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City suffers another setback in PCB case

Brooklyn Federal Court Judge Sterling Johnson Jr. Wikipedia photo

Beooklyn Daily Eagle

The protracted battle between the New York City Department of Education (DOE) and New York Communities for Change (NYCC) over the removal of toxic light fixtures in schools may soon be over. 

Brooklyn Federal Court Judge Sterling Johnson Jr. denied the city’s motion to dismiss the case against it, finding the city’s arguments “disingenuous.”

Between 1929 and 1979, institutions used a class of chemicals called polychlorinated biphenyl (PCB) in various light fixtures and caulking. The harmful chemical was heavily used in many New York City Public School buildings before it was banned in 1979.  Numerous tests and studies have shown that, PCBs cause detrimental health effects.

As the Brooklyn Daily Eagle reported in 2011, the EPA found PCBs actively leaking in 93 percent of examined New York City schools, with about half of the contaminated schools in Brooklyn. Among these were P.S. 8 in Brooklyn Heights; P.S. 9 in Prospect Heights; P.S. 15 in Red Hook; Arts & Letters in Fort Greene; P.S. 29 in Cobble Hill; P.S. 146 in Carroll Gardens; I.S. 98 Bay Academy in Bay Ridge; M.S. 51 in Park Slope; and the Brooklyn Secondary School for Collaborative Studies.

After the insistence of parent and community groups, the NYDOE admitted that PCBs were present in many New York schools and agreed to take measures to remove the danger. The department developed a strategy to remove all PCBs over a 10-year period, although the federal Environmental Protection Agency’s (EPA) strongly suggested that the removal take no more than five years.

The current ruling by Sterling was “for all practical purposes [to address] a dispute over how quickly these chemicals must be removed and to whom the city should be held responsible in that regard,” Sterling wrote.  

However, the ultimate decision by Sterling addressed the issue of why the city was unable to dismiss the case against it. No substantive ruling was made by Sterling as to when the PCB must be removed and who bears the responsibility.

The city introduced a number of “spurious” arguments in an attempt to have Sterling dismiss the case as a whole. The city first argued that the NYCC did not have standing or the ability to bring the case, because the organization could not establish how it was injured from the presence of PCB.  

Sterling found no basis for such assertion. “An organization may sue on behalf of its members,” Sterling wrote. And since NYCC represents students who “not only [are]… required to be in the Schools for approximately 180 days per year, but… are still developing, and are especially vulnerable to cognitive setbacks,” Sterling ruled that NYCC had appropriate standing to sue NYDOE.

Sterling also found instances where the city “mischaracterized the meaning of [legal doctrine].”

"We strongly disagree with the Court's conclusions about our legal arguments,” Michael A. Cardozo, NYC Corporation Counsel, said in a statement. “Nothing is more important than the health of the City’s children, and we have been dedicating extensive resources to address this monumental task.”

“Judge Johnson’s decision not only vindicates parents and advocates who have worked tirelessly to protect children from these toxic light fixtures, it also sends a clear message to the City that its stalling and stonewalling must stop,” said Christina Giorgio, staff attorney with New York Lawyers for the Public Interest, a co-counsel to the suit.

In denying the city’s motion in its entirety, Johnson’s message was clear. “The City sought and obtained leave of this Court to file oversized briefs, only to fill its memoranda with arguments that were often deceptive or illogical. The Court will not begrudge the City its right to zealous advocacy, but neither will the Court abide the City’s insouciant foot-dragging, which, in the end, is all that can be said for its position,” Johnson wrote.

Procedurally, the city cannot appeal Johnson’s ruling.  “We will take the Court's concerns under careful advisement and will continue to advocate for what we believe is an appropriate solution for this enormously challenging issue. We will also continue the City's light fixture replacement program and other PCB-related initiatives as the case proceeds," Cardozo concluded.

March 28, 2013 - 2:30pm


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