Williamsburg Around the Bridge Block Ass'n v. Giuliani

• Decision Date: 06 October 1995
• Citation: 637 N.Y.S.2d 241,167 Misc.2d 980
• Parties: WILLIAMSBURG AROUND THE BRIDGE BLOCK ASSOCIATION et al., Petitioners, v. Rudolph W. GIULIANI, as Mayor of City of New York, et al., Respondents.
• Court: New York Supreme Court

Page 241

637 N.Y.S.2d 241

167 Misc.2d 980

WILLIAMSBURG AROUND THE BRIDGE BLOCK ASSOCIATION et al., Petitioners, v. Rudolph W. GIULIANI, as Mayor of City of New York, et al Respondents.

Supreme Court, New York County.

Oct. 6, 1995.

Bronx Legal Services (Matthew J. Chachere and Lucy Billings, of counsel), and Brooklyn Legal Services Corp. A (Martin S. Needelman and Foster Maer, of counsel), for petitioners.

Paul A. Crotty, Corporation Counsel of New York City (Renee Hill, Susan Kath and Robert Rosenthal, of counsel), for respondents.

MARTIN SCHOENFELD, Justice.

In this CPLR Article 78 proceeding petitioners seek, essentially, (1) a declaration that the promulgation of a "Protocol" by respondent the City of New York ("the City") regulating the removal of lead paint from City-owned elevated transportation structures ("bridges") is subject to the procedural requirements of [1] the New York State Environmental Quality Review Act, New York Environmental Conservation Law ("ECL") Article 8, §§ 8-0101 et seq. ("SEQRA"); [2] the New York City Environmental Quality Review, Executive Order No. 91 of 1977, 43 RCNY Chapter 6, §§ 6-01 et seq. (now 62 RCNY, ch 5, Appendix A) ("CEQR"); and [3] the New York City Administrative Procedure Act, New York City Charter, Chapter 45, §§ 1041 et seq. ("CAPA"); and (2) permanently to enjoin the City from implementing the Protocol or conducting any lead paint removal from City-owned bridges without complying with the foregoing statutes, rules and regulations. Petitioners have moved for the relief requested in the Petition and respondents have cross-moved to dismiss or for summary judgment. The parties have agreed that the submissions before this Court, may in all respects, without the need for serving a formal answer, be treated as a motion and cross-motion for summary judgment. For the reasons set forth herein, the Court finds that the Protocol and the significant removal of lead paint from City-owned bridges are subject to SEQRA and CEQR but not, as matters now stand, to CAPA.

The Parties

The instant petitioners comprise an eclectic group of neighborhood civic organizations; City and state elected officials; a Community Board; a health advocacy group; and citizen-taxpayers. Besides the City, respondents consist of the Mayor of the City and four City agencies: the Department of Transportation ("DOT"); the Department of Environmental Protection ("DEP"); the Department of Health ("DOH"); and the Bureau of Bridges (part of DOT).

Lead Paint on City Bridges

There are some 2,062 bridges within the confines of the City, of which the City itself owns or co-owns some 838, "excluding culverts". Respondents' Reply Affidavit of John P. McTigue, p 3. To retard corrosion, many of them have previously been covered with paint containing lead in a "concentration ... many orders of magnitude" higher than that in the paint formerly used in residential housing. Petition p 31.

City-owned bridges are normally repainted every 10 years, currently with non-lead based paint. However, during repainting, repair, rehabilitation, or maintenance work it is often necessary to dislodge paint so that rust may be removed or to allow the welding of new metal against old metal. In fact, "[l]ead paint removal is an integral part of virtually every maintenance project that the Bureau [of Bridges] conducts on City-owned bridges." Respondents' Answering Affidavit (hereinafter referred to as "Answering Affidavits") of Frederick Pascopella, p 24.

There are various techniques to remove paint from metal bridges. The technique that is the fastest, does the best job of the removal itself, and is best able to reach into hard-to-access areas is called "abrasive blasting" (or "sandblasting"), in which particles of sand are propelled by highly compressed air against the surface to be cleaned. Unfortunately, this process spews a cloud of paint particles into the surrounding atmosphere; in the case of lead paint, the cloud contains paint chips and a "fine lead dust", Petition p 34. As expressed by respondents:

abrasive blasting, more than any other method of paint removal, poses potential health hazards through the creation of fine lead dust.... [I]n certain areas on bridges other methods are ineffective, and therefore NYCDOT needs to retain the option to use abrasive blasting as a last resort.

Answering Affidavit of Virginia Maher, p 20. Furthermore, "abrasive blasting is the only process that is able to remove 'bonded' rust, which is rust that has become incorporated onto the surface of steel." Answering Affidavit of Frederick L. Pascopella, p 16.

