New Yorkers rarely succeed in holding state accountable
By Ry Rivard
For years, there were signs that something was wrong with the water on Ben Sweeney’s farm.
The cows weren’t producing as much milk. Appliances and farm equipment broke. Ben and his wife weren’t feeling well. Their son’s hands would bleed, and their grandkids were getting rashes.
He began to panic when the cows started dying.
He tested the water and found it was full of salt.
His suspicions about whom to blame settled on a nearby road. Each winter, the New York Department of Transportation dumped ton after ton of salt on State Route 26, which runs past the Sweeneys’ 300-acre farm near Boonville, just southwest of the Adirondack Park.
In early 2004, officials from New York State admitted they had poisoned his water with salt. But they refused to pay for the damage.
In the years since, Ben and his wife Barbara have suffered more health problems. He has high blood pressure; she had a stroke and needed a kidney removed. He dipped into his retirement to try to save the farm. His hopes of traveling the country in an RV are gone.
“They actually took our life away from us,” Ben said.
An Adirondack Explorer investigation found that across upstate New York, road salt has seeped into drinking water supplies, poisoned wells, endangered public health and threatened people with financial ruin. In an average year, according to the Clear Roads maintenance research consortium, New York spreads roughly 50,000 pounds per mile on every lane of state highway, making it one of the heaviest users in America. But state officials have largely escaped accountability for the resulting pollution.
State and local highway departments dump more than 2 billion pounds of salt on New York roads each winter, trying to keep them clear for traffic. But that safety measure comes at a price. About a fifth of the salt sprinkled on roads bounces off highways and onto the land. More of it runs off later.
The chemical properties of salt that help it fight off snow and ice also harm metal, meaning it can ruin cars, appliances and plumbing. And, in a high enough dose, salt is dangerous to human health—it raises blood pressure and leads to heart attacks, strokes and kidney disease.
In and around the Adirondacks, world-class environmental regulations have done little to protect people or property from this damage. Heavy salting in the park began with the 1980 Lake Placid Winter Olympics, and as early as 1990 a state commission on the park’s future recommended studying its effects and developing a roads plan to minimize them. Subsequent studies suggested widespread contamination, and the state has designated some test zones to reduce salt applications, but the debate over how to protect the park at large continues.
The salt that highway crews still use to keep roads passable for winter tourists may now be one of the largest threats to the park and its people since acid rain.
From 1998 to 2003, the state spread more than 300,000 pounds of salt on the stretch of road in front of Ben Sweeney’s farm. By the time he realized it had seeped into his water, there were 490 milligrams of sodium in every liter of water he was drinking.
Barbara would drink a gallon a day from the faucet. By just drinking that water, she was unknowingly loading herself up with more salt than some federal guidelines say a person should get from a whole day’s meals.
If they had been getting water from a public drinking water system, the Sweeneys could have been warned. Community water systems are supposed to tell people if there’s more than 20 milligrams of sodium per liter.
But the Sweeneys are among roughly a million New Yorkers who get water from private wells that go largely unchecked and unregulated.
Instead, the Sweeneys only stumbled on the pollution while trying to figure out why their cows were sick. In the late 1990s, just as the state started applying more salt to the roads, milk production on the farm began to fall.
Around 2003, about 20 cows, most of them pregnant, died.
After changing the cows’ diet didn’t work, the Sweeneys tested their water.
When they realized it was contaminated, they decided to seek help from the state. But they soon learned the hard way that the state doesn’t have to help.
Two officials from the Department of Transportation first visited the farm in December 2003, a few weeks after Ben had borrowed about $8,000 from the bank to dig a new well farther from the road.
By coincidence, one of the DOT officials, Dennis Pawlicki, a regional engineer for the state, had grown up on the farm before his folks sold it to the Sweeneys in 1964.
Pawlicki was straight-up. Yes, it looked like the state’s road salt was to blame.
In February 2004, after the state’s lab results came back, Pawlicki wrote a letter to spell it all out. “Dear Ben,” it began.
