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Cohen Alumni Association sues state to stop toxic build

15th April 2014   ·   0 Comments

By Kari Dequine Harden
Contributing Writer

Would you send your kids to a school built on top of a toxic waste dump?

That’s the question James Raby, president of the Walter L. Cohen Alumni Association (class of 1955), wants officials from the Recovery School District (RSD) and the Louisiana Department of Environmental Quality (LDEQ) to answer.

In an attempt to stop the RSD from proceeding with its proposed plan to build the $55 million new Booker T. Washington High School on contaminated ground, the Cohen Alumni Association (WLCAA) filed a lawsuit against the LDEQ on March 28.

After multiple environmental assessments found unacceptable levels of toxic heavy metals in the soil on the Booker site, the RSD proposed a remediation plan. The plan was then approved by the LDEQ on Feb. 26, 2014.

Located at 1201 S. Roman Street, the Booker site is approximately four acres in size, and is bordered by Earhart Blvd. and Erato Street.

The RSD’s plans call for the removal of three feet of contaminated soil, (except under existing structures), then covering the excavated area with geotextile material, and filling it in with three feet of clean fill material. The plan also includes storing, covering and wetting down extracted material and measures to prevent it being tracked off-site.

The cost estimate for the remediation is $3 to $4 million, according to the RSD.

The RSD estimated the cost of environmental assessments at just over $84,000.

But Monique Harden (no relation to the author of this story), co-director and an attorney with Advocates for Environmental Human Rights (AEHR), argues that the remediation plan selected by the RSD is insufficient, violates state law, and risks the health of people on and surrounding the site.

Harden’s nonprofit, public interest law firm is representing the Cohen Alumni Association in the suit.

“By approving the RSD plan, the LDEQ ignored the legal standard for environmental remediation of a site that is located near infants, children, the elderly, pregnant and nursing mothers, and people with chronic illnesses. This standard requires vitally important health and safety measures that are missing from the RSD plan,” Harden said in a press release.

In their written correspondence, Harden and the LDEQ disagree on whether the Booker property qualifies as a “hazardous waste site.”

The LDEQ letter claims that the area does not meet the definitions of a hazardous waste site.

But Harden said the LDEQ had attempted to minimize the severity of the soil contamination, and is ignoring the “health effects of excavating this contaminated soil next to people living in homes and apartments.”

Harden wrote that the “EPA [Environmental Protection Agency] has identified six of the eight toxic-heavy metals detected at unacceptable levels on the Booker T. Washington School property as constituents of hazardous waste. These toxic-heavy metals are antimony, arsenic, barium, cadmium, lead, and mercury. You will find each of these metals on the EPA’s identification of ‘Hazardous Constituents,’ which is listed in a federal regulation.”

The WLCAA lawsuit contends that leaving contaminated soil and not having geotextile material on the sidewalls of the excavated areas would “allow for the migration of soil contaminants around the geotextile material with no protection against exposure to soil contaminants for workers involved in the remediation, demolition, and construction projects as well as students, teachers, and staff who would occupy the site after the construction of the new school.”

Raby said he wants to know why the RSD is “hell-bent” on rebuilding Booker T. Washington on a contaminated site, and relocating the Cohen College Prep kids, as opposed to renovating or rebuilding Cohen on its current, uncontaminated site.

Raby argues that the Cohen site is also located in an area that is safer, quieter, and more suitable for a school.

As part of the 2008 Schools Facilities Master Plan, the decision was made to land bank the Cohen facilities, located at 3520 Dryades Street.

The “land banking” of Cohen means it is set aside for an undetermined future use, and ineligible for FEMA recovery dollars investment.

When asked about the specific plans for the Cohen facilities, the RSD’s response was only that it was not included in Master Plan, and that it was to be land banked.

A spokesperson for the RSD said that they do not comment on lawsuits.

The LDEQ also as policy does not comment on lawsuits, but a spokesman pointed to their website which provides public access to the electronic documents related to the lawsuit. (AI # 36659).

Raby and the Cohen Alumni Association have been vocal from the beginning about the plan that calls for the “merger” of Cohen and Booker T. Washington. The group’s initial opposition to the plan was in preserving Cohen as is, and affording its students better academics in a smaller school setting, Raby said.

“And just where are these Booker students the Cohen kids were merging with?” Raby wants to know. In a state of significant disrepair, Booker T. Washington was shuttered prior to Hurricane Katrina, and then demolished in 2012.

As the alumni association fought the “merger,” they began digging around at the library, and were surprised to discover that the BTW site was part of a larger tract of land previously known as the “Silver City Dump,” which was closed in the 1930s prior to the construction of Booker. The original school was completed by the Works Progress Administration (WPA) in 1942.

Raby wrote in an August 11, 2013 letter to RSD Superintendent Patrick Dobard that “site contamination and the health of students replaced all other concerns” of the WLCAA.

The letter was in response to Dobard’s August 8, 2013 letter, in which Dobard wrote to Raby that the decision to land bank Cohen remained unchanged after the 2011 review of the master plan, when “The demographic study showed that there were more high school buildings than were necessary to serve the student population in New Orleans.”

In that same letter Dobard stated that “The contaminants are the result of the automotive educational technology programming of the previous school program at the Booker T. Washington school, and we are confident that the remediation plan will eradicate any environmental concerns.”

