In what advocates say is the most sweeping legislation in the country to tackle PCB-contamination problems, two City Council bills unanimously passed yesterday will inform parents and school employees of contamination in schools and add transparency to the clean-up process.
PCB, or polychlorinated biphenyl, is a chemical that was widely used as a coolant and dielectric before it was banned it in 1979 for its toxicity.
The first bill 563 requires the Department of Education to notify parents and employees of PCB testing results or if the school uses T12 fluorescents, an outdated type of lamp that often leaks PCB. A second bill 566 asks for detailed reports from the DOE on their progress and plan eradicating PCB from schools.
The effort was spearheaded by Councilmen Vincent Ignizio and Stephen Levin. Ignizio said he was inspired to act after he learned of a T12 fluorescent that was leaking PCB onto a carpet where grade-school children sat. "That's where this started," he said.
Nearly 800 city schools — built between the 1950s and late 1970s — are likely contaminated. PCB can hurt cognitive development in children, studies show. It also has been linked to cancer and a variety of other illnesses. Exposure to the chemical is particularly dangerous to young girls, who carry the chemicals in their bodies for years and pass them on to their offspring, as well as pregnant women, whose unborn children can be harmed by the exposure.
"Parents deserve to know what type of environment their children are learning in and school employees should be able to walk into their buildings with knowledge, not fear," Council Speaker Christine Quinn.
PCB was first found in New York City schools in 2008, when a New York Daily News investigation found high levels of the chemical in nine schools. In 2009, New York Lawyers for the Public Interest sued the city to have schools officially tested. In the first three schools of the pilot study, all were found with dangerously high levels of the chemical in the T12 lights and caulking.
While the sources of PCB were removed from the three schools, other schools built during the so-called PCB era (the 1950s to 1979) have not been officially tested. The EPA advised an expedited removal of the T12 lights and later recommended an immediate fix. Then Deputy Mayor for Education Dennis Walcott (who is now the city’s school chancellor) asked the EPA to reconsider their recommendations, noting that the “theoretical risk of health impacts” was too low to justify what they estimate to be a $1 billion dollar clean-up. The EPA rejected this, and began testing schools independently, finding 93 percent of tested classrooms to have contamination.
Presently, a DOE spokesman explained in an email, T12 lighting fixtures are inspected for leaks and if found, they are immediately removed and notice is given to the community of the potential PCB risk and the plan for removing the source.
“As part of our comprehensive plan to replace all lighting fixtures in more than 700 school buildings within 10 years, we notify parents and the school communities where we have observed leaks and about the progress in removing the fixtures,” a statement read. “We are committed to updating this material on the DOE website and keeping parents and school communities informed about this issue.”
Health advocates and DOE critics say the ten-year plan isn’t fast enough. "We recognize it can't happen overnight, but you can't put a price tag on the health of our children,” New York Lawyers For the Public Interest's Christina Giorgio said. She and other members of the “Right to Know” Coalition lobbying against PCB contamination are asking the city to take care of the issue within 2 years. NYLPI has worked for years to pressure the DOE to rid schools of PCB; Giorgio is an attorney on their Environmental Justice team. They currently have a suit pending in federal court, where they hope to have a court order to remove the T12 lights more quickly.
Michelle Chapman's ten-year-old daughter has attended two schools with the T12 fluorescent lights. During the school year, Chapman says her daughter has terrible headaches and fatigue. In the summer, her daughter's symptoms abate. Chapman believes that the exposure to PCBs is why her daughter is sick; she has scheduled a CAT scan and blood tests to confirm.
She hopes that the Council bills will inform and motivate parents to advocate for and expedite the clean-up of contaminated schools. "When they realize [the health risks] they're going to be mad as hell," she said.
“When you have a child as young as Kindergarten they are at the most critical time in their life to determine how healthy and how intelligent they will be.” Giorgio said. “This impacts intelligence, this impacts every system of the body.”
Quinn said that the bills will inform and empower parents and employees so that they are able to advocate for themselves.
"If you find out that your child is being exposed to highly toxic chemicals, you’re going to do something about it, you’re going to demand action," said Giorgio. "We feel that this empowers parents to demand the next step which is to remove these lights – not in ten years – but actually in an expedited time frame of two years,” Giorgio said.
She notes these bills are, "Important first steps and important first victories," towards eradicating PCB, but that there is "more that needs to be done about it. These lights need to be removed and they need to me removed immediately."
