A former high-ranking EPA official says an effort to clean up and redevelop the toxic Tonawanda Coke property with brownfield state tax credits could put taxpayers, instead of the polluters, on the hook for a less comprehensive remediation.
A representative for Honeywell International Inc., which is legally responsible for some of the contamination on the site, said a developer approached them with a proposal to build a data tech campus on the Tonawanda Coke property.
As a result, Honeywell has hired lobbyists at e3communications to build support among local, state and federal politicians and community organizations for the designation of the Tonawanda Coke property as a brownfield rather than a federal superfund.
Judith Enck, the former EPA administrator for Region 2 that covers New York, told News 4 Investigates that there are major differences in how the brownfield and superfund programs work.
For example, she said, the polluters are held responsible for cleanups under superfund programs whereas taxpayers help pay for projects under brownfield programs through refundable tax credits. In addition, she said, superfund cleanups are more rigorous than brownfield remediations
The state Department of Environmental Conservation disputed Enck’s take, saying that the state’s clean up standards are fundamentally the same for the brownfield and superfund programs.
“Both start from the very same basis, which is launching a comprehensive investigation and leading to the comprehensive development of a remedy that is fully protective of public health and the environment,” said Sean Mahar, the DEC’s chief of staff.
“It’s based on what the science shows us what’s in the ground at the site or what the contaminants of concern are, we do a full suite investigation of all the contaminants under both programs and both have to design a clean-up program that addresses those contaminants.”
Some elected leaders, such as Town of Tonawanda Supervisor Joseph Emminger, state senators Chris Jacobs and Timothy Kennedy and state assembly members Crystal Peoples-Stokes and Robin Schimminger, have already sent letters of support for the project.
Rep. Brian Higgins, D-Buffalo, said his office has had conversations with Honeywell representatives about the future of the property. Over the past two years, Higgins has become one of the top recipients of campaign donations from a political action committee affiliated with Honeywell, which had been loaning Tonawanda Coke money.
In late April, Higgins told News 4 Investigates that he supported a brownfield designation for the Tonawanda Coke property.
But a week later, Higgins softened his position after he spoke with Enck.
Enck told News 4 Investigates that Honeywell’s lobbying effort is “completely inappropriate” because they have a financial stake in the decision.
“Taxpayers should be concerned because they shouldn’t have to foot the bill for this cleanup,” Enck said.
“I think it might be a shortcut to let the polluters off the hook in terms of paying for a comprehensive cleanup.”
Honeywell declined interview requests but provided prepared statements that said the company has remediated sites under different government programs, including the Buffalo Color dye factory in South Buffalo with state brownfield tax credits.
“A range of sites, including former industrial sites such as Tonawanda Coke, have been included in the program, which provides for public participation like Superfund and requires a remedy that must protect both the public and the environment,” Honeywell said.
The company disagreed with the characterization that it may be doing something inappropriate.
“The brownfield statute sets out clear criteria for inclusion in the program,” Honeywell said.
“We believe the Tonawanda Coke site would be eligible, which is why we have been discussing the brownfield program with various stakeholders. This is appropriate and often happens when preparing brownfield applications as community engagement is a big part of the program
History of property
Production on the 160-acre property started in 1917, when Semet-Solvay Co., a subsidiary of Allied Chemical, began burning coal to extract coke and other elements, such as benzene, xylene and toluene, for manufacturing purposes. Allied Chemical became a subsidiary of Honeywell.
Some sections of the property had been used to dispose of wastes such as coal tar sludge and fly ash before 1978, when Tonawanda Coke purchased the property to continue producing coke. Prior investigations indicated widespread contamination from the disposal of industrial and hazardous waste.
While the Town of Tonawanda has been home to dozens of industrial facilities, none sparked as much acrimony as Tonawanda Coke.
Members of Clean Air Coalition of WNY in 2007 conducted air testing near the plant that found elevated levels of benzene, a chemical linked to cancer and a byproduct of burning coal.
Shortly after, the state DEC launched its own air study that found even higher levels of benzene.