In his response letter, Raby calls this assertion “incredulous, even to the most uniformed.” He cites a May 31, 2012 assessment report by Leaaf Environmental LLC informing that the soil is contaminated with toxic concentrations of antimony, arsenic, barium, cadmium, copper, lead, zinc, and mercury.

The August 20, 2013 LDEQ Site Investigation and Risk Evaluation Corrective Action Program (RECAP) Report concludes that sampling found unacceptable levels of contaminants at depths ranging from near the ground surface to approximately 10 feet beneath the ground surface, and present across a majority of the site.

According to the report: “Based on the former use of the property as a ‘city dump’ the extent of the impact is believed to be directly related to this former use of the property.”

Environmental scientist Wilma Subra said that it is possible that an automotive program contributed to the contamination, but that majority of the waste is clearly a result of the site being used as a dump by the city into the 1930s. Heavy metals don’t degrade, she noted.

Again citing the lawsuit, the RSD did not respond to a question regarding the veracity of Dobard’s automobile program claim.

Subra performed an analytical review of the data and the RSD’s plan, and concluded that as much as nine feet of contaminated soil and groundwater would remain on the Booker T. Washington School property and have the potential for also exposing construction workers, as well as students, teachers, and staff, who would occupy the site after the construction of the new school, to the toxic heavy metals. “If allowed to be implemented, the RSD plan would threaten human health,” Subra said in the news release.

Subra said that acute health risks including respiratory impact, cardiovascular impact, and skin rashes. Long-term risks include cancer.

The contaminated soil would need to be removed in its entirety, and the removal process would have to be carefully contained, Subra described.

She referred to other excavation projects on which the entire site was enclosed in a dome and the air “scrubbed,” thus preventing the toxins from entering the air around the site.

Corresponding with Harden’s law firm, the LDEQ wrote in a Dec. 2013 letter that the remediation standards chosen by the RSD (Management Option 1) are in accordance with state law, and are “protective of both human health and the environment.”

Harden called the RSD’s plan “patchwork,” and also expressed concern about the effects of subsidence and flooding on the migration of toxic-heavy metals.

As is, the site is hazardous, Harden said, and the fencing around the property inadequate.

In his letter to Dobard last August, Raby asked, if demographics suggested more buildings than high school students, “Why is the RSD steadfastly determined to rebuild a high school on contaminated soil (BTW site)? Needless to say, instead of building a high school on contaminated soil (BTW Site), it is obvious that renovating Cohen at its present site would be more feasible, financially prudent and environmentally safe.”

Of course, it’s just speculation, but Raby said he recognizes the difference in real estate value, and acknowledges that the Cohen property, just two blocks off St. Charles Avenue, is much more desirable to high end developers.

Raby emphasized that in no way is the WCLAA anti-Booker or anti-rebuilding Booker. But he said they are strongly opposed to building any school on the former waste dump, and strongly opposed to relocating the Cohen students to a location that they see as hazardous to the health of workers, students, staff, and neighbors.

In his August 2013 letter to Raby, Dobard touts the investment in the Booker neighborhood, citing the redevelopment of the nearby Marrero Commons Housing Com?munity and the new BioDistrict. “Our students will benefit from a school and a community that has been re-integrated into the fabric of the city,” Dobard wrote.

But Raby alludes to the Moton disaster – another school built “for poor Black kids” on a former landfill – and a tragedy he sees as a painful lesson on taking preventative measures rather than risking the health of people – especially children.

After two decades of litigation and $50 to $70 million in reparations, Raby also points to Moton as a lesson not wasting taxpayer money.

Moton Elementary School was opened in 1986, built atop the former Agriculture Street Landfill that was later declared a federal Superfund site because of the toxicity of the chemicals and heavy metals found in the soil. It was used as a municipal site by the city from 1909-1950, and reopened in 1965 to store waste and debris from Hurricane Betsy.

The contaminated area also in?cluded private and public housing.

A class action lawsuit was filed in 1993 against the City of New Orleans, the Housing Authority of New Orleans (HANO), the OPSB, and the insurers for HANO.

In 2005, Judge Nadine Ramsey ruled in favor of the class-action lawsuit’s plaintiffs, however, many of the plaintiffs are still awaiting compensation for reduced property values, moving costs and medical expenses.

“Why would the RSD be attempting to build a 3rd school for Black kids on top of a waste site?” Raby asked, referencing Booker T. Washington, Moton, and the new Booker T. Washington.

Raby doesn’t understand why the school district – why the city, or the state, would want to risk another Moton, especially when he sees renovating or rebuilding Cohen as a viable option.

On April 14, 2014, FEMA will host a meeting to provide the public with a forum to address any viable concerns, ask questions, and review the RECAP plan. The meeting will be held at 6 p.m. at Sylvanie Williams School at 3127 Martin Luther King Jr. Boulevard.

On April 15, the WLCAA will host a meeting to provide information regarding public health issues involved in the RSD plan for the Booker T. Washington property. Harden and Subra will make presentations. The meeting will be held at 6 p.m. at the First Agape Baptist Church at 3219 Thalia Street.

This article originally published in the April 14, 2014 print edition of The Louisiana Weekly newspaper.

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