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Community Lawyering for Environmental Health in Schools

Eliminating PCBs in New York City

By Christine Appah old fluorescent light fixture

Ten years ago parents and advocates uncovered widespread contamination of New York City public schools with toxic polychlorinated biphenyls (PCBs). Here I detail the community-organizing, legal, political, and legislative efforts led by New York Lawyers for the Public Interest (NYLPI) to remove PCBs from over 700 schools throughout New York City. This case was largely a victory for children and the school community in New York City. However, much remains to be done to abate fully the toxin from schools. Because PCBs were widely used in building materials such as caulk from the 1950s until they were banned in 1979, school districts across the country likely face similar contamination and can look to advocacy in New York City as a model.

Environmental Health in Schools

Parents and advocates are paying increased attention to environmental justice issues in schools. Children are particularly vulnerable to environmental contaminants because their developing organs and respiratory systems are very sensitive to toxic exposures. Children who live in lower-income neighborhoods and children of color tend to grow up in closer proximity to locally unwanted land uses such as major highways and industrial processing facilities. Communities near these sources of pollution often struggle with higher rates of asthma and other health problems. Pollution, combined with the lack of access to green space for physical activity, fewer sources of nutritious food, and difficulty accessing health care, causes serious health disparities for children who live in these overburdened communities.

Environmental health hazards are found not only where children live but also where they learn. Often buildings in environmental justice communities are poorly maintained and may have dangerous levels of lead, mold, or other contaminants. Indoor air quality is a significant issue in children’s environmental health due to the significant amount of time that children spend indoors both at school and at home. Because children are mandated to be in school for a significant portion of the day and for the duration of the school year, school officials have an obligation to ensure that the environment inside the school building is safe. As recent teacher strikes and protests around the country have made clear, years of failure to invest in education have left school facilities in serious disrepair. Older school buildings in particular often harbor unsafe building materials—vestiges of common construction practices that not only are now obsolete but also have become sources of indoor pollution.

PCBs

PCBs—known carcinogens that can have serious health effects on the reproductive, nervous, and endocrine systems—were banned by the Toxic Substances Control Act in 1979. PCBs are very durable—they increase plasticity, do not degrade easily, act as good insulators, and have low conductivity. PCBs can take on various forms—gaseous, solid, and semisolid—making it possible for them to migrate out of their source materials and contaminate the environment. Although their use in construction was phased out, they remain in many older structures in building materials such as caulking. Crumbling caulk or caulk disturbed in construction can create PCB-contaminated dust, but PCBs do not need to be disturbed to give off toxic fumes. Buildings where caulk is present are inherently hazardous because PCBs can volatilize into the air and harm inhabitants through inhalation or ingestion. The Environmental Protection Agency (EPA) defines “PCB caulk” as caulk containing PCBs in concentrations greater than or equal to 50 parts per million.

The presence of PCBs in schools—and the urgent need to remove PCBs—is a legal issue of national scope. The pervasive use of PCBs makes remediation a serious logistical challenge. For example, a school facility in Lexington, Massachusetts, faced so many challenges in attempting to remediate PCBs that the project simply could not occur in a safe manner. Officials decided to rebuild the school entirely. As with any situation involving environmental contamination, questions about responsibility can quickly become legal matters about liability. In 2007, in the first in a series of cases and inquiries about PCBs in schools around the country, the Yorktown (New York) School District filed a lawsuit against PCB manufacturers—Monsanto Corporation, Pharmacia Corporation, Pecora Corporation, and others—to recover monies that the school district spent on remediating PCBs from its schools. The school district alleged negligence and recklessness, strict product liability for manufacturing defects, failure to warn, design defects, and other claims. Monsanto moved to dismiss but lost, and the case settled for an undisclosed amount.

Shortly afterward, the New York Daily News began reporting on its own investigative testing for PCB caulk in New York City public schools. Of the nine schools it tested in 2008, six tested positive for high levels of PCBs. Of the schools tested with unsafe PCB levels, the lowest level found was nearly four times the federal threshold of 50 parts per million. At P.S. 178 in the Bronx, PCB levels in caulk were 2,000 times the legal limit. Families and community members became engaged and rightfully worried, but the New York City Department of Education assured the Daily News that the levels were not cause for action. The NYC Department of Education followed a policy that allowed it to leave PCBs in place unless and until the area in question was under renovation. While federal law required PCBs in concentrations over 50 parts per million to be removed once detected, it did not require testing of areas suspected to be contaminated.