In addition to the PCB bills, the City Council also voted to require landlords to update expired Carbon Monoxide detectors with new ones that emit a beep when they are no longer functional, something the current legislation does not mandate.
Communities across the state have passed legislation banning the controversial practice of hydraulic fracturing. The movement brings up questions of home rule and is being followed closely by the natural gas industry. Cuomo administration efforts to open the New York State section of the Marcellus Shale to drilling will require hydraulic fracturing, which critics say poses a serious threat to the safety of surface and underground water sources, and causes other environmental problems. Advocates of the process say it will boost upstate economies.
According to a list compiled by Keuka Citizens Against Hydrofracking, fifty-four upstate communities –spanning 14 counties and including the cities of Albany and Buffalo- have permanently banned or placed a moratorium on hydraulic fracturing and related activities within their boundaries. And more bans are on the way. Six upstate counties (Dutchess, Onondaga, Ontario, Sullivan, Tompkins and Ulster) have banned hydraulic fracturing on all county-owned lands. The practice is already restricted from the New York City and Syracuse watersheds.
Local efforts to restrict hydraulic fracturing have resulted in at least two legal challenges to date and these cases are being watched closely by the natural gas industry, upstate communities and environmental advocates. At issue is the concept of "home rule" and whether this extends to a community’s right to determine if gas drilling will take place in its midst.
Middlefield Township, which is located in Otsego County and includes part of Cooperstown, enacted a zoning law in June that bans hydraulic fracturing, along with other types of high impact industrial activity.
Town Supervisor David Bliss explained that because nearby Lake Otsego supplies the village’s drinking water and the Susquehanna River sits on its western border, the community felt "substantial exposure" to possible risks related to hydraulic fracturing.
"Middlefield has a history of being forward thinking and a lot of citizens became alarmed. We did a lot of research. That (hydraulic fracturing) was something we didn’t want in our area. The general consensus from surveys and straw polls was that 80% were in favor (of a ban)," said Bliss.
A Middlefield landowner who signed a drilling lease now held by Gastem USA has filed suit against the town. At the first hearing on the case in New York State Supreme Court, Madison County, on December 13th, the judge reserved decision and is allowing further written submissions from parties through mid-January. A decision is not expected until February.
The legal challenge to the Middlefield ban on hydraulic fracturing centers on differing interpretations of state law and the question of whether banning an activity is itself a form of regulation. Levene, Gouldin & Thompson, attorneys representing the Middlefield landowner, argue in a statement released to the press that state law clearly places the authority to regulate oil and gas drilling activity in the hands of the Department of Environmental Conservation (DEC). They assert that all local bans violate Environmental Conservation Law 23-0303(2), which preempts local municipalities from passing laws regulating drilling activity.
David Clinton, a lawyer for the Town of Middlefield, responds that “state law says we cannot regulate drilling but it does not say anything about whether we can prohibit it. The law is silent.” He cites a 1987 case in which New York State’s highest court ultimately ruled in favor of a municipality that sought to control gravel mining through its zoning ordinance. Says Clinton, “town supervisors across the state are asking about this case.”
Similar legal action has been taken against the town of Dryden in Tompkins County, which amended its zoning ordinance to prohibit hydraulic fracturing and related activities in August. When announcing its lawsuit, Denver, CO-based Anschutz Exploration Corporation also asserted the preeminence of New York State jurisdiction over oil and gas exploration and development. Anschutz maintained that it, “Does not dispute the role of local governments,” but the corporation, “has commenced this litigation to protect its substantial lease holdings in the Town (of Dryden).”
Arguments regarding the legality of Dryden’s actions were heard in Tompkins County Supreme Court in November and now both sides are waiting for Judge Phillip Rumsey’s decision. Dryden’s town clerk, Stephanie Mulinos, points out that the town’s action had "overwhelming support. We held numerous public hearings." Calls to Chesapeake Energy and Cabot Energy were not returned.
The DEC does not appear to have taken a definitive position on whether communities have the right to prohibit hydraulic fracturing. Lisa King of the DEC press office said in a written statement to the Gotham Gazette that, "A town can pass an ordinance but we do not know if it will be upheld in court given the current provision in the Environmental Conservation Law that states that local regulation of the oil, gas and solution mining industry is preempted except for local jurisdiction over roads or the rights of local governments under the real property tax law. The scope of this preemption must be left to the courts."
