NYC Violated Law by Building Bronx School on Brownfield, Court Rules

By Patrick Wall on November 12, 2012 2:26pm 

CONCOURSE VILLAGE — The city violated state environmental law when it built a massive Bronx school complex on contaminated land without making public a detailed long-term monitoring plan before construction, the state’s highest court ruled last month.

The ruling by the New York Court of Appeals ends a long legal dispute between the city’s Education Department and School Construction Authority and a group of South Bronx residents and advocates who challenged the construction of the multi-school Mott Haven campus on a toxin-filled former railyard.

The group, known as the Bronx Committee for Toxic Free Schools, argued that if the city wants to build a school on a polluted site, state law requires it to present in-depth remediation and monitoring plans to the public during the initial environmental review process.

The court sided with the Bronx group in its ruling on October 23, affirming two lower-court decisions.

“At the most basic level, the community said, If you leave contaminants in place, then the DOE and SCA should make every effort to insure that children, parents and school personnel won’t be exposed,” said Dawn Philips, staff attorney at New York Lawyers for the Public Interest, which filed suit on behalf of the Bronx group in 2007.

The school building, which opened in 2010, sits just south of Concourse Village on a 6.6-acre parcel that once housed the railyard, a laundry and a gas plant.

The city decided in late 2004 to build the school on the unused site to relieve overcrowding. Later, tests of the soil and groundwater there revealed a variety of pollutants, including benzene, mercury and lead.

The SCA then developed a state-mandated cleanup plan, which included the removal of 13 feet of soil and the installation of vapor and hydraulic barriers to block toxins from entering the school, according to a DOE spokeswoman.

But those initial plans did not detail how the controls would be maintained or whether the site would be regularly inspected. The 2007 lawsuit argued that the public is entitled to weigh in on the complete set of plans before they are approved.

“State law requires the public to be advised in advanced so that there’s enough time for people to substantively comment on the plan,” said David Berz, a pro-bono co-counsel on the suit with the firm Weil, Gotshal & Manges.

Berz added that the community supported the school’s construction, but wanted to be sure adequate protections were installed and maintained.

Since the school opened, the groundwater has been tested and the soil barriers have been inspected monthly and annually, according to the DOE. Eventually an automated monitoring system will go into effect.

Janet Zaleon, a senior counsel in the city’s Law Department, said the lawsuit did not call into question the validity of the city’s remediation or monitoring efforts.

“The focus of this lawsuit was whether long-term monitoring measures should have been described in the project's environmental impact statement,” Zaleon said in a statement. “The court has now asked that we prepare a supplemental statement to include that information, and we will do so.”

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