Williamsburg Around the Bridge Block Ass'n v. Giuliani

Citation644 N.Y.S.2d 252,223 A.D.2d 64
PartiesWILLIAMSBURG AROUND THE BRIDGE BLOCK ASSOCIATION, et al., Petitioners-Respondents-Appellants, For a Judgment, etc., v. Rudolph GIULIANI, etc., et al., Respondents-Appellants-Respondents. New York State Assemblymember Sheldon Silver and New York State Senator Martin Connor, Amici Curiae.
Decision Date20 June 1996
CourtNew York Supreme Court Appellate Division

Matthew J. Chachere of counsel (Lucy Billings, Martin S. Needelman and Foster Maer on the brief, attorneys), for Petitioners-Respondents-Appellants.

Jane S. Earle of counsel (Pamela Seider Dolgow and Renee Hill on the brief; Paul A. Crotty, Corporation Counsel of New York City, attorney), for Respondents-Appellants-Respondents.

Frederick J. Jacobs for New York State Assembly Member Sheldon Silver and another, amici curiae.

Before ROSENBERGER, J.P., and NARDELLI, WILLIAMS, TOM and MAZZARELLI, JJ.

TOM, Justice.

The issue raised in this appeal concerns whether the promulgation of a "Protocol" by respondent the City of New York (the "City"), regulating the removal of lead paint from City-owned bridges, is subject to the procedural requirements of the New York State Environmental Quality Review Act ("SEQRA", ECL §§ 8-0101, et seq.), the New York City Environmental Quality Review procedures ("CEQR", 43 RCNY §§ 6-01, et seq.), and the New York City Administrative Procedure Act ("CAPA", New York City Charter § 1041-1047).

In June 1992, the New York City Department of Transportation (the "DOT") began a $1.6 million rehabilitation project on the Williamsburg Bridge (the "Bridge"), which is owned by the City. The vast majority of bridges in the United States, including the subject Bridge, have been coated with lead paint, which contains an extremely high concentration of lead in order to retard corrosion. According to statistics provided by the City, there are 2,062 bridges located within the City's five boroughs, of which the City owns or co-owns 838 (excluding culverts), or approximately 41%. 1 During the renovation and repair of these bridges, the old paint is removed and is, eventually, replaced by lead-free paints.

One method of removing paint from the steel structures is abrasive blasting (commonly referred to as "sandblasting"), which involves directing abrasive particles, propelled by compressed air, against exposed surfaces of the bridge. This method, which is the most efficient, is necessary to reach hard-to-access areas and is also effective in removing "bonded rust", which has become incorporated into the surface of the steel. An inherent problem with sandblasting, however, is that it creates a fine airborne lead dust which can be inhaled and other particles, too large to be inhaled, but which nevertheless can be swallowed and absorbed into the body through the gastro-intestinal tract.

It is well documented and beyond dispute that lead is a highly toxic metal which, when introduced into the human body, produces a wide range of adverse health effects, especially with regard to children and developing fetuses. Petitioners' experts and submissions, unrebutted by respondents, indicate that these consequences include: nervous and reproductive system disorders; delays in neurological and physical development; cognitive and behavioral changes; and hypertension. Most of these physical maladies are irreversible.

Further, it appears that young children are more sensitive to lead exposure than adults, particularly their brain and nervous systems, which are especially vulnerable in their developmental stages. Lead exposure as low as 2 micrograms per deciliter in children under 7 years old lowers IQ, stunts growth and causes behavioral disorders (see, Dietrich, Berger & Succop, Lead Exposure and Motor Development Status of Urban Six-Year Old Children in the Cincinnati Prospective Study, 91 Pediatrics 301-307 [1993]; Bellinger, Stiles & Needleman, Low-Level Lead Exposure, Intelligence and Academic Achievement; A Long-term Follow-Up Study, 90 Pediatrics 855-861 [1992].

The Bridge, on both sides of the East River, spans densely populated neighborhoods. The project, which began on the Brooklyn side of the Bridge, and which utilized an independent contractor hired by the City, involved sandblasting the existing paint on the Bridge in order to remove it. As noted by the IAS court, "[b]y all accounts, the project was a public relations and public health fiasco." (167 Misc.2d 980, 984, 637 N.Y.S.2d 241.) Videotape evidence submitted by petitioners shows a dust cloud emanating from the work area of the Bridge, as well as deposits of debris in a private home and throughout the neighborhood.