Despite the potential for a legal challenge, advocates report that efforts to pass local restrictions on hydraulic fracturing exist in at least 34 other upstate communities. One of these is the city of Binghamton, whose City Council will vote on a two-year hydraulic fracturing moratorium on December 21st. A restriction on drilling in Binghamton would be noteworthy because of its location in the Southern tier of New York, the section of the state considered most promising geologically for natural gas production. Most of the existing bans on hydraulic fracturing are found north of the Southern Tier.
Local communities wishing to control drilling activity have found allies in both houses of the New York State Legislature. Democratic Assembly Member Barbara Lifton of Tompkins County and Republican State Senator James Seward of Otsego County have proposed similar legislation authorizing local governments to address natural gas drilling in their zoning or planning ordinances. An earlier version of Lifton’s legislation, clarifying that home rule gives local communities the right to regulate drilling, has already passed in the Assembly but did not pass the Senate. Senator Seward introduced similar legislation just before the close of the 2011 legislative session and his bill will be re-introduced in 2012. According to Assembly Member Lifton, “We have a very strong tradition of home rule in New York State. It’s in our state constitution that locals have the power to regulate. If it (home rule) applies to gravel mining, it also applies to gas.”
Along with bans enacted by local communities, environmental groups are preparing to take the State DEC to court because they say that the agency has not complied with provisions of its own environmental review process. The DEC released a revised draft of its Supplemental Generic Environmental Impact Statement (dSGEIS) for hydraulic fracturing this September. The public comment period on the revised draft has been extended until January 11th, 2012 because of the high volume of comments that have been submitted.
Katherine Hudson, Watershed Program Director for Riverkeeper, told Gotham Gazette that the DEC committed in 2009 to a thorough study of both the positive and negative socio-economic impacts of hydraulic fracturing for upstate communities. She stated that if the final version of the dSGEIS does not include the level of analysis required by the 2009 scope, Riverkeeper and other organizations will initiate proceedings in New York State Supreme Court to declare the DEC review process legally flawed and deficient, which could require the State to re-do the review process and impact statement.
Deborah Goldberg, managing attorney for Earth Justice’s northeast office, adds that “there is a virtual certainty of litigation” against the State. Goldberg cited other flaws in the State’s impact review process, including the drafting of drilling regulations before the impact statement has first been finalized. She also raised measures taken by other states –such as analysis of air emissions data in drilling areas- which could inform New York’s approach to drilling. "We want New York State regulations to be state of the art -- the gold standard."
But first, the State and its local communities must resolve who has the final say about where drilling can even take place. New York’s tradition of home rule faces a test with broad implications for residents statewide.
While New York City adopts increasingly progressive measures to promote sustainability, at least one "green" group remains unsatisfied. Some community gardeners, charging that the most recent city regulations leave them largely unprotected, fear their plots of land could be snatched away at any time.
The rules, though framed as a gift to gardeners when enacted in September 2010, do not permanently protect existing gardens as an earlier agreement did. While 282 gardens remain protected, the Department of Parks and Recreation and the Department of Housing Preservation and Development reserved the right to swap the protected gardens for other similar space. That and other caveats outweigh any theoretical increase in protection, advocates say.
"We all hoped that the rules would say active gardens would be preserved, but they didn't," said Hannah Riseley-White, a community organizer for the nonprofit organization Green Guerillas. "When you read the text, it really says the gardens are protected, unless we want to sell them."
Close to 200 gardens out of around 450 -- a number that doesn’t include Department of Education gardens -- are vulnerable to sale and development under these rules, advocates say. But, more importantly, they believe, all city gardens ultimately remain in jeopardy because none of the legislation they sought made it into the 2010 agreement. Without laws to protect gardens, those who work on them say, nothing is guaranteed.
"Rules and regulations are only as good at the current administration," said Karen Washington, the president of the New York City Community Garden Coalition. "That's not permanency."
The rules governing community gardens have gone through a number of changes in the past 20 years. As community gardens became increasingly popular in the 1980s and '90s, gardeners wanted to preserve their limited growing space, while real-estate developers craved room to expand. In 1999, the Giuliani administration, which had methodically sold garden lots for housing development, put 119 gardens on the auction block in a single day. Nonprofit groups saved some of the gardens by purchasing them, and then-state Attorney General Eliot Spitzer filed suit to halt Giuliani's wholesale development of the green space. In 2002, freshly elected Mayor Michael Bloomberg settled that lawsuit, reaching an agreement with the attorney general to permanently exempt a sizeable batch of gardens from a bricks and concrete fate.