“Based on these sample results, it appears that your existing wells have been contaminated with road salt,” Pawlicki wrote. “The problem is most likely due to the fact that your farm lies near the bottom of a long slope, and the drainage from a fairly long stretch of highway finds its way onto your property.”
Because the damage was from “routine road salting,” though, the state didn’t owe the Sweeneys anything.
The people vs. NY
In and out of court, the state has been able to use this defense to escape responsibility after road salt ends up in drinking water.
Interviews with people across upstate New York suggest that DOT won’t help homeowners unless they spend years of their life fighting the state.
As soon as Dave and Polly Grebe closed the deal on their new home along Lake Clear, in a rural hamlet northwest of Saranac Lake, Dave went inside to pour himself a glass of water.
“Something’s wrong,” he said.
It was so salty even the dog wouldn’t drink it.
The Grebes spent the next five years trying to get the state to take responsibility, even though the source of the problem seemed obvious. State Route 30 ran right by their house. Runoff from the road came down a slope into their yard toward the lake. Across the road and slightly uphill from it, at other property the Grebes owned, the water was fine.
They weren’t alone, either. All along Lake Clear, property owners between the road and the lake have found salt in their water.
The Grebes finally got help, but only because Dave Grebe is a persistent man. He called the state. A lot.
“I’d call them like clockwork every morning,” he said.
Even though the state started paying to send the Grebes bottled water, it continued to deny fault. In a 2009 letter written by a DOT attorney, Yvie Dondes, the state said the fault must be with the Grebes: Their old well was too shallow. A new well, which they had spent at least $10,000 on and that was already contaminated, either wasn’t built correctly or was in the wrong part of the yard.
One time, after Dondes promised to get back to him soon on some issue, Dave decided to stop calling. He waited for her to call back for 52 weeks—a whole year.
“She never called,” Polly said.
Then they called the state to complain about their ill treatment. They found an attorney for the state who had what Dave called common sense.
In settlement documents, DOT finally admitted that road salt had contaminated the Grebes’ well and agreed to pay about $20,000 to reimburse them for their expenses. Another new well that ran under Route 30 and got water from their property across the road was finally providing them with safe water.
That helps the Grebes, but it doesn’t help others around the lake, who complain of similar problems and have lab results to back up their allegations. Kirk Peterson is one of them.
“We’ve been buying gallon jugs of water and dealing with it for 20 years or so,” he said.
In the settlement papers, DOT blamed the mess at the Grebes’ place on “unique geography.”
Dave Grebe is skeptical.
“They’re going to have to explain why the unique geography is happening everywhere,” he said.
Jim Bowman, who lives near Stratford by Pleasant Lake, downhill from State Route 29A, only hopes he’ll eventually get a deal like the Grebes got.
His water also shows signs of road salt pollution, including huge amounts of chloride, one of the other corrosive components of salt.
He thinks that explains why his water seemed to be eating his house alive—ruining plumbing, a washing machine, faucets, water heaters, the ice maker and a handful of water filters each week. One time, in the middle of winter, with several feet of snow on the ground, he paid some friends $20 an hour to help him dig up a water line that had suddenly burst.
The state wasn’t helping, so he heard about the Grebes and got Polly on the phone.
“I said to her, ‘I would love some help. Anything—$100. They wouldn’t even change a filter for me, how did you get a well?’” Bowman said. “She said, you got to bitch, I mean, you really got to call everybody and call them every day.”
At the time, Bowman couldn’t do it—he was working 12 hours a day for Fage, the yogurt maker in Johnstown. Between 3:30 in the morning, when he got up, and 7:30 at night, when he got home, when was he going to fight the state of New York’s 9-5 bureaucrats?
Clean water is especially important to Bowman, who needed a kidney transplant and is now walking around with one of his son Jason’s kidneys.
Because sodium damages the kidneys, salty water could kill him.
Both he and Jason wonder if the salt in the water was part of the problems he has already faced.
“I was pounding salt like there was no tomorrow,” he said of the drinking water at his house.