In December 2009, the U.S. Department of Justice, EPA and DEC raided the Tonawanda Coke facility. Less than a week later, the company’s environmental control manager was arrested, and federal prosecutors charged him and the company with violations of federal environmental laws, including the Clean Air Act.
In 2013, a U.S. District judge found Tonawanda Coke and the manager guilty of violating more than a dozen environmental laws. The judge ordered Tonawanda Coke to pay $12.5 million in fines and another $12 million in community health payments for soil and medical studies that are being conducted by University at Buffalo scientists and doctors.
Honeywell International had loaned Tonawanda Coke about $8 million to cover the community health payments. As part of the loan, Honeywell has a mortgage on the property.
Residents have long been concerned with what they perceived as higher than normal rates of cancer in the surrounding neighborhoods, chemical odors and black smoke emitting from the Tonawanda Coke stacks.
Their health concerns were partly validated in 2013, when a state Department of Health study found elevated rates of some cancers in neighborhoods near Tonawanda Coke. The cause of these cancers was not identified or studied.
To make matters worse, the court-ordered soil study by UB has already found a mix of chemicals on some private property surrounding Tonawanda Coke.
Last fall, Tonawanda Coke filed for bankruptcy and shut down for good.
Now, Jon Williams, CEO of OSC, an environmental and demolition contractor, said he could have some of the property ready for redevelopment in a few years if it is designated a brownfield by state officials.
Data tech center proposal
Williams has experience working with poisoned places.
OSC’s website states that it completed the first brownfield redevelopment project in the state when it transformed an empty industrial building into a 120,000 square foot facility for a furniture manufacturing company in Falconer.
OSC also remediated through the state’s brownfield program the former Buffalo Color property, which now houses two museums. In addition, the company continues to remediate the former GM and American Axle plant on East Delevan Street in Buffalo through a hybrid of both the state brownfield and superfund programs after years of negotiating with the DEC.
His vision for the property is to develop a data technology campus, which would need a lot of stable land, water and power to run and cool the massive computer and storage systems it would house.
“If you separate the environmental, it is a good site for the users, and there are more users in the market today than there are sites,” Williams said. “It’s difficult to find sites that have those attributes in developed areas.”
Williams spoke critically of the federal superfund program that often drags on for years and does not always end with the property being redeveloped. He said he would not be against some hybrid form, with some sections designated as brownfields and the more polluted sections designated for the state superfund program.
But he said a cleanup through the federal superfund program would not likely result in any redevelopment of the property.
“What happens is it becomes an industrial cemetery in our community,” he said.
Members of Clean Air Coalition of WNY are opposed to a brownfield application because Tonawanda Coke is a “poisoned place.”
“And while brownfield programs are great for sites like gas stations or dry cleaners, Tonawanda Coke is not a gas station or a dry cleaner, and the best tool to remediate that site is the EPA superfund program,” said Rebecca Newberry, executive director of the nonprofit organization.
Newberry scoffed at criticism that superfund cleanups take too long.
“I want to be very clear to people who say that because the reason we are in this situation we are in now is because for decades the people who were supposed to protect us, the agencies that were supposed to protect our health, the elected [officials] that were supposed to represent us, didn’t,” she said.
DEC dispute Enck, while Higgins softens stance
Enck said it would be “wildly inappropriate” to designate the Tonawanda Coke site as a brownfield.
“You should not be putting heavily contaminated sites into brownfields,” she said.
“The clean-up standards are not as rigorous. Also, the polluters should pay. It is really shocking that brownfield’s designation is even being considered and any elected officials, any public officials that are responsible will look into this and not support brownfield designation.”
Mahar, with the DEC, said the state’s superfund and brownfield programs require work that must be “fully protective of public health and the environment.”
“That cleanup plan is going to look at what was identified in the comprehensive investigation, what the nature and extent of those contaminants are on the site, and develop a cleanup plan that addresses those contaminants,” Mahar said.
Honeywell said it worked with OSC to remediate and redevelop Buffalo Color in South Buffalo under the brownfields program.
“While Honeywell continues to work with state and federal agencies to determine the scope of its responsibilities, it is cooperating with OSC’s effort as well,” the company said.
