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9486 in the collection
New York City Is Cited for Insufficient Safeguards at School Campus Being Built on Brownfield
New York Lawyers For The Public Interest, Inc.
151 West 30th Street, 11th Floor
New York, NY 10001-4017
Tel 212-244-4664 Fax 212-244-4570
For Immediate Release:
For More Information Contact:
Monday, November 10, 2008
Dave Palmer: (917) 482-7251
Dawn Philip: (917) 657-5180
*** NEWS RELEASE ***
DECISION ON MOTT HAVEN TOXIC SCHOOLS SUIT;
COURT HOLDS SCHOOL CONSTRUCTION AUTHORITY (SCA)
VIOLATED STATE ENVIRONMENTAL LAW
IMPORTANT PRECEDENT SET—SCA MUST ASSESS LONG-
TERM RISKS (THROUGH SITE MANAGEMENT PLANS)
BEFORE APPROVING SCHOOLS ON CONTAMINATED
PROPERTIES; PUBLIC MUST HAVE OPPORTUNITY TO
COMMENT ON PLANS
In a decision dated October 16, 2008, the Bronx
Supreme Court ruled that the SCA violated the
State Environmental Quality Review Act (SEQRA)
by approving the contaminated Mott Haven
Schools Complex without first detailing a plan
to ensure that on-site protections would be
adequately maintained and monitored. In
essence, the SCA approved a cleanup proposal
that left some contaminants in place at the
site without a detailed plan for ensuring that
children would not be exposed to those toxins
over the long-term. The Court held that this
practice deprived parents, teachers, and
community members of the right to evaluate and
comment on such a plan during the environmental
review process.
"I’m thrilled that parents like me will have
more information, more opportunity to
participate in the school siting process and
ultimately a better shot at getting a strong
cleanup when the City decides to place a school
on toxic land," said Deborah Bryant, a parent
of two children at P.S. 385 (adjacent to the
Mott Haven Schools Complex) and a member of the
Bronx Committee for Toxic Free Schools.
The suit was filed by New York Lawyers for the
Public Interest (NYLPI) in April 2007, on
behalf of the Bronx Committee for Toxic Free
Schools ("Bronx Committee"), a coalition of
parents, neighborhood residents and community
organizations. The law firm of Weil, Gotshal &
Manges acted as pro bono co-counsel.
Petitioners, the Bronx Committee, argued that a
detailed and workable maintenance and
monitoring plan is an essential health and
safety component of any cleanup plan like the
one proposed by SCA and thus should have been
included in the SEQRA-mandated environmental
review process. The court agreed with
petitioners. The cleanup plan for the site
called for partially removing toxins and
relying on environmental controls to prevent
exposure to those that remained. Controls
included capping contamination with two feet of
clean topsoil and installing an underground
ventilation system, as well as a barrier to
prevent off-site contamination from flowing on
to the site.
SEQRA requires a lead agency (here, the SCA) to
take a “hard look” at a proposed action’s
potential adverse environmental impacts and to
evaluate measures that would avoid or mitigate
such impacts. It also requires that the public
have an opportunity to review and comment on
both the impact evaluation and
avoidance/mitigation measures proposed. The
court agreed with NYLPI’s central argument,
stating that the "SCA cannot argue that it took
the requisite ‘hard look’ with regards to long
term maintenance of environmental controls."
“This case sets a strong precedent going
forward; the SCA is on notice that it must
evaluate the entirety of its cleanup plans and
that the community has a right to know how a
contaminated school site will be maintained and
monitored before a site is officially
approved,” said Dave Palmer, the former NYLPI
attorney who filed the suit on behalf of the
Bronx Committee for Toxic Free Schools. "The
environmental review process must include
review of plans for long-term site management,
which in effect means that the SCA will give
fuller consideration to the potential risks of
placing a school on contaminated property
before they approve a site – that will result
in stronger protections for school kids," added
Palmer.
"How a contaminated school site will be
maintained and monitored determines how safe a
community’s children and teachers will be,"
said D. Lee Ezell, Chair of Bronx Community
Board 4 and one of the petitioners in the suit.
"We said all along that the SCA shouldn’t be
allowed to plan for this after construction and
without community involvement. We’re so pleased
that the Court has agreed."