The doctors wouldn’t say one thing caused another—only that the salt certainly didn’t help his blood pressure. The kidney problems cost him his job and now, after the transplant, he’s on a regimen of medication to keep his immune system from attacking the new kidney.
He went ahead and put $10,000 of his own money into a new well. He’s waiting until the new well settles to test the water quality. If there’s salt there, it will have been in vain.
He said he’s begging the state to use less salt on the road by his house.
“I didn’t do anything wrong,” he said. “You’re polluting the hell out of my property.”
While the Adirondacks are known for their thousands of pristine lakes and ponds, groundwater is just as important.
The Adirondack Watershed Institute at Paul Smith’s College has tested nearly 500 wells in the Adirondacks—including Bowman’s and Peterson’s. More than half of the wells they tested downhill from state roads had elevated salt levels.
Dan Kelting, the institute’s executive director, said it’s time for people to pay attention to the threat that road salt poses to groundwater across the Adirondacks.
“Our groundwater may be the more valuable water,” he said. “It’s certainly the water more people drink.”
One agency responsible for protecting it, the Department of Environmental Conservation, has seemed outgunned by DOT’s priorities for decades.
Art Stemp, a former DEC staffer, said if the state highway department was a private company contaminating groundwater supplies wherever it did business, all the regulatory forces available to state environmental officials would be brought to bear against it.
Instead, with road salt, one arm of the state is being asked to regulate another. And it’s not really working.
In 1994, one of Stemp’s colleagues, Fredric Dunlap, wrote a letter to a Vermontville resident whose wells had become contaminated with chloride.
There were a few possible sources: salt leaking out of the Town of Franklin’s nearby storage shed; salt put on the roads by the state; or some combination of both.
In the years since, the state has spent a lot of money upgrading salt sheds. But, as Dunlap predicted in his letter, good luck trying to get the state to stop using so much salt on the roads.
“The policy to maintain winter roads in a snow and ice free condition is a management decision by the DOT in the interest of public safety,” Dunlap wrote to the Vermontville resident, who asked to remain anonymous because they didn’t want to hurt their own property value by letting people know about the salt intrusion. “It is this Department’s understanding that this policy will remain in effect and does take precedence over other concerns.”
Little has changed.
When asked what the state was doing to police road salt, a DEC spokeswoman wrote that the department is “committed to protecting public health, the environment, and public safety through the proper management of road salt storage sites in New York through its oversight of permit conditions, grants to enclose municipal road salt piles, monitoring of surface waterbodies, and coordination with local and state agencies.”
There’s scant mention of the sort of runoff that polluted the Sweeney or Grebe properties.
DOT spokesman Joseph Morrissey said in a statement that the department “follows strict snow and ice guidelines in order to make sure our highways are safe for drivers” and is working to protect the environment by “also undertaking pilot programs to study new equipment, techniques and possible modification to application rates.”
On stretches of road near Lake George and Lake Placid, the department has been experimenting with ways to use less salt.
There’s little anyone can do about the salt that’s already in the ground, though. The salt is likely to remain there and in the water for decades, if not centuries, to come.
“Once it is in the water supply, it’s there and it’s going to last a lot longer than most people will,” said Stemp, the former DEC staffer.
New Yorkers who want to hold state government accountable must do battle in the court of claims.
A search of claims shows that few people have taken the state to court over road salt issues. In fact, when the term does show up in court records, it’s sometimes coming from people who complain that the state isn’t using enough road salt to keep roads clear.
The state is in a damned-if-you-do, damned-if-you-don’t situation. Apply too much salt and someone will sue. Apply too little and someone—perhaps someone with a wrecked car to prove damages—may sue as well.
A water pollution case is the harder one to prove. It takes lab results, maybe a geologist or two, and harms that may materialize only over a long time, perhaps long after statutes of limitations have passed.
In court, DOT has largely prevailed over homeowners who have accused it of contaminating their wells with salt runoff.
‘Not our mission’
Part of that is judges’ deference to DOT’s own guidelines. When DOT applies as much salt as it says it needs to apply to keep the roads safe, judges haven’t found it guilty of wrongdoing, even when that much salt is polluting nearby waterways.