The public school system in New York City is the largest in the nation, with more than one million students entrusted to its care. Over 700 of New York City’s school buildings were built or significantly renovated during the time that PCBs were commonly used in building materials. Advocates quickly began to see the vast scope and complexity of potential PCB contamination in New York City schools.

Call to Action

Concerned parents contacted NYLPI’s Environmental Justice Program for help to organize a meeting to discuss the NYC Department of Education’s response to the PCB findings. For more than 40 years, NYLPI has been pursuing equality and justice for all New Yorkers. NYLPI’s community-driven approach powers its commitments to civil rights and to health, disability, immigrant, and environmental justice. NYLPI combines law, community organizing, and the resources of the private bar to make lasting change where it is needed most. NYLPI’s community lawyering model is a client-driven process that uses all of the skills of our staff to promote sustainable solutions and strategies for neighborhood empowerment. The Environmental Justice Program had been working on environmental health in schools for many years.

Parents were concerned about the lack of information flowing from NYC Department of Education officials to the community, the need for more outreach on the presence of PCBs in schools, and understanding the associated health risks. NYLPI began organizing families in the Bronx by encouraging word-of-mouth and parent-to-parent engagement. The team created a fact sheet to help inform parents about the issue and brought in experts to explain possible exposure and health risks. The team at NYLPI brought together parents and other concerned members of the school community to discuss ways they could collectively compel the NYC Department of Education to begin assessing and removing PCBs from the schools’ infrastructure.

Working with Experts

Experts were a critical part of NYLPI’s ability to inform the community as well as build and litigate a case. NYLPI’s lawyers and organizers sought to pair their skills and knowledge with professionals who could assist with the scientific foundation required for this case. Experts helped assess the potential health risks from PCB caulk and evaluate testing results and remediation methods. By enlisting experts to share their deep background knowledge, the attorneys and organizers were able to make clear arguments based on sound scientific principles. NYLPI developed an excellent working relationship with university scientific researchers, experts from the EPA, and occupational health and safety professionals. Attorneys and organizers routinely called on these experts to interpret and discuss different aspects of case strategy.

Multilevel Legislative Efforts

The NYLPI team reached out to elected officials on all levels—federal, state, and local. The Bronx borough president made public statements in support of the parents’ organizing effort. NYLPI worked on the state level with state senators and assembly members who sponsored bills to amend the state’s education law to require investigations into the presence of PCBs in New York City’s school districts. In addition, U.S. Congress members Joseph Crowley, José Serrano, and Jerrold Nadler introduced the Safe Schools, Healthy Kids Act in 2010. The Act was designed to fund and support schools struggling with the costs of PCB mitigation and abatement. New York City Council members also stepped in at multiple points to call on the city and the EPA to take swift and comprehensive action to remediate PCBs, and Council Member Stephen Levin sponsored laws enacted in 2011 mandating transparency, parent notification, and reporting to the city council about the detection of PCBs, remediation measures, and overall progress.

These legislative efforts helped build public awareness about PCB contamination in schools and served as a platform to engage other environmental justice organizations along with parent groups, teachers, and unions of other affected school workers including custodians. Elected officials offered key input and put public pressure on the City and the NYC Department of Education to resolve the issue as quickly and comprehensively as possible. This type of engagement and momentum would have been difficult to build without the public platform that policy makers willingly provided.

A Litigation Strategy—and a New Discovery

NYLPI coordinated with its base of parents, teachers, and community members to devise a litigation strategy directed at moving the City of New York to proceed with PCB remediation on an expedited basis. Litigation, particularly under the Toxic Substances Control Act, has been the main vehicle for affected communities to obtain wide-scale remediation of PCB contamination. From the Bronx Naomi Gonzalez, whose two children attended P.S. 178—the school with exceedingly high concentrations of PCB toxins in its caulking—stepped up as a lead plaintiff. Concerned and committed to the cause, Gonzalez was exemplary of many parent activists across the city. Her willingness to step forward to represent her community was greatly appreciated. In March 2009 Gonzalez, represented by NYLPI and pro bono cocounsel White & Case LLP, filed a notice of intent to sue the City of New York, the NYC Department of Education, and the NYC School Construction Authority under the Toxic Substances Control Act. Shortly afterward the City began negotiations with the EPA on how to proceed with PCB remediation efforts. When the negotiations did not result in a clear plan to remediate PCB caulk, Gonzalez proceeded with her lawsuit, which was filed in the U.S. District Court for the Southern District of New York. The Toxic Substances Control Act prohibits using PCBs in any manner other than those outlined in the regulations. The very presence of known PCB caulk was an ongoing Act violation that needed to be abated immediately.