In July 1992, apparently as the result of neighborhood residents' complaints regarding lead dust contamination, the DOT suspended work on the Brooklyn side of the Bridge, only to begin work in the same manner on the Manhattan side. After similar complaints were received from the Lower East Side residents, the New York State Department of Environmental Conservation (the "DEC") issued a notice of violation to the contractor for fugitive dust emissions greater than 20% and work was stopped completely on the Bridge.

Between June and August 1992, the New York City Department of Health (the "DOH") conducted tests of sidewalks and streets, as well as people, within a 5-block radius of the Bridge. The tests indicated, inter alia, that children on both sides of the Bridge displayed elevated levels of lead in their blood, although it could not conclusively be determined that these findings were the result of the work being performed on the Bridge.

On September 2, 1992, former Mayor David Dinkins announced the formation of the Williamsburg Bridge Abrasive Blasting Task Force (the "Task Force") to develop a protocol consisting of appropriate remedial recommendations regarding construction standards and monitoring methods which needed to be implemented to contain fugitive lead emissions during the ongoing bridge project.

On December 20, 1993, the Task Force through the DOT's Bureau of Bridges issued a "Protocol" (the "Protocol"), which consisted of an "outline of the procedures and methodologies the [DOT] ... will utilize during all lead paint removal activity on the City's bridge structures." The Protocol includes, inter alia: a General Policy Statement for Lead Paint Removal; Compliance and Containment Procedures; Air/Surface Soil Monitoring Procedures; and Clean-Up Procedures.

The petitioners maintain that the Protocol's policies and procedures will not adequately protect the public health and, in support of their contentions, submit the affidavits of five experts in related fields. Overall, the experts concluded that the Protocol's containment, compliance, air and soil monitoring, clean-up and community notification procedures are inadequate to protect the residents of communities near the sandblasting, as well as the workers engaged in the project, from the harmful effects of lead dust and debris. Petitioners demanded that the City comply with the mandatory public review processes set forth in SEQRA, CEQR and CAPA, including the preparation of an Environmental Impact Statement ("EIS").

Petitioners, including various neighborhood civic organizations, city and state elected officials and a Community Board, commenced the within CPLR Article 78 proceeding on or about February 23, 1994 and by cross-motion dated May 2, 1994, respondents moved to dismiss the petition. By decision and judgment dated October 6, 1995 (167 Misc.2d 980, 637 N.Y.S.2d 241, supra), Justice Schoenfeld, in a well-reasoned decision, granted the petition to the extent of declaring that the Protocol is subject to the procedural requirements of SEQRA and CEQR, but is not subject to CAPA. The IAS court also enjoined the respondents from implementing the Protocol and from conducting any lead-paint removal from City-owned bridges without complying with the applicable requirements of SEQRA and CEQR. Respondents appeal and petitioners cross-appeal (to the extent that the IAS court found that the Protocol was not subject to CAPA), and we now affirm.

If this Court were to review the Protocol pursuant to the arbitrary and capricious standard as urged by petitioners before the motion court, we would be required to give deference to an agency's determination that concerns an area involving its authority, expertise and experience (Consolation Nursing Home, Inc. v. Commissioner of New York State Dept. of Health, 85 N.Y.2d 326, 331-332, 624 N.Y.S.2d 563, 648 N.E.2d 1326; Matter of Memorial Hosp. v. Axelrod, 68 N.Y.2d 958, 960, 510 N.Y.S.2d 541, 503 N.E.2d 97). The petitioner seeking to nullify the regulation must shoulder a heavy burden in demonstrating that the regulation is unreasonable and unsupported by any evidence (Consolation Nursing Home, Inc. v. Commissioner of New York State Dept. of Health, supra, at 332, 624 N.Y.S.2d 563, 648 N.E.2d 1326; Matter of New York State Health Facilities Assn. v. Axelrod, 77 N.Y.2d 340, 349-350, 568 N.Y.S.2d 1, 569 N.E.2d 860). In the instant matter, petitioners have failed to meet this burden as the City's submissions evinced a determined, good faith effort to establish safety guidelines to protect the inhabitants of neighborhoods abutting the City's bridges.

The question herein, however, is not substantive but procedural, specifically, whether the City, in adopting the Protocol, was required to comply with the public hearing/comment and technical procedural requirements of SEQRA and CEQR.

SEQRA was enacted in 1975 and became effective on September 1, 1976 (L 1975, Ch 612, § 2, as amended by L 1976, ch 228, § 4). Its stated purpose is "to declare a state policy which will encourage productive and enjoyable harmony between [humanity] and [the] environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the...

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