Gotham Gazette

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As City Leases Industrial Sites for Schools, Concern About Safety Builds

green infrastructure
After 20 years, the city has determined that the site of the Bronx New School in Bedford Park is contaminated and so has shut the building.

The heat is on the Department of Education this summer, after environmental tests at a Bronx elementary school revealed yet another case of contamination.

Just five weeks before the start of the new school year, parents at PS 51X, known as the Bronx New School, received surprising news from the Department of Education. In a letter dated Aug. 5, the department announced that it was closing the current building and moving the school to an undisclosed location. Air quality tests had revealed unsafe levels of trichloroethylene (TCE), an industrial solvent. Although the New York state Department of Health stated that there were "no immediate medical concerns for students and staff," the city determined that adequate remediation could not be completed before the school starts in September.

The city leased the Bedford Park property, a former industrial site, in 1991. For two decades, it has operated as a school; but some parents now say that their children have complained of chronic headaches.

PS51X now joins a growing list of schools across the city that may be toxic. Under current law, the city can lease property and open a school on it without notifying community members, or making public any concerns about environmental hazards in the area. With approximately 96 schools throughout the city on leased properties and more in the pipeline, this could affect tens of thousands of children.

The Hazard in the Bronx

Many parents had no idea Bronx New School sat on a former industrial site. According to the city, the building's lease came up for renewal, triggering the environmental tests. Initial sampling occurred in January and found levels of TCE 10 times higher than the health department's standard for safety. A second round of tests, conducted in March, sampled the soil vapor beneath the school's basement floorboards, finding levels of TCE more than 10,000 times than the limit set by the state.

Now, parents, teachers and environmental advocates are demanding to know why the city waited so long to move the school. They will have the chance to ask such questions at a meeting with schools Chancellor Dennis Walcott scheduled for this Thursday, Aug. 18 at 6 p.m. at the Bronx High School of Science auditorium (75 W. 205th St.).

Education department spokesperson Marge Feinberg explained that the DOE waited for final scientific determination on the tests, which came in mid-July, before making a decision about relocating the school. She also emphasized that the highest levels of TCE were found under the building, in an area not used by teachers or students. But environmental advocacy groups worry that TCE vapors could have been migrating upward into classrooms from underneath the floor for some time.

Feinberg maintains that the city is "very conservative" when it comes to making sure schools are safe for occupancy. "Since the first term of the Bloomberg administration, we have renewed more than 65 school leases, and 51X is the first one where environmental conditions have caused us to abandon the lease renewal," she said. The city will conduct environmental audits on another 31 leased school sites over the next eight weeks, though it has not made a list of those schools available.

According to Michael Mulgrew, president of the United Federation of Teachers, before 2003 the city did not necessarily conduct environmental investigations when it leased properties. It is unclear, then, whether the Bronx school had ever been tested before now.

Transforming Brownfields into School Fields

Placing schools on former industrial properties is not a new practice. Over the past few decades, the city's own school buildings have reached and even exceeded capacity while other available space has become increasingly scarce. Former industrial properties are often the only sites large enough to accommodate new school buildings. "Our leasing program has been extremely successful in identifying sites for new school build-outs in districts where finding new school construction sites has been extraordinarily difficult," said Feinberg. Over the years, the education department's construction arm, the School Construction Authority has spent billions of dollars to remediate toxins.

However, a growing number of parents and advocates question whether, in its haste to make good on promises to reduce overcrowding, the School Construction Authority takes too many shortcuts. In particular, they charge that the city deliberately keeps the public in the dark when it comes to remediation plans. Lenny Siegel of the Center for Public Environmental Oversight, an independent consulting firm that has been called in to evaluate several New York City school sites, told the Daily News, "Someone should be on the ball making sure the air, water and soil are safe."

A Tales of Two Schools

At some schools, they are.

Last September, the city opened the Mott Haven Educational Campus, the Bloomberg administration's largest school construction project to date. A four-building site, the campus spans six acres and seats 2,000 students. It sits on a site purchased by the city that once contained a rail yard, a laundry and a plant that made gas from coal.

The project sparked controversy from the start. Both the Public Authorities Law and the State Environmental Quality Review Act require the city to solicit public comment and approval from the City Council on its plans for constructing on publicly owned properties and managing their environmental issues. In Mott Haven, community and City Council members argued that the city's plan for mitigating toxins was inadequate. Council members refused to approve it until the city provided for more intensive environmental study and remediation.

green infrastructure
The building of the Mott Haven Educational Campus in the Bronx –- on the site of facility that once made gas from coal –- prompted immediate concern and action by the courts and City Council.

Eventually, the Department of Education spent $30 million to clean up the Mott Haven site. But community members continued to oppose the project, contending that the city kept them in the dark about long-term plans for maintaining and monitoring contamination there.

In 2007, the New York Lawyers for the Public Interest, acting on behalf of the Bronx Committee for Toxic Free Schools, a coalition of parents, neighborhood residents and community organizations, successfully sued the School Construction Authority and the Department of Education for violating the Public Authorities Law and the State Environmental Quality Review Act by not disclosing a Site Management Plan. This July, a state appeals court unanimously uphelda lower court ruling that, indeed, the city violated state environmental law in building the Mott Haven campus.

No such ruling is possible for the Bronx New School, however. Unlike Mott Haven, the city leased, rather than purchased that school property. Although the School Construction Authority must test and clean all sites before opening schools on them, when it comes to public information and oversight, leased and owned schools are not at all equal.