That agreement promised firm, permanent protection to 198 community gardens and preserved about 100 more Department of Education gardens, while designating around 150 gardens for sale and development. The accord provided an armistice to years of battle over the dwindling open space in New York City.
Or perhaps it was only a ceasefire. The rules expired in 2010, prompting the Bloomberg administration to issue new ones. Under these rules, gardens "permanently" protected in 2002 are now subject to "swaps." As a result, around 250 gardens will remain protected for the foreseeable future, but they won’t necessarily occupy the same space they do now. It is the garden that is protected -- not the land it lies on -- so the garden can technically be relocated with the land it once occupied subject to development.
Christopher Amato, who was lead attorney for the state at the time of the 2002 agreement, cautioned at a 2010 public hearing that this approach threatened to create "nomad gardens." Such gardens, he said, could be "forced to move every few years in response to development proposals until, presumably, the gardeners threw up their hands and abandon future gardening efforts."
Amato added that the 2010 rules were “inconsistent with both the letter and the spirit" of the 2002 agreement, as they would "eliminate or substantially weaken several key provisions."
Aresh Javadi, board member for the Community Garden Coalition, agreed. "Working through the attorney general's [2002] agreement," Javadi said, "it was clear that the 198 community gardens named as parks were to be protected permanently."
That is certainly the impression Bloomberg conveyed when he announced the 2002 deal. "We are providing permanent protection to hundreds of community gardens throughout New York City,” he said then, "and establishing a fair process for reviewing future proposals to develop other garden properties."
Now, though, the city has taken a different approach. When the Community Garden Coalition reminded administration officials of the 2002 comments, Javadi said, “They kinda said, in general that’s true but as long as the overall number is the same we can pick and choose what we'll bulldoze."
Javadi added, "With those clauses, they can do whatever they want to anybody."
The administration, for its part, has said that active gardens have nothing to worry about.
"Parks gardens are not available for development unless the garden is in default or inactive," said a representative for the parks department, who added that no gardens have yet been defaulted.
However the representative added, "Parks community gardens and [those under the Department of Housing Preservation and Development] have slightly different rules. ... Parks licenses gardens for four years while HPD's is only for one year." According to the housing department, it has jurisdiction over 26 gardens.
The fate of one Brooklyn garden highlights the dilemma inherent in the swaps.
Hart to Hart garden sits four blocks north of Tompkins Park in Bedford-Stuyvesant, a quarter block of grass enclosed by a linked fence. It grows mostly herbs and vegetables, and offers composting to its members. Its membership tripled in 2009, according to Green Thumb, the city program that manages, but doesn’t own, community gardens in the five boroughs.
When the city realized that Hart to Hart, though thriving, was one of the 150 gardens assigned to the housing department under the 2002 deal and thus vulnerable to future development, the agency decided to swap it with the Warwick Block Association community garden, a parks department lot that was less active. Now, Warwick is no longer a protected garden, even though it was granted permanent status in 2002.
Margot Dorn, the head contact for Hart to Hart, was largely unaware of the swap's logistics. "There were complicated dealings" associated with it, she said, but the city largely handled it without involvement from the gardeners.
The swap means that Hart to Hart will continue to function as it has, and in the same location, but is now classified as a protected parks department garden. Meanwhile, the Warwick garden became a housing department garden. Since those are not protected, the lot could be developed as housing in the future, leaving the Warwick group without a space of its own and, in essence, possibly shutting down one city garden.
Although the 2010 agreement said only gardens that were no longer active would lose their parks department protection, the city soon extended that to gardens that were merely "less active."
"Warwick was an active garden, but the city felt justified doing that swap in order to preserve Hart to Hart," said Riseley-White.
Despite such struggles, community garden advocates say the 2010 rules do offer some policy improvements.
Now, at least, gardens losing their status have some warning. Notification goes to two people affiliated with the garden instead of one, helping to prevent communication snafus. And upon receiving such notification, groups now have 30 days to turn the situation around by proving their lot's viability. If they clean up messy weeds or increase community participation, the gardeners can save their lots.
Also, the new agreement affords some protections to any new gardens that may come in to existence, whereas the old one only applied to those established before the 2002 agreement.
And, says Javadi, the recent disputes have only energized gardening activists. His group is gathering documents that it hopes will prove which gardens are protected, in order to make that information widely available to the public.
"We really need to know exactly which gardens are the permanently protected ones," Javadi said. "Then, if any are impinged upon, we will very, very aggressively go after any agency that wants to hurt the community and its gardens."