DOT has also benefitted from strict timelines in the law that require homeowners to sue it almost as soon as they discover a problem.
In one of the state’s few salt pollution cases to reach trial, an attorney asked one of the New York State Thruway Authority’s environmental engineers, David Curtis, if the authority’s mission is to ensure that residents near its roads have clean, potable, non-salty water.
“That’s not our mission,” Curtis said.
The mission, he said, is to make sure the highways are safe and reliable.
In that case, several dozen residents of Greenville, an Orange County town along Interstate 84 near the New Jersey line, first noticed salt in their water in the 1990s. They blamed the Thruway Authority and DOT, which took turns maintaining nearby roads.
Without admitting any guilt, the Thruway Authority started sending drinking water to some residents, because their tap water was unusable. One family has received six 5-gallon bottles of water every three weeks since 1994, courtesy of the state of New York.
“Please be assured that we are working toward a long term solution and will urge other local and state agencies to join us in the search,” the Thruway Authority’s chief engineer, Robert Donnaruma, wrote in spring 1994.
That solution didn’t come, so the families sued the state.
In a 2017 decision that is now being appealed, White Plains-based Judge Stephen Mignano said that ruling in favor of the families with polluted water could subject DOT and the Thruway Authority to “liability on a statewide basis,” leaving them responsible for costly cleanups and new water systems.
“Clearly,” the judge said, “a permanent solution, if attainable, lies with the executive and legislative branches.”
Quest for justice
But so far neither branch has helped. A quarter-century after the state promised a fix, the Greenville families are still in court.
The Sweeneys spent just shy of 15 years looking for justice. Part of the problem is one attorney they hired had his law license suspended, so they had to get another one. That delayed things a bit.
During the long-awaited trial in 2018, the state never admitted that its salt is what killed the cows. Instead it focused on what the Sweeneys, proud farmers with a history of winning awards for their milk, might have done to bring harm to their own cows.
Ben Sweeney was taken aback by the state’s attack, which he felt focused more on his farming than on their runoff.
“They were more after my qualifications, if I was trustworthy or not,” Ben said.
The Sweeneys estimate the lost milk production and dead cows easily cost them tens of thousands of dollars—perhaps even a quarter-million dollars.
The link between their salty water and the cows’ health was never proven. Garrett Oetzel, a professor at the University of Wisconsin who studies animal nutrition, said in a recent email that he’s “highly skeptical” that sodium could have been high enough to cause health or production problems in dairy cattle.
The Sweeneys’ animal nutritionist, Tim Smithling, said he’s sure the salt was responsible for the problems on the Sweeney farm. At one point, he noticed that cows were eating snow rather than drinking water, which was so salty that when he went to drop some ice in his coffee during one visit he noticed salt had built up in the bottom of the Sweeneys’ ice tray.
“I thought in this case it was pretty clear,” Smithling said.
If nothing else, the state, which has provided bottled water to other homeowners with salty water, seemed totally incapable of dealing with allegations that it had ruined a whole farm’s water supply.
“You can’t go buy bottled water for a herd of dairy cattle,” Smithling said.
There’s a similar case in Phelps, where more than 80 cows died at a farm along a stretch of Thruway north of the Finger Lakes. In that case, the Thruway Authority concedes its road salt is in the farm’s water, but argues there are other reasons the water might be as salty as it is and other reasons the cows might die. The case is still pending.
When the Sweeneys finally got a verdict, in 2018, Saratoga Springs-based Judge Francis T. Collins didn’t rule one way or the other on what killed the cows or any of their allegations.
Instead, the judge said the Sweeneys had missed a filing deadline somewhere along the way. As a result, Collins threw the whole case out and the state was off the hook.
Ben’s son Brian, who owns the farm now, figures the state won because it had to win. Otherwise, who knows how much New York State would owe not just the Sweeneys but countless others across the state?
“It’s a case they can’t afford to lose,” Brian said.