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Court rules that NYC School Construction Authority violated environmental laws, but giant loophole still puts kids at risk

August 19, 2011

A New York appellate court decision issued in July found that the New York City School Construction Authority (SCA) had violated the State Environmental Quality Review Act (SEQRA) by failing to take a “hard look” at the environmental impacts associated with the Mott Haven School Campus project.

The Mott Haven School Campus.

The Mott Haven Campus, which is located in the South Bronx and opened in the fall of 2010, consists of four school buildings with capacity for more than 2,000 middle and high school students. It’s located on a former industrial property, however, and concerns about toxic contamination have been a point of controversy for years. Part of the property was designated for remediation under the state Brownfield Cleanup Program (BCP) in 2005, and the city ultimately spent more than $30 million on the clean-up. Still, it’s not entirely clear that the property’s soil and groundwater contamination problems have been completely eliminated.

The SCA issued a final environmental impact statement (EIS) for the Mott Haven project in 2006 but it was deemed inadequate by the Bronx County Supreme Court two years later. The judge in that case agreed with the plaintiffs, a group of parents and community members, who claimed that the SCA had to develop comprehensive longterm monitoring and remediation procedures as part of the EIS. Omitting consideration of the longterm liabilities and possible latent defects caused by industrial contaminants left on the property, the judge said, amounted a failure to take a “hard look” at the project’s environmental impacts.

The First Department affirmed this ruling in July, rejecting the SCA’s claim that it didn’t need to issue a supplemental EIS because it had already devised longterm management strategies in a site management plan required under the BCP. As the court explained, the BCP didn’t cover the entire Mott Haven property, and even if it did, the site management plan couldn’t function as a substitute for a properly prepared supplemental EIS. Nor could the SCA, as it argued, defer consideration of longterm monitoring measures until it completed the BCP remediatton. “SCA’s participation in the BCP did not exempt the project’s environmental impacts from SEQRA scrutiny,” the court explained, “and under SEQRA it was impermissible for SCA to omit a known remediation issue from the EIS with the idea of taking up that issue at a later date.”

The Mott Haven decision is an important win for community members and public officials who have long criticized the SCA for withholding information and discouraging public participation in the school construction planning process. But the decision doesn’t begin to address a much larger problem with the SCA—namely, a loophole in the Public Authorities Law that lets it avoid community participation, city council review, and SEQRA requirements altogether when it leases school facilities instead of commencing new construction or using city-owned property. The loophole was officially recognized in a case decided by the First Department in 1994, but the legislature has yet to amend the Public Authorities Law to restore the oversight and accountability requirements for SCA projects located on leased land.

Unfortunately, more and more New York City schools are facing problems related to toxic contamination. The lack of large undeveloped sites has made former industrial properties more attractive for school construction, especially as pressures to stop classroom overcrowding have increased. But parents and teachers shouldn’t have to worry about whether these schools are safe places for children and there should be strong regulations in place to ensure that the properties will continue to be monitored for toxic conditions. Various bills have been introduced over the years to fix the now 17 year old leasing loophole—and legislation is currently being sponsored by Assemblywoman Catherine Nolan—but none of these efforts has yet to receive approval from the state Senate. There’s simply no excuse for that.

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