Leased sites fall through a gap in the Public Authorities Law, known as the "leasing loophole." The courts have interpreted the law as applying only to sites that the city owns and not those that it leases. In a nutshell, that means that leased schools do not require an environmental review under the State Environmental Quality Review Act , nor does the city need to make public its plans for building, remediating or monitoring those schools. As a result, "Parents, school staff and community members often have no idea that a leased school site sits on top of contaminated property and, more importantly, what the SCA has done to eliminate any health risks," said Dawn Philip, a staff attorney with New York Lawyers for the Public Interest who handled the Mott Haven case.

Falling into the Leasing Loophole

The Department of Education plans to create 30,000 new school seats over the next five years. By 2014, leasing will meet one third of its total capacity needs. That means one third of all city's schools will be subject to the leasing loophole.

The loophole first attracted attention in the 1990s when the city leased a former dry cleaning plant to house PS 141 in Harlem. The city spent millions of dollars converting the property into a school, but it opened it before environmental testing was completed. Within a week, tests revealed levels of perchlorethylene, or PCE, up to double the state's acceptable levels. The school shut down and has never reopened.

In another example, Mary McKinney walked out of her house in the Soundview section of the Bronx one day in 2004 to find construction crews. They were working on the former site of a military contractor that had generated tons of toxic waste including lead and industrial solvents. To her surprise, McKinney, who was a member of her community board at the time, learned that the land was slated to become a 1,000-student school, the Soundview Educational Campus. The education department had leased the property and the city's deputy mayor for education -- and now chancellor -- Dennis Walcott, had quietly signed a zoning waiver so the city could locate the building in an area zoned industrial -- all without any public notification.

Community members along with Lawyers for the Public Interest and then New York State Sen. Eric Schneiderman convinced the School Construction Authority to commission an independent environmental review of the site. According to the New York Times, testing revealed levels of mercury, chromium, lead, arsenic and other toxic substances much higher than state standards allow. Yet, the state health department determined that the levels did not pose immediate health risks. The campus remains open.

More recently, in 2009, Inwood parent Susan Ryan discovered that her son was zoned for P.S. 18 and P.S. 278. When she went to look at the schools, she found that both are adjacent to a carwash and within a block of the Kingsbridge bus depot, a Department of Sanitation garage and at least six auto-body repair shops. Ryan contacted Dawn Philip at Lawyers for the Public Interest and asked for help in filing a Freedom of Information Law request. The request revealed that "an oil spill at the school sites was reported to the [state] Department of Environmental Conservation in September 1999, yet due to a backlog, it was just assigned to an inspector [in 2009],Ryan wrote in a 2009 op-ed for the Daily News.

The construction authority agreed to hire Siegel's Center for Public Environmental Oversight to conduct an independent review of the school. The report found that current air quality levels were safe, but that the site carried significant risk of exposure to contaminants. It recommended careful, ongoing monitoring to ensure that neither vapors from the oil spill, nor other nearby contaminants migrate into classroom areas. As of now, it remains unclear whether and to what extent the School Construction Authority has taken up those suggestions, as the agency is not required to publicize such information.

Looking at the Long-term

While Ryan and other parents are relieved to hear that their children face no immediate dangers, they still have concerns. Because the leasing loophole allows the city to circumvent certain public notification processes, parents and advocates worry that there is no way to ensure that their children and others throughout the city will remain safe from contamination over the long-term. In some cases, even low-level exposures can cause harm, if they occur over long periods of time. "Why do we have to wait until our children are exhibiting symptoms of illness before we take action?" asked Ryan.

"We have teachers who are in these schools for years and years, we have students who are in these buildings for much of their childhood. So to answer parents' concerns by saying 'there's no immediate risk' misses the point," Philip agreed.

Take, for instance, PCBs, another toxic school issue that made major headlines this year. The federal Environmental Protection Agency maintains that the high levels of PCBs in lighting ballasts and caulking at multiple city schools do not constitute an immediate danger to students or school staff. Yet, the agency also pointed out that prolonged exposure to PCBs can cause brain damage or cancer in students and their teachers.

Similarly, the EPA associates long-term exposure to high levels of TCEs, such as those found in certain places at the Bronx New School, with disorders of the central nervous system and several types of cancers in humans, especially of the kidney, liver, cervix and lymphatic system.

Ensuring that toxins stay contained is, then, crucial, especially as contamination remains below the ground at most of these sites.

"The trick is to keep the protections in place over the life of the contamination and the life of the school," said Siegel. "Thus continuing vigilance is required to prevent exposures." That kind of vigilance only happens if the public knows what is going on.

Turning up the Heat

Philip and her colleagues at New York Lawyers for the Pubic Interest have been working with state Assemblymember Catherine Nolan and others to pass a bill that would amend state law to ensure that schools on leased property undergo the same community notification and City Council review processes as schools on city-owned land. The bill has come before the State Assembly several times and passed, but has gotten caught up in the State Senate. Philip remains hopeful that public pressure is growing to demand reform.

In the meantime, advocacy groups are working to identify and track the 31 leased schools sites currently slated for environmental testing. They also hope for a large turnout at the Aug. 18 meeting about PS 51X.

More generally, at any school that faces potential contamination, "Parents can request indoor air or an explanation for why it is not necessary to do any sampling," Siegel said. They can also pressure the city to hire an independent firm to analyze sampling results and to make all information public.

"Similar to the PCBs issue, this is fundamentally a right to know issue," Philip said, "We want new schools as much as anyone else but we also want safe and healthy schools. Children's health should not be compromised for the sake of expediency."

Melissa Checker is associate professor of urban studies at Queens College, CUNY and of anthropology and environmental psychology at the CUNY Graduate Center.

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