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Leased Schools Skirt Toxic Loophole  
by Lauren Dockett and Alyssa Vine

August 24, 2009

 As the city turns old, polluted factories and industrial sites into schools, a gap in environmental law could be endangering New York City schoolchildren, lawyers and community leaders say.

The Soundview Educational Complex’s red and yellow building stands out brightly against a drab background of smokestacks and barb-wired lots.

About 600 New York City high school students attend the school, which is located on the former site of the Loral Electronics Company, a military contractor. The school’s neighbors include an active garbage dump, a fertilizer manufacturer, and empty lots used for parking trucks that carried waste products and pesticides to combat the West Nile virus.

“This is one of the most toxic sites in New York City and the SCA [School Construction Authority] decided to lease it with a shoddy review,” said Dawn Phillip, an attorney for New York Lawyers for the Public Interest. “There was no oversight for this.”

If the School Construction Authority had wanted to build a new school on this hazardous site, it would have had to go through the process mandated by New York State’s Environmental Quality Review Act. It’s possible they would have been subject to more rigorous expectations for clean up as well a requirement of greater transparency with the public about their plans.

Originally adopted as a way of identifying consequences of development on the environment, SEQRA requires state agencies to complete an environmental impact statement for construction projects and make the information, including cleanup and monitoring plans, public for community review and input.

But because Soundview is a leased property, SEQRA does not apply.

The School Construction Authority conducted its own environmental review that revealed significant levels of toxins and developed a remediation plan, according to a Public Advocate’s report from 2007.

Neither the review revealing toxins on the site nor the remediation plan was open to public comment.

The same report notes that until construction was underway, the local community was not even aware of plans for a school on the site.

Public Concern

Residents of the Lafayette-Boynton housing project across the street had been concerned about the Loral site for years. Mary McKinney, founder of the Concerned Residents Organizations, formed in 2000 to respond to quality of life issues in the area, led a charge demanding information and requesting that the School Construction Authority hire an independent consultant to review the SCA’s assessment and safety plans.

According to McKinney, the parents of students attending Soundview have been left in the dark.

“These aren’t kids from our community,” she said. “They ship them in from the West Bronx and from other parts of town. McKinney has tried leafleting parents and students but said she has been turned away by security.

“When I try to give leaflets to the kids they say, ‘Are you Miss Mary? We’re not supposed to take anything from you.’ ”

Ultimately, the SCA complied with the Concerned Residents Organization’s requests for an independent consultant to weigh in.

Arsenic, Mercury and Lead

The School Construction Authority’s initial review found elevated chromium and mercury levels in the soil, and showed high levels of arsenic, barium, cadmium, chromium, mercury, and lead in the groundwater. Lead numbers ranged from 13,900 to 633,000 parts per billion, while samples of mercury were at 42.5 to 94.2 parts per billion. State standard for safe lead levels is 25 parts per billion, and for safe mercury levels, .7 parts per billion.

With these results, the SCA took steps to clean up the school’s immediate site – one administrative building tucked on a corner of the former Loral plot. An upper layer of soil was excavated and, in various contaminated spots around the site, barriers of clean soil, concrete or asphalt were installed. The rest of the Loral site, not leased by the SCA, remained untouched.

The Public Advocate’s report indicates that because of remaining contamination beneath the barrier, the independent consultant “recommended that the SCA develop a long-term maintenance and monitoring program and take public comments into consideration before implementation.”

A Promise to Check for Seeping Toxins

In 2006, the SCA developed such a program, releasing a memo in February that detailed daily walk-throughs and annual inspections to monitor the presence of lead in the school’s walls and potential seepage of toxins through cracks in the ground’s surface. But despite assurances that the program would produce an annual inspection memo provided to the principal that would then be made available “for distribution to concerned parties,” McKinney and Philip said they haven’t seen any such reports since 2006.

If some of the toxins initially discovered at the site were to become problematic, students and staff could be at risk. Lead and mercury poisoning, for instance, have been linked to kidney, brain and nervous system damage.

Turning Factories  into Schools

The Soundview campus is one of a growing number of former factories and other industrial sites being leased by the city’s Department of Education and repurposed as school buildings. The DOE’s Five Year Capital Plan for 2010-2014 aims to create 25,000 seats.  Thirty percent of the new capacity is planned for leased spaces.

Schools built or leased on or near contaminated sites are no rarity; New York State has more than 200 such schools.

Toxins Found at Other Schools’ Sites

The city has wrestled with contamination concerns at leased properties including P.S. 65 in Ozone Park, Queens, where toxins related to a former airplane parts factory were found, and Harlem’s P.S. 141, which closed in 1997 after fumes originating from the site’s former dry cleaning plant were clearly present. The Information Technology High School in Long Island City is on the site of a former metal plating factory and P.S. 56 was built in Mott Haven, an area of the Bronx butting up against a former coal tar processing plant and railroad depot.

According to Renata Perri Silberblatt of the National Resources Defense Council, “Students and faculty at the Mott Haven schools have complained of asthma, headaches, respiratory problems and rashes.” At P.S. 65 in Queens, students and teachers “developed asthma, nausea, fatigue, persistent headaches, facial paralysis and cancer.”

Public Advocate Betsy Gotbaum expressed concerns about the recently opened P.S. 78 in Hunters Point, Queens, leased in the same development as many properties that participate in the state’s Brownfield Cleanup Program.  Gotbaum also noted that the Art and Leather High School in Queens is located close to a polluted industrial site and on land that housed a tannery.  As with Soundview, the City Council had no opportunity to review environmental assessments and vote on these plans.

Some are suspicious of the city’s choice to lease property, especially when it is also available for sale. According to the NAACP, the city agreed to a 30-year lease for the Soundview property, with a rent of $1 million a year, bypassing an offer to purchase the property outright for less than $9 million. This has led some critics to wonder: Could such action be an effort to avoid the costs and time commitments involved in the SEQRA process?

“The money involved in a SEQRA review is significantly more than what the city would spend on its own review process,” said Phillip. “It’s a much greater investment of finances and time.”

Phillip has heard from some officials that landlords would be reluctant to lease to the city if they had to go through a SEQRA review.

The School Construction Authority, which asked that questions for this article be sent by email but did not respond or return follow-up phone calls, does not appear to be acting illegally in conducting its own environmental impact assessments and implementing its own monitoring plans. But SCA’s tendency to move forward on school siting decisions without bringing the public into the process leaves communities guessing.

“A lot of this is amorphous,” said Philip. “There’s no public comment period, institutional knowledge is hard to share, and unless it’s someone’s responsibility, how can we insure that ongoing plans are implemented?”

A Statewide Issue

According to Claire Barnett, executive director of Healthy Schools Network, questionable leases are common.  “New York City is not alone, it’s just been very noisy lately,” she said.

Barnett described a case in Rochester, NY, where the school district signed a 15-year lease for $1 million annually, only to have the property declared a brownfield by the state.

Community activists like McKinney have advocated for legislation that would change SEQRA and close the leasing loophole, to make schools safer. Two bills currently before the State Legislature would change the law to apply SEQRA indisputably to leased property and buildings.

In past years, similar bills have passed in the Assembly but never made it through the Senate.  This year, the bills’ supporters were hopeful, but the fiasco in Albany dashed the bills’ chances. Neither reached a vote.

Gotbaum’s office recommends that the Department of Education “create a public repository available online that lists all schools on contaminated properties — especially those it leases because these sites are not subject to any public review.”

For Mary McKinney, it’s simple. “They don’t involve the community,” she said. “We are very concerned. We want them to make these places safe.