sludge in the soil at 3,500 times higher that what’s considered safe for residential setting.

Although the site is partially remediated and has a soil cap, contamination might still be triple the guideline for soil concentrations safe for residential use, a 2005 site management plan said. Accordingly, the DEC and the NFTA placed a restriction on the property that prohibits residential development.

“If the use were to be upgraded to residential, additional investigation, cleanup or controls could be required,” a DEC official told Investigative Post.

However, the plans advanced by the development corporation and Riverkeeper appear to pay no heed to the Superfund site. In fact, both appear to depict using a portion of the contaminated property as a “destination playground.”

A DEC official said recreation with limited potential for soil contact would be allowed on the property, but the agency “would not support land uses that present environmental or health concerns.”

Widespread contamination

Contamination problems aren’t limited to the Superfund site.

The Outer Harbor as a whole is peppered with soil contamination, according to documents obtained by Investigative Post.

And the land that abuts the terminal buildings now targeted for development – some 50 acres between the buildings and the Bell Slip – is the Outer Harbor’s most contaminated, documents show. More than 40 percent of the 58 surface soil samples taken there had carcinogenic chemicals and heavy metals considered unsafe for a park, according to a February 2012 assessment prepared for the NFTA and development corporation.

Put another way: Most of the property isn’t clean enough for a family stroll or a picnic, much less residential development.

Schneekloth said the contamination “makes one think cautiously about how you want to bring the public onto the site.”

An April 2009 environmental assessment of the terminal buildings and adjacent land could not verify that soil contamination or other environmental problems don’t exist on the property. That report recommended more in-depth investigations and potentially a soil management plan before any redevelopment.

Although there was less contamination north of the Bell Slip, about a third of the roughly 110 acres still had levels too tainted for use as a park.

The 2012 report concludes that prior to any redevelopment, the soil will either need to be remediated or tested further.

“We should do this right,” Schneekloth said. “We have enough experience of not doing it right and if we are going to bring people to the Outer Harbor, we should make sure it is a safe place to be.”

The contaminated soil isn’t the only problem.

The Outer Harbor’s history as a dumpsite raises more questions about what might be buried underground.

Documents show that state contractors in 2008 discovered about 100 buried drums, some containing paints, solvents and a tar-like material, along Fuhrmann Boulevard. Soil samples showed the residue included a possible carcinogen chemical called naphthalene. The contractor removed 358 tons of contaminated soil.

The discovery leaves some questioning the wisdom of development that will disturb soils.

“Conventional wisdom would say let’s not disturb the ground, let’s not go digging out there,” Ryan said. “Let’s cap it, let’s plant it and let’s have a nice recreation area. But once you start digging in the ground, you’re going to find things you’re not happy with.”

Clean up costs

Remediating the Outer Harbor to make it safe for development, be it a park or housing, won’t be cheap.

There are no updated cost estimates for remediating the land. But a 2002 DEC report estimated that remediating some 60 acres north of the Bell Slip would cost between $6 million and $265 million, depending on what is developed on the property. More cleanup would be required for housing than a park.

There are portions of the Outer Harbor that may not require much remediation.

The 2012 assessment shows about two-thirds of the 110 acres located between the Bell Slip and Municipal Pier potentially could accommodate a passive park with minimal or no remediation. But the assessment cautioned that “additional testing and/or cover installation may be warranted in those areas prior to reuse.”

In addition, the assessment did not consider residential uses, which come with more stringent guidelines for soil cleanup.

How does Perkins + Will, the design consultant hired by the development corporation, address these environmental problems?

With ambiguity.

Perkins + Will, retained last summer for $738,000, largely ignored the environmental problems in a July 2014 Outer Harbor Existing Conditions report posted on the development agency’s website.

The report mentioned that most of the Outer Harbor is a brownfield, but vaguely summarizes as a constraint the “range of soil conditions” that could require “different approvals, remediation and structural needs.”

“If you read their existing conditions report, it doesn’t talk about the complexity of the environmental problems and it never once mentions the word Superfund site,” Ryan said.

“There’s a lack of transparency here,” he added.

Refusal to release information

Questions remain if there’s a market for residential development that would require the most extensive and costliest remediation work.

Sam Hoyt, regional president of Empire State Development, assured WBEN radio listeners in October that any development on the Outer Harbor will be market-driven.

“Right now, we believe there is a demand for waterfront housing, that will be mixed income, not just for rich people,” he said.

Sack, the Buffalo resident who has followed waterfront projects, questioned Hoyt on the radio program for “selling a residential plan without starting the economic analysis.”

Hoyt’s response: “We’ve got a lot of information, Dan.”

However, the Hoyt and the development corporation refused to release the market and economic analysis that Investigate Post requested under the FOI Law.

Robert Freeman, executive director of the State Committee on Open Government, said the FOI law mandates the release of factual and statistical information that is presumably contained in the analysis.

“It is inconceivable that the materials requested do not include statistical or factual information,” he said.

Ryan expressed doubt that the development corporation has any market analysis.

“If there’s a market analysis now, that’s news to me,” he said.

He cautioned decision makers to be leery of a “very tarnished history in Western New York of trying to build housing on contaminated sites.”

“We tried to do it at the Love Canal site and we all know what happened there and more recently we did it at Hickory Woods.”

Weekly updates delivered to your inbox every Sunday

Signup for our free newsletter to stay in the loop on the latest news