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If the State Won’t Test, We Will

Activists create the opportunity for their neighbors to be tested for heavy-metal poisoning

In less than two years, Elyse Grif fin and Elyse Kunz, the founders of Community Advocates for Safe Emissions, have succeeded in doing something that New York State has failed to do for decades. Over the weekend, CASE hosted scientists from the Harvard School of Public Health, as they gathered data on the potential health effects of living in the shadow of Lafarge cement plant’s toxic plume of heavy metals and carcinogens.

This will be the first widespread testing to examine of the impact of living next to the cement plant ever conducted.

The researchers spent Saturday and Sunday at the Coeymans Elementary School gathering blood and hair samples from well more than 100 people. According to Kunz, 90 people had preregistered, and “we had an excellent turnout at the door.”

Harvard will conduct an analysis for every individual who supplied blood and hair samples, and will inform the individuals directly of their results. The collective data will be released to the public. Kunz said that Harvard is anticipating that some early results will be available by the end of June, and that the group analysis will be available in three months.

These results will give the public its first hard look at the possible health effects of cement production. “So little is known about the environmental effects of cement plants,” Kunz said. She pointed out that Harvard is hoping to extend the studies that they have begun in Ravena into a nationwide exploration of the health costs associated with living near a cement plant.

“This is just the beginning of what could be a very extensive study,” Kunz said. “Nobody has ever really looked at this in this way. This is actual scientific data. As opposed to when you are talking to our state officials, who are talking about projections and models and estimates.”

“This is what we wanted the Department of Health to do,” Kunz said.

CASE hasn’t had much luck with the state agencies that are charged with protecting the public’s health.

When CASE initially formed, it reached out to the DOH and asked the agency to conduct a health study. DOH told CASE that the agency wouldn’t conduct a proper health study. Instead, CASE was told that the agency would conduct a Public Health Assessment.

Later, DOH revised its plan, telling CASE that it would “initiate a Data Review Collection and Summary.”

That didn’t happen, either.

Finally, DOH told Griffin and Kunz that the agency would seek CASE’s “input on ways to solicit individual community members concerns during [an] initial public meeting.”

According to CASE, that too never happened. Since August of last year, say Griffin and Kunz, DOH has failed to respond to any further requests for information from CASE.

CASE hasn’t received much help from the Department of Environmental Conservation, either. Last year, its state wildlife pathologist, Dr. Ward Stone, submitted a request for funding for a $2,000 study of the soil and wildlife surrounding the plant. The request was denied, and CASE was forced to raise funds to pay for the testing.

In October of last year, Stone announced that, through his testing, he had uncovered conclusive evidence that the land and wildlife near Lafarge was contaminated by high levels of heavy metals, including mercury.

Stone’s study served as a wake-up call for many people, said Kunz. “What’s so great about what Ward has done, and what Harvard is doing, is that they haven’t just talked about it. They have put their feet on the ground, and now they are doing something about it.”

“It was heartbreaking for us because there were some families that came in with obviously sick children,” Kunz said. “One family came in who had a son who was severely autistic. You could see the desperation. They just wanted answers.”

—Chet Hardin

Gov’s History Lesson

The state has been down the furlough road before, and learned the hard way that contracts are not meant to be broken

“Governor Loses Furlough Bid in Court—State Workers Prevail.” It sounds like a headline from last week, when four unions representing state employees obtained a temporary restraining order in federal court against Gov. David Paterson’s attempt to trim $30 million a week from New York’s $9.2 billion budget deficit by idling 100,000 workers on Fridays.

But this was 1986, when the Governor’s Office of Employee Relations lost an 11-year legal battle that had begun when some campuses of the State University of New York ordered nonessential personnel to take a holiday, that was in effect unpaid, on the day after Thanksgiving. Although the circumstances of the previous case differ from those of the present imbroglio, at least one of the unions may invoke it as a precedent in the unfolding dispute. At the minimum, the SUNY case serves as a cautionary tale to the long odds the state faces when it tries to circumvent a binding agreement it has reached with those who serve it.

The brouhaha got started in 1975, when in order to save money on energy costs, SUNY furloughed employees on the Thanksgiving weekend. In most cases, the university paid the workers but deducted a day’s wages from their accrued leave time. Representing UAlbany employees, the Civil Service Employees Association filed a contract grievance with the state demanding arbitration as provided for by state law. The unions then tried unsuccessfully to get SUNY to pay for the absences without any deductions. But they did not demand negotiations with SUNY over whether the university had failed to bargain in good faith by changing a term of employment without mutual agreement. That oversight would cost CSEA years of legal headaches.

In 1976, the arbitrator found that SUNY’s order had not violated the CSEA contract and denied the grievance. The university then continued the furloughs through 1978. Meanwhile, CSEA escalated the dispute by filing improper practice charges with the Public Employee Relations Board. The board decided that CSEA, because it hadn’t negotiated over SUNY’s right to make a contractual change, had waived its right to challenge the state on the issue. The matter then went to the courts, with the Public Employees Federation joining the suit in 1979 alongside CSEA.

PERB lost in the New York State Supreme Court, which ruled in 1982 that the board had “improperly imputed to CSEA the intent to waive its right to negotiate by virtue of its failure to demand negotiations.” PERB’s determination, the court added, was not supported by the evidence. PERB appealed without success and the matter was sent back to the lower court.

In a seemingly ironic twist, PERB then took the unions’ side against the Governor’s Office of Employee Relations, which supported the university’s position. PERB won in 1986, and after more than a decade of legal wrangling, the workers’ back pay was restored.

Now, CSEA, PEF, and two other unions, United University Professions, which represents the SUNY teaching staff, and the Professional Staff Congress, which represents faculty and staff at the City University of New York, are in federal court maintaining that their constitutional rights under the impairment of contracts clause have been violated by the furloughs, the holdup of the April 1 4-percent raise and the elimination of other contract benefits. Ruling in the unions’ favor, Judge Lawrence E. Kahn issued a temporary restraining order on May 12 halting the furloughs and reinstating the salary increases. Arguments are slated to begin on May 26 or shortly thereafter.

Ronald Dunn, an Albany attorney with expertise in state labor matters, explained that the case is in federal court because the Legislature passed the governor’s budget extension bill containing the furlough provision.

“The last time the state attempted to furlough without legislation. This time the wrinkle is there is a legislative act, and that’s why there is a constitutional violation,” Dunn said. “Clearly the principle of law is the same. One side or another cannot unilaterally impose its will. It’s that simple.”

In addition to the federal litigation, CSEA, PEF and UUP have filed either grievances, improper practice charges or both with the state over the furloughs, pay raises and other contract benefits.

It’s in these proceedings that the SUNY matter could arise as a precedent, even though it revolved around the technicality of a waiver. Reached for comment by phone, PEF spokeswoman Darcy Wells said their lawyers are aware of the earlier case and “will utilize it in the appropriate forum.”

UUP spokesman Don Feldstein reported that the state has denied their grievance because the federal restraining order has effectively prevented the union from claiming any injury. Asked about the SUNY case, he said “As of this time, it’s not on the radar screen.”

CSEA spokesman Steven Madarasz did not know if it might figure in their legal maneuvers.

Calls to the governor’s press office seeking to confirm that his counsel, Peter Kiernan, knew of the SUNY case and its possible relevance to the present furlough fight were not returned.

—Glenn Weiser

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