This precedent is particularly important
given the large number of schools expected to
be sited in the near future to address
overcrowding in public schools. According to a
Capital Plan released last week the City
proposes to allocate $3.7 billion for 42 new
school buildings across the City over the next
five years. Given the scarcity of low-cost,
clean land in New York City, it is expected
that a number of these new schools will be on
contaminated property. "This is not an
isolated issue," said Dawn Philip, who
currently represents the Bronx Committee for
Toxic Free Schools and handles NYLPI’s toxic
schools docket. "Just this past May, for
example, the SCA approved three new school
sites all on contaminated property. The
court’s decision is critically important in
requiring that the SCA do everything it can to
mitigate long term exposure."
Given the pressure to add new schools, the SCA
has also turned to converting leased buildings
on contaminated property into new schools.
However, a loophole in state school siting law
allows leased facilities to bypass community
notification and City Council approval. The
SCA improperly relies on this loophole to avoid
the environmental review and mitigation
requirements of SEQRA. NYLPI is currently
working with community organizations and the
State Legislature to remedy this
practice.
By Mireya Navarro
New York City officials violated state
environmental law when they began building a
school complex on a contaminated site in the
South Bronx without first coming up with a plan
to ensure that students and the public would
not be exposed to pollutants in the future, a
state judge has ruled.
A judge said that the city did not properly
weigh health risks at a complex planned for the
Bronx.
The decision came in response to a lawsuit
filed in 2007 by a group of parents and
community leaders trying to force the School
Construction Authority to conduct a more
comprehensive environmental review for the
multischool campus, which is still under
construction in Mott Haven in the South Bronx.
The suit accused the city of going ahead with
the project without a plan to monitor air
quality and check for other environmental
problems after the city cleaned up the site — a
6.6-acre parcel that once contained a railyard,
a laundry and a plant that made gas from coal.
The school agency eventually came up with a
plan, which is now under review by the State
Department of Environmental Conservation.
City officials said on Friday that the court
ruling would not derail construction of the
Mott Haven school campus, a complex of four
secondary schools and athletic facilities
scheduled to open in the fall of 2010.
The plaintiffs’ lawyers said they hoped to meet
with the city to discuss the judge’s order,
which requires the construction authority to
submit a supplemental environmental impact
statement laying out its plan for long-term
monitoring.
The plaintiffs’ lawyers said the ruling could
set a precedent for future construction of
schools on brownfields, polluted sites that
Mayor Michael R. Bloomberg has singled out for
cleanups and redevelopment because they are
among the last parcels of vacant land in the
city.
"It puts the School Construction Authority on
notice that they would be breaking the law if
they don’t put forth a detailed monitoring plan
before the City Council approves the site,"
said Dave Palmer, the lawyer who handled the
suit, filed by New York Lawyers for the Public
Interest.
The ruling was handed down on Oct. 16 by Acting
Justice Patricia Anne Williams of State Supreme
Court in the Bronx, and the plaintiffs planned
to announce it on Monday.
Carrie Noteboom, a senior counsel with the
city’s Law Department, said city officials
disagreed with the decision and were weighing
their options. She said the school construction
agency had provided enough information at the
outset about how the site would be monitored
over time to fully comply with the law, even if
it had not produced a detailed plan.
Ms. Noteboom said it was more practical to come
up with a plan after a cleanup had started so
that the plan "can take into account the actual
conditions at the site after the cleanup is
done." The cleanup at the Mott Haven site ended
in October 2007.
But Mr. Palmer countered that an early plan is
crucial, because an assessment of the needs and
the cost of monitoring may persuade city
officials to modify cleanup plans or look for
another site. "If the City Council has the
information up front, they are in a better
position to demand improvements on cleanups
before they say yes to a site," he said.
In her decision, Justice Williams agreed, and
said the city agency had failed to take "a hard
look" at the long-term risks at the Mott Haven
site.
D. Lee Ezell, chairwoman of Bronx Community
Board 4 and a member of the Bronx Committee for
Toxic Free Schools, on whose behalf the suit
was filed, said she felt vindicated.
"What's at stake here is life," she said.
"There are possible dangers here and you have
to protect the people who use this facility."
As it tries to ease overcrowding, the School
Construction Authority has also leased
buildings on contaminated property to turn into
new schools. Problems have arisen on sites like
the Information Technology High School in Long
Island City, Queens, where increased levels of
contamination were found in the soil beneath
the school after it opened in 2003.
Margie Feinberg, a Department of Education
spokeswoman, said a vapor extraction system had
been installed and the site was being
monitored.
— Mireya Navarro
New York Times
2008-11-08
INDEX OF OUTRAGES
Pages: 380
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