Health Effects of Lead Ingestion

According to petitioners, and not disputed by respondents:

Lead is a highly toxic metal which, when absorbed into the human body, produces a range of adverse health effects, particularly in children and fetuses. These effects include nervous and reproductive system disorders, delays in neurological and physical development, cognitive and behavioral changes, and hypertension, most of which are irreversible.

Petition, p 26. Petitioners' medical expert, John F. Rosen, M.D., opines, in his moving affidavit, p 9, that "[n]o blood lead threshold is too low to be disassociated with the adverse effects on IQ and cognitive and central nervous system functioning" in children. The federal Centers for Disease Control and Prevention have lowered from 25 to 10 the number of micrograms of lead per deciliter of blood that they consider to be a health concern/issue. Petition, p 27. Lead can enter the body through inhalation or through swallowing and absorption through the gastrointestinal tract. Children appear to be particularly vulnerable to lead because their hand-to-mouth activity increases ingestion and because their central nervous systems are still developing.

Williamsburg Bridge Paint Removal, 1992

In or about June of 1992 the Bureau of Bridges, using an outside contractor, began maintenance work on the Brooklyn side of the Williamsburg Bridge. As alluded to in the petition, p 30 (Brooklyn) and pp 64-65 (Manhattan), and as many New Yorkers know, the Williamsburg Bridge stretches over densely populated neighborhoods, teeming with children, on both sides of the East River. By all accounts, the project was a public relations and public health fiasco (to use petitioners' term, "disaster"). Petitioners have submitted videotape taken in late June and early July of 1992 in Williamsburg showing a dust cloud emanating from the work area on the bridge and what are arguably sloppy waste collection procedures. Respondents note that "[o]n numerous occasions during the sandblasting ... the City halted work when the contractor failed to stop dust releases" and that "[t]he levels of lead in [sampled] dust revealed that the release had affected an area within a 500 foot radius on the Brooklyn side of the bridge." Petition Exhibit 7 (page 2 of letter from City, dated 10/27/93); see Answering Affidavit of Enid Carruth, p 7. The Brooklyn work was halted after neighboring residents complained about environmental degradation. Work then began on the Manhattan side, resulting in a similar community response and a "final" cessation. On July 8, 1992 the New York State Department of Environmental Conservation issued "a notice of violation to the contractor for fugitive dust emissions of greater than 20%." Respondents' Memorandum of Law, at 3-4. Subsequent testing of children living in the immediate vicinity of both sides of the bridge revealed that several were suffering from lead poisoning (which, the Court notes, may or may not have resulted from the sandblasting).

The Task Force

On September 2, 1992, in response to a request by Brooklyn Borough President Howard Golden, the office of then-Mayor David Dinkins announced the formation of the Williamsburg Bridge Abrasive Blasting Task Force under First Deputy Mayor Norman Steisel to "monitor, investigate and make appropriate remedial recommendations regarding the containment breach that occurred on the Williamsburg Bridge during the summer of 1992 and to develop the Protocol for containment and monitoring of lead removal operations during future bridge repairs." Answering Affidavit of Virginia Maher, p 4. The Task Force included representatives from DOT; DEP; DOH; the New York State Departments of Health and Environmental Conservation; Community Boards 1 in Brooklyn and 2 in Manhattan; and Williamsburg Around the Bridge Block Association. Dr. Philip Landrigan of the Mount Sinai Medical Center Division of Environmental and Occupational Medicine served as "an independent expert on the health risks associated with environmental exposure to lead." Id., p 7. Petitioners claim that "City representatives dominate[d] [the Task Force's] procedures and conduct." (Petitioners' Moving Affidavit of John F. Rosen, M.D., p 29.)

In a letter dated September 21, 1993, to DEP and DOT, several of the organization petitioners "demand[ed] that the City comply with the mandatory public review processes outlined in SEQRA, CEQR, and CAPA, including the preparation of an EIS [i.e., Environmental Impact Statement]." Petition, Exhibit 6 (letter at page 7). In a responsive letter dated October 27, 1993, the City denied that the Task Force's promulgation of a lead paint removal Protocol was subject to "SEQRA and CAPA." Petition, Exhibit 7 (letter at page 3).

The Protocol

The "PROTOCOL, NYC DOT Bureau of Bridges" (Petition Exhibit 3; Answering Affidavit of V. Maher, Exhibit 6) was issued in final form dated December 20, 1993. (Petitioners contend that the Task Force "minutes do not even indicate which person or persons determined the final Protocol was adequate and approved its promulgation." Petitioners' Reply Affidavit of J. Rosen, p 2.) It is divided into the following sections: GENERAL POLICY STATEMENT FOR LEAD PAINT REMOVAL; COMPLIANCE PROCEDURES; CONTAINMENT PROCEDURES; AIR/SURFACE SOIL MONITORING PROCEDURES; CLEAN UP PROCEDURES; COMMUNITY...