Honeywell hired e3communications earlier this year for $3,750 per month through December for government affairs work.
By May, they had letters of support from state and local lawmakers to designate the Tonawanda Coke property as a brownfield.
“Our organization has been contacted numerous times by e3communications,” Newberry said.
“Honeywell has legacy waste at this site, there is the potential for them to be held accountable to clean up and remediate that waste. That would happen under the superfund program.”
Initially, Honeywell appeared to have the support of Higgins, the congressman. He told News 4 Investigates in late April that he supports the designation of the Tonawanda Coke property as a brownfield because the cleanup would get done quicker.
“The Department of Environmental Conservation will do a better job of cleaning up the property and bringing it back to a useful purpose for the people in and around that community,” Higgins said.
Since 2017, federal campaign records show that Honeywell has donated at least $15,000 to Higgins, including $2,500 on Jan. 31 and another $2,500 on Feb. 15, which coincides with when e3communications began lobbying for the company. In addition, Williams’s wife, Heather, donated $2,700 to Higgins on Sept. 21, 2017, according to federal campaign records.
Honeywell said its political action committee “supports those who support the policies that will help the American economy grow and add new American jobs over the long-term.”
After the interview with News 4 Investigates, Higgins called Enck to discuss the proposal.
“That conversation was an eye-opening reexamination of Superfund and the unique needs of the Tonawanda Coke site,” Higgins wrote in a May 1 letter to Basil Seggos, the DEC Commissioner.
“During that conversation, Ms. Enck made a compelling case for this site’s inclusion in the federal Superfund program. The contamination at this site is severe and extensive, and the federal Superfund program surely possesses the necessary legal authority and expertise to handle a site of this magnitude.”
Higgins urged the DEC to engage residents and other stakeholders before it decides, and “should the Department of Environmental Conservation nominate this site for inclusion in the superfund program, I will support that application.”
The EPA said it has had “preliminary discussions with the New York State Department of Environmental Conservation about the long-term cleanup options available for the site, including evaluating the site for conclusion on the National Priorities List of Superfund sites, or addressing the site under a New York state program.”
“In the coming months, our engagement and cooperative partnership with New York agencies and partners will be a key component of the decision-making process,” the EPA said.
The DEC, so far, has not taken a position on which program it plans to choose for the cleanup of Tonawanda Coke.
“After the EPA’s work to stabilize and secure the site is complete, a comprehensive investigation is necessary to understand the full nature and extent of contamination,” said Martin Brand, DEC’s deputy commissioner for environmental remediation and materials management.
“DEC and EPA will conduct a full analysis of cleanup strategies, which will inform the selection of an appropriate cleanup action(s) to prepare the property for future re-use.”
Seggos, the DEC commissioner, makes the final decision on the clean-up designation, but the DEC gave no indication of when that will come. He has already met with Clean Air Coalition members, but stopped short of committing to a cleanup strategy. Attempts to get answers to questions since that meeting have been unsuccessful, coalition members said.
Newberry said the DEC commissioner’s hesitancy to commit to a superfund program was “alarming.”
She said the organization’s wish for a superfund cleanup is backed by dozens of other community groups, such as Ken-Ton Garden Club, Kenmore Village Improvement Society and Kenmore Teachers Association.
“I think what’s most difficult in our work is the fact we’re told over and over again by state agencies that facts matter – and facts matter, sure they do. But in this case we have the facts, and they don’t seem to matter,” she said.
Mahar, of the DEC, said the agency is still reviewing options.
“Our goal is to always keep the community engaged through any clean-up program that we do and base our actions on what the community tells us,” he said.
Gary Schulenberg and Maria Tisby, both Clean Air Coalition members, said they want to see a comprehensive cleanup of the property, which they believe can only be done through the superfund program.
“I think the most important thing, like anything in life, is that it needs to be done well,” Tisby said.
“To do it haphazard and try to save a few pennies or maybe just do it to honor your political aspirations is not what I think Tonawanda residents or people want. Health is the most important thing, it’s priceless.”