Developer sues Rochester over brownfield cleanup

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The city of Rochester needs to acknowledge its role in contaminating a Goodman Street brownfield and should help pay for the site’s environmental cleanup costs, a developer completing construction of a 100-unit apartment project on the property claims.  

Mark IV Enterprises affiliate Highland Grove LLC expects the $17.5 million project now under construction at 625 S. Goodman St. to be ready for occupancy next year. 

The 2.2-acre Goodman Street tract sits by I-490. Mark IV bought the property from New York in 2016. The parcel at one time housed the Sherwood Shoe Factory. After the abandoned shoe factory burned in a two-alarm 1971 blaze, the parcel stood vacant for nearly half a century. 

Highland Grove won tax breaks for the project through Monroe County’s Imagine Monroe economic development arm. The LLC also earned tax credits under the state’s Brownfield Program, which awards tax boons to developers as an incentive to clean up and build on contaminated land. Highland Grove’s cleanup of the Goodman Street parcel included excavating and hauling away some 13,000 tons of contaminated soil. 

Unbeknownst to it when it first undertook the cleanup, the LLC now says, the Rochester Fire Department significantly contributed to the Goodman Street site’s contamination. The city should thus bear some of the cost of an environmental cleanup at the site as well as pay for ongoing monitoring to detect groundwater pollution and any further remediation regulators might require, Highland Grove maintains.    

lawsuit filed Sept. 2 by the Mark IV affiliate in U.S. District Court in Rochester asks for an injunction requiring the city to assume groundwater monitoring costs and pay for possible future remediation. 

In addition to its legal costs and reimbursement for some of the money it has already spent to scrub the site, the LLC is asking for further unspecified compensatory damages. The developer’s court complaint does not detail amounts Highland Grove has spent so far or estimate what further costs ongoing monitoring and further remediation might entail.

The LLC claims liability falls on the city because training exercises conducted by the Rochester Fire Department at the site left toxic chemical residues. 

The chemicals in question, per- and polyfluoroalkyl substances, constitute a group known as PFAS whose members do not break down easily, persisting in soil for generations and lacing groundwater with harmful carcinogens. 

Their harmful effects undetected, PFAS for many years escaped regulation. New York localities recently found to have groundwater contaminated by PFAS include the former Seneca Army Depot near Ovid in Seneca County and the Schuyler County towns of Watkins Glen and Montour Falls.

The PFAS group includes perfluorooctanoic acid, known as PFOA. Extensively used in the Teflon coating, stain-resistant carpet and plastics manufacturing since the 1960s, PFOA has been found to have contaminated water supplies in Hoosick Falls in Rensselaer County and Newburgh in Orange County. 

Citing the presence of PFAS, the Mill Seat Landfill in Riga, where Highland Grove initially planned to dispose of the 13,000 tons of contaminated soil removed from the Goodman Street property, refused to take the toxin-laced dirt. A Seneca County landfill agreed to accept the Goodman Street soil, but the switch involved extra costs, Highland Grove states in court papers. 

Tests ordered on the Goodman Street site by the city failed to detect PFAS, an oversight that apparently occurred because the city did not tell the company it hired to do a 2012 environmental assessment about RFD activity that put PFAS in the parcel’s soil, the LLC’s court action alleges. 

A second round of tests paid for by Highland Grove was conducted in 2015 by the same firm that did the first round for the city. Again, no PFAS contamination was looked for and none was found. A third round of tests done at the behest of New York’s Department of Environmental Conservation did turn up PFAS contamination, which the DEC ordered Highland Grove to clean up, the court complaint adds. 

According to the LLC’s court brief, despite Highland Grove’s alerting Rochester officials of its intention to sue over the PFAS contamination in 2018, the city has so far “refused to investigate and remediate the contamination in, on or at the site or to reimburse Highland for the response costs it incurred as a result of disposals of PFAS at the site.”  

After the abandoned Sherwood Shoe Factory burned in a two-alarm 1971 blaze, the parcel stood vacant for nearly half a century.  (Photo credit: Rochester Public Library)

When the shoe factory burned, the state had already acquired the parcel among a number of eminent domain land seizures it did to make way for construction of the Inner Loop and I-490.  The burned-out shell of the abandoned five-story factory building was razed after the fire. 

For the next 45 years, the state used the vacant Goodman Street parcel to park Department of Transportation road graders, backhoes and other equipment. RFD firefighters also used the site for training, possibly with the state’s permission, Highland Grove claims. But the city never told the LLC about that use. 

RFD firefighters kept using the Goodman Street tract for training and kept spraying toxic foam after the LLC acquired the Goodman Street site, but the city never asked Highland Grove for permission or told the LLC that the RFD was using the site, the Mark IV affiliate claims. 

The LLC’s first inkling of the RFD’s use of the site for training exercises came by accident in 2018, the developer’s court brief claims. 

“The use of the property by the city of Rochester Fire Department was unknown to Highland until 2018, when a contractor encountered city fire fighters trespassing on the site and using fire-fighting foam,” Highland Grove attorney Ronald Hull of Heisman, Nunes & Hull LLP wrote in the Mark IV affiliate’s court complaint.   

Citing a policy against commenting on pending litigation and taking “the interest of taxpayers” into account, the city would not comment on the PFAS dispute, Justin Roj, director of communications and special events, wrote in Sept. 5 email to the Beacon.

Will Astor is Rochester Beacon’s senior writer.

3 thoughts on “Developer sues Rochester over brownfield cleanup

  1. I remember hearing that they knew of the contamination and MarkIV were going to put garages under the units to keep the apartments off the ground

  2. I wonder if the City can now sue the State for their having failed to notify the City (and Mark IV, where I work) that whatever agreement there may have been to permit the fire department to use spray foam in their training exercises, became null and void upon the sale of the property to Mark IV. As a City resident and taxpayer I’d like to see that happen.

  3. There is an old wall street axiom that “pigs live and hogs get killed.” Filing a lawsuit for damages when the plaintiff is entitled to brownfield tax credits seems to fall into the “hog” category.

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