By January 2010 the City and the EPA had made progress in negotiations and entered into a consent agreement and final order. The agreement and order required the City to undertake a pilot study to evaluate the effectiveness of various PCB remediation methods in five schools, including P.S. 178 in the Bronx, and on the basis of the results of the study to develop a citywide remediation plan, to be approved by the EPA. Based on the agreement and order, Gonzalez agreed to withdraw her lawsuit. The study and development of remediation efforts would take years, and NYLPI endeavored to remain involved, although, without an active lawsuit, we were no longer representing a party to the case. NYLPI continued to request information from the EPA and kept abreast of the progress around testing and reporting. While NYLPI was no longer a party to the litigation, the community that it represented had a vested interest in the outcome. This strategy proved helpful in preparation for the next case.

The NYC Department of Education estimated that contaminated light fixtures were present in over 600 schools throughout the city.

The first step in the pilot study was to determine the existing level of PCB contamination through air sampling and wipe tests for PCB dust. Initial air sampling results revealed concentrations of PCBs in the air much higher than expected from PCBs in caulking. What soon became clear was that the primary source of PCB contamination was actually aging fluorescent light fixtures having ballasts insulated with PCBs. Ballasts are portions of light fixtures that have a limiting effect on the current that runs through the light fixture. These light fixtures were installed decades earlier and were becoming increasingly decrepit and inefficient. Their breakdown resulted in a steady release of PCBs, sometimes through contaminated liquid leaking directly from the ballasts. PCBs were also released through off-gassing and “smoking events” in which the light fixtures would emit smoke and high concentrations of PCBs. The decaying light fixtures would have to be removed immediately—and the NYC Department of Education estimated that contaminated light fixtures were present in over 600 schools throughout the city.

By December 2010 then-EPA Region 2 Administrator Judith Enck wrote to then-Deputy Mayor Dennis Walcott to urge him to have the NYC Department of Education expedite the removal and replacement of PCB light ballasts. The EPA posted a resource webpage and provided guidance documents for school administrators and maintenance personnel to remediate PCB-containing fluorescent light ballasts. Further testing in the winter of 2011 revealed alarmingly high levels of PCBs. The City proposed a plan to remove all PCB-contaminated light fixtures over the next 10 years, citing the expense and extensive nature of the work as reasons for the extended time frame. Parents, educators, and school staff found the 10-year timeline beyond unsatisfactory, given the acute nature of exposure from leaking and smoking light fixtures. NYPLI reformulated its strategy and began to reorganize its base of supporters to demand faster removal of PCB light fixtures.

Change in Strategy

Advocacy around the light fixtures became a campaign of its own, and NYLPI advanced a comprehensive advocacy strategy that involved media and press coverage, along with community organizing meetings. Organizers named the campaign “PCB Lights Out” and engaged a broad group of stakeholders, including the union representing custodians who had been changing contaminated lights for years without knowing that they contained dangerous chemicals. Our stakeholders included community groups engaged in parent and community organizing such as New York Communities for Change. Also joining were 41 New York City Council members who advocated an expedited removal time frame through a letter of support to then-EPA Regional Administrator Enck. Community groups, the EPA, and City Council leadership demanded that the PCB ballast-removal project be completed within five years. When the City refused an expedited timeline, advocates and NYLPI decided to sue again.

This time an organization, New York Communities for Change, served as plaintiff to represent the interests of its members—a large swath of the affected constituencies throughout the city. New York Communities for Change is a grassroots community organization that has, throughout all five boroughs, thousands of diverse, multilingual members who care deeply about fighting against injustices in their communities. New York Communities for Change was able to tap into its broad base to mobilize membership to take on the issue of PCB contamination in schools. In April 2011 NYLPI filed a notice of intent to sue on behalf of its client, New York Communities for Change, for the expedited removal of PCB lighting.

Represented by NYLPI, New York Communities for Change then proceeded with a lawsuit against the NYC Department of Education and the NYC School Construction Authority under the Toxic Substances Control Act and the Resource Conservation and Recovery Act, under the theory that leaks of PCBs from light ballasts were an improper disposal of toxic waste in violation of the law, and sought an order for the immediate removal of the PCB light ballasts. The City moved to dismiss the second lawsuit. In March 2013 the court denied the motion to dismiss in a strongly worded decision, noting that “[w]ith the cognitive development of children at stake, it would have been refreshing to see humanitarian concerns trump the compulsion to delay litigation with quite so many spurious arguments. But some dreams remain deferred.”

