City suffers setback in bid to throw out parent lawsuit against toxic PCBs in schools

September 4, 2012 By Mary Frost
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Just in time for the start of the school year, a  judge gave parents a boost in their fight to rid their kids’ classrooms of dangerous chemicals.

On Wednesday, Magistrate Judge Cheryl L. Pollak rejected New York City’s argument to dismiss a parent lawsuit demanding that the city quickly remove old lighting fixtures from classrooms, many of which are leaking toxic PCBs (polychlorinated biphenyls).

In a 64-page opinion, Judge Pollak rejected every ground upon which the city moved to have the case dismissed and recommended that the judge overseeing the case, Judge Sterling Johnson, Jr., deny the city’s motion for dismissal. (Magistrate judges assist United States district court judges.)

In one argument, for example, the city claimed that allowing the parents’ suit to proceed would interfere with a deal already worked out with the EPA.  The judge found, however, that the agreement between the city and the EPA did not cover the contaminated lighting ballasts, but rather PCB-containing caulking in school windows.  

Lighting ballasts and caulking installed between 1950 and 1978 contain the now-banned PCBs, which have been linked to cancer, respiratory, endocrine, reproductive and immune disorders.

In 2011, the EPA found actively-leaking ballasts in 93 percent of examined New York City schools.

About half of the city’s contaminated schools are in Brooklyn, including 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; Brooklyn Secondary School for Collaborative Studies; Khalil Gibran International Academy and hundreds more.

Many parents have decided not to wait for the city to determine if their kids’ classrooms are contaminated. In one example, after months of writing letters, involving local representatives and sending photos of dripping lighting fixtures to this newspaper, parents at P.S. 146 Brooklyn New School and M.S. 448 Brooklyn Secondary School for Collaborative Studies finally received a promise from the city to remove the fixtures this past June.

New York Lawyers for the Public Interest (NYLPI) filed the lawsuit on behalf of a parent group, New York Communities for Change (NYCC) in the summer of 2011.

“We are very pleased that the new school year begins with this very positive development in parents’ quest to rid NYC public schools of toxic PCB lights,” Christina Giorgio, staff attorney, New York Lawyers for the Public Interest said via email.

“Magistrate Judge Pollak’s recommendations are a significant breakthrough for the case,” she added. “If Judge Johnson adopts them, the case will move forward and the City will have to account for putting children’s and school staff’s health at risk by refusing to address these leaking toxic lights in a timely manner.”

NYCC parent leader Regina Castro said she was thrilled. “This suit is about protecting the health of our children and the school staff from exposure to one of the most toxic chemicals on the planet. The City needs to be nervous for not removing the PCB lights from our schools decades ago.”

DOE is in the second year of a ten-year plan to remove the contaminated fixtures — an effort that the city says is groundbreaking but which advocates say is far too slow. When the timeline was announced, Miranda K. Massie, director of litigation and training for NYLPI, told the Eagle, “Ten years is an absurdly long time frame, given the risks these lights pose to children’s health.”

The city claims that “there is no immediate health concern and health effects from long term exposure to the air in school buildings are unlikely to occur at the PCB levels seen in the NYC schools,” but many health experts dispute that claim. The effects of PCBs on the reproductive health of girls and female teachers is especially troubling, experts say, because the chemicals accumulate over time and can stay in the body for decades.

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