Toxic tort?
B. Millens & Sons accused of contaminating adjacent waterfront properties

by Steve Hopkins The Kingston Times  February 9, 2006

As Brooklyn (and now Kingston) developer Robert Iannucci has systematically bought up much of the Rondout waterfront over the past 12 months, a few stubborn pockets of old-school industrial-era resistance remain ... well, one, anyway. Barney Millens, owner of B. Millens & Sons scrap yard on East Strand, has resisted all attempts to buy him out, and all attempts by Mayor James Sottile and other public officials to get the business to relocate away from the burgeoning waterfront.
Recently the pressure has been increasing, as evidenced by Kingston Deputy Fire Chief Michael LeFevre's November 2005 missive to Millens citing the scrap yard for multiple, long-term violations of the city's local laws. A re-inspection will be made next Thursday, Feb. 16, at which time, according to LeFevre, Millins had better have all the violations corrected, including getting rid of all the trucks and roll-offs being stored on the property, taking down the barbed wire, repairing and bringing the old fence up to code and reducing the towering height of scrap metal piles to a foot lower than the fence's height, and getting rid of another huge heap of car parts, tanks, etc., or face legal action by the city.
And now, tightening the screws even further, a pair of damning reports - one commissioned by Iannucci and completed Jan. 17 by the engineering firm of Fuss & O'Neill and the other concerning what is now Iannucci's Kingston Landing parcel, commissioned last year by Mid-Hudson Patterns for Progress and prepared by the Chazen Companies - allege B. Millens & Sons as being the source of significant airborne and groundwater industrial pollution that has the potential to severely dampen the possibility of residential development in the immediate neighborhood.
According to the Fuss & O'Neill report, B. Millens & Sons "is currently the subject of a remedial investigation mandated by the New York State Department of Environmental Conservation (NYSDEC) as a potential hazardous waste site." The report then referred to the earlier Chazen study: "Previous investigations at other adjacent properties revealed soil and groundwater contamination, including heavy metals and PCBs that originated from the Millens property."
The Fuss & O'Neill study focused on potential surface contamination from airborne toxins at Iannucci's property at 1-7 Abruyn St., directly across the street from the scrap yard and lying just below the Children's Home of Kingston. The report states that plenty of contamination was found - with more of it in evidence the closer testing was done to the Millens property. The summary portion of the report, written to Iannucci, was the most damning. "The results of this investigation show that ongoing activity at the Millens property is having an impact on environmental quality at the 1-7 Abruyn Street properties, and very likely other properties adjacent to Abruyn Street and East Strand Street in the vicinity of the Millens operation. These test results are also consistent with previous investigations at the Kingston Landing parcel, adjacent to East Strand Street."
Compounds found in elevated levels deemed harmful to the health of children aged one to six "who typically have the greatest tendency to ingest soil" included chromium, arsenic, barium, cadmium, mercury and lead, stated the report. Surface concentrations of three types of volatile organic compounds (VOCs) and PCBs in excess of the same child-harming DEC soil clean-up standards were found, although there were somewhat less significant concentrations throughout the tested area, once again lessening the farther the testers got from the Millens property, according to the report. "Concentrations of metals and SVOCs [semi-volatile organic compounds] were detected in a number of locations on the subject properties that exceeded these standards, indicating a potential health risk to anyone coming in contact with these areas."
Winding things up, the report's writers - project manager Richard Totino and associate James McIver Jr., addressing Iannucci - put the hammer down. "The presence of these levels of contaminants significantly restricts your ability to develop this parcel of land," they wrote. "You have to be concerned that if the property was used for residential re-use or, frankly, any other use that potentially expose[s] children to these contaminants, that there could be serious health risks. Children exposed to the levels of heavy metals observed on this parcel can suffer neurological disorders, learning disabilities, developmental disorders, skin problems, and other health effects. Exposure to the petroleum compounds can impact the heart, blood and lung systems and exacerbate asthma problems. Needless to say, this property could never be used as a day care facility under its current condition. You should note that remediating this property might be fruitless, since the apparent source of the problem is likely to be the adjacent Millens operation."