Settlement and Remediation

The court’s decision spurred more serious settlement negotiations and formal mediation among the parties. Estimates from private contractors were a key factor in resolving disputes about costs; contractors weighed in on various means by which the City could remove and replace the light fixtures with cost savings due to the increased energy efficiency of new light fixtures over the current aging fixtures. The parties agreed in May 2013 to a time frame for removing and replacing all PCB-contaminated light fixtures in NYC schools by December 31, 2016, within three and a half years—a time frame five years shorter than that originally proposed by the NYC Department of Education.

As part of the expedited plan, the City was required to confer with plaintiff’s counsel twice yearly to give updates and review progress. As the City neared the conclusion of the process, concern about previously remediated light fixtures arose. The City explained that there were light fixtures that had been remediated before certain cleaning protocols for PCBs were put into place. As a result, many of the schools had fixtures that might have PCB-containing fluid staining the area around the fixtures. The City proposed completing the major work as mandated by the court order and proceeding with the search for stained light fixtures during the course of regular maintenance work. NYLPI pushed back on this proposal and instead worked with the City to initiate another round of air quality testing to ensure that if there were any PCB residue in the stains, it was not creating an exposure risk through volatilization into the air. NYLPI helped design the study with input from experts in the field of chemical exposures. The air quality tests revealed no actionable levels of PCBs in the air, and the City proceeded as planned.

The parties agreed to conclude the matter in February 2018, after several years of testing and remediation. Significantly more schools than originally estimated were identified as containing PCB-contaminated light fixtures, and the City spent nearly $800 million on the light-removal project ($110 million less than projected). Overall the City was even able to derive an additional benefit from the plan by realizing significant cost savings from the new energy-efficient light fixtures. Removal of the light fixtures, which were the highest emitters of PCBs into the school environment, was a major victory for children, parents, and the entire New York City school community.

Addressing Remaining PCB Caulk

While the PCB light-fixture litigation and remediation proceeded, the City continued its PCB caulk pilot study under the terms of the consent agreement and final order with the EPA. The study found that implementing “best management practices” for cleaning and inspecting caulk, combined with removing light fixtures, brought PCB air concentrations below health guidance levels in three of the five pilot schools. In one school, levels were already quite low and removal of light fixtures had a minor effect. Another school, P.S. 199, located in the Upper West Side of Manhattan, continued to have high concentrations of PCBs in the air even after light-fixture replacement and various remediation efforts for caulk, including encapsulation of caulk and actual removal of contaminated caulk. The school went through numerous rounds of remediation and testing, installation of carbon filters, and other efforts before bringing PCB levels within guidance levels.

Despite the success with light fixtures, to this day PCB-contaminated caulk has not been handled in a consistently meaningful way throughout New York City. The City continues to negotiate with the EPA to develop a citywide remediation plan. Early proposals and drafts indicate that the City will not be required to do any large-scale testing of caulk or air for PCBs, nor will it undertake removal or encapsulation of caulk. Ongoing PCB management in the New York City school system will use best management practices to ensure that caulk is not deteriorating or disturbed and to ensure that children are not exposed to dust or dirt inside schools that may be contaminated with PCBs. The practices also include testing a pilot passive air sampling method that could allow more widespread monitoring of PCB levels in the air if the technology is refined and effective, sampling air in a limited number of schools constructed in a similar manner as P.S. 199, and ensuring that heating, ventilation, and cooling systems (in the limited number of schools that have such systems) are functioning properly.

Throughout the PCB caulk pilot study and remediation plan process, NYLPI and concerned members of the school community have advocated continued and more widespread air sampling to ensure that PCB levels are within health guidelines in all schools suspected to contain PCB caulk, and better ventilation systems within schools to ensure that children are not exposed to stagnant, contaminated air. NYLPI and our community partners will continue to advocate these safety measures for children in schools.

***

Community lawyering requires advocates to take a holistic, client-driven approach to social justice issues. Successful campaigns require comprehensive strategies, combining the power of litigation, organizing, policy advocacy, media, and community education. These cases would not have been possible to litigate without a community of concerned families, schools, experts, legislators, and advocates. Those advocates who are interested in school environmental health issues must be prepared to build strong coalitions and enlist the help of experts in the field. In 2017 NYLPI was honored by the EPA Region 2 with an Environmental Champion Award for its work on the PCBs campaign. We are grateful for the opportunity to help advance the goals of environmental justice in our schools.

Christine Appah

Christine Appah
Senior Staff Attorney, Environmental Justice Program
New York Lawyers for the Public Interest
151 West 30th St., 11th Floor
New York, NY 10001
cappah@nylpi.org

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