The Chazen study, conducted early in 2005 by drilling test holes into the groundwater below, confirmed that an underground plume of contaminants was seeping in a southeasterly direction from the Millens property to beneath the Kingston Landing property, carried along with slowly moving groundwater. "The laboratory data indicate that volatile and semi-volatile organic hydrocarbons and elevated levels of heavy metals are present in site soil and groundwater in most boring locations at levels that exceed NYSDEC ambient groundwater quality standards and soil quality cleanup standards," stated the report. "Groundwater was determined to have been impacted by VOCs at all soil boring locations." The testers found MTBE, benzene, ethylbenzene, toluene and xylenes, compounds that, according to the report, "are typical constituents of light-weight petroleum fuels such as gasoline, kerosene, and diesel fuel. MTBE is an additive found in unleaded gasoline. These constituents are also very similar to those reported in the investigation performed at the adjacent and upgradient B. Millen Sons Scrapyard."
Both soil and groundwater samples were found to contain varying levels of heavy metals, stated the report. "Of particular interest is the presence of Mercury in soil samples from [three locations]. Mercury concentrations at these three locations exceeded the NYSDEC soil quality standard. Lead was prevalent in groundwater in all sample locations." The highest concentration of lead in groundwater was 7,080 parts per billion (ppb), according to the report. According to the Centers for Disease Control (CDC), the Food and Drug Administration (FDA) has proposed a provisional total tolerable intake level of lead for infants and children of 6 ug (micrograms per liter) daily. "U.S. residents ingest an estimated 5-11 ug of lead daily," says the CDC. "On average, lead-containing drinking water is estimated to contribute 10 to 20 percent of the total lead exposure for children in the United States. For infants and young children, ingestion of only 0.5 [liters] of water per day with a lead concentration of 450 ppb (450 ug/L) will result in a daily dose of lead of 225 ug - a level approximately 38 times higher than FDA's total tolerable intake level."
Again, the lead levels found in the groundwater of Kingston Landing - which presumably no one in their right mind would ever consider dropping a well into - would result in a child drinking even a cupful having the proverbial belly full of lead - something on the order of 500 times the FDA tolerable intake.
DEC foot-dragging charged
Recently returned-to-duty GOP Alderman Robert Senor of Ward 8, which includes the Rondout creekfront and neighboring Ponckhockie, is taking action based on the latest report. "Number one, it was sent to the DEC," he said. "The DEC has been dragging their feet way too long on this property. Over ten years ago I contacted them, and they said we don't have the manpower and we don't have the funding, it's not that critical of a brownfield, and so on and so forth. They gave me a big runaround. I hope now they take this seriously and shut Millens down. The Children's Home, which is right next-door, right across the street, I gotta believe their property is contaminated also. And I would hope that the DEC would make Millens have their property tested, and if it is contaminated, see that it's cleaned up. Because it's children's lives that are at risk here.
"And I'm going to go a step farther," said Senor. "We're trying to develop the Rondout waterfront. [Millens] is holding development back. He's been playing games, which I'm not happy about. We tried to relocate him. We had a site set up. Every time there was a problem and we addressed the problem with him, he came back with another problem ... If push comes to shove, I'll introduce legislation for eminent domain to get him out of there."
Senor also made a point to mention just that possibility at Tuesday night's Common Council meeting. "If the DEC comes in and actually does a real test like I've requested in years past," and finds enough contamination, said Senor, the agency should be able to shut the company down. "I don't know who Millens knows, or who he's connected with," said the alderman, "but it seems to me like the state's been dragging their feet.
"I'm pretty upset about the whole thing," continued Senor. "I do have major concerns about the Children's Home, which is right across the street. Those children, those boys from the Children's Home play down in that lot within a stone's throw of his property. There's other properties that all his contamination was found in that are also within a stone's throw. All three properties are right next to each other. The kids play basketball and touch football all the time down there at that lower field. So, we're putting kids' health at risk here. And the DEC needs to get off their butt and do something."
R-E-S-P-E-C-T
The fact that Senor - who in the past has said he's not keen on putting all the downtown neighborhood's hopes for revival in one basket - has developed a kinship with Iannucci on this issue is an interesting development. "I made a statement," said Senor. "I still somewhat feel that way, that having one developer own so much land is scary. But so far everything I've seen or heard from sitting down and talking with him - he's sincere, he wants to do the right thing. He wants to develop the waterfront within the plans that the Troy Commission put together for us, and he's right on track. So far he's been very up-front with me, very honest. I have no problems with him."
Neither Iannucci nor anyone from the Millens organization could be contacted for this article.

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