United States Announces Settlement of Civil Action Addressing Clean Air Act Violations at New York City Public Schools

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Jacquelyn M. Kasulis, Acting United States Attorney for the Eastern District of New York, Todd Kim, Assistant Attorney General of the Justice Department’s Environment and Natural Resources Division, and Walter Mugdan, Acting Regional Administrator of the United States Environmental Protection Agency, Region 2 (EPA), announced today that the United States filed suit under the Clean Air Act (CAA) against the City of New York and the New York City Department of Education (NYCDOE) to address their longstanding failure to properly monitor and control harmful emissions from NYCDOE oil-fired boilers in New York City public schools.  Many of NYCDOE’s boilers are located in disadvantaged communities whose residents are exposed to disproportionately high pollution levels that result in adverse health and environmental impacts.  The parties agreed to enter into a Consent Judgment, also filed today with the court, that requires NYCDOE to: (1) conduct regular tune-ups to monitor and repair its boilers as required by the CAA to control excess emissions; (2) reduce its boiler emissions by transitioning seven of its largest oil-fired boilers to cleaner, natural gas boilers by 2023 at an approximate cost of $50 million; and (3) pay a civil penalty of $1 million to the United States. 

The Complaint and Consent Judgment were filed in the United States District Court for the Eastern District of New York, in Brooklyn, New York.  Following a 30-day public comment period, the United States will review all comments and, if appropriate, ask the court to enter the Consent Judgment.

“The United States brought this action to protect our children, teachers, staff, and communities from exposure to high levels of hazardous air particles and particulate matter emitted by oil-fired boilers at NYCDOE schools, many of which are located in areas of the city that are already burdened by disproportionate levels of air pollution,” stated Acting United States Attorney Kasulis.  “This settlement demonstrates that this Office and its Environmental Justice Team are committed to addressing environmental justice concerns and reducing dangerous emissions and hazardous air pollutants in disadvantaged communities.”

“Students and teachers should not have to be concerned that the air they are breathing at school is harmful to their health,” stated Assistant Attorney General Kim. “This settlement will benefit New York’s schools and the communities they serve, who already suffer an unjust burden from polluted air.”


“Thousands of New York City residents will be breathing cleaner air as a result of this case, many of whom live in communities overburdened by dangerous air pollution and other environmental challenges,” stated EPA Acting Regional Administrator Mugdan. “This case demonstrates EPA’s commitment to advancing environmental justice and working with our partners like the Justice Department to ensure compliance with critical federal laws that protect public health and clean air. Children’s health is an EPA priority because they are often more vulnerable than adults to the risks of pollutants and environmental hazards.”

The CAA was passed by Congress in 1970, and amended in 1990, to protect public health and the environment through the regulation of air emissions from both stationary and mobile sources. The 1990 amendments to the law required the EPA to establish standards for air toxics, also known as hazardous air pollutants (HAPs).  These standards impose limitations on HAP emissions from a variety of sources. In order to reduce these emissions from oil-fired boilers located at institutional sources including schools, the EPA promulgated national operation and maintenance standards for such boilers in 2011.  These standards are commonly referred to as the Area Source Boiler Rule.

NYCDOE, the nation’s largest public school system, operates oil-fired boilers at hundreds of public schools throughout the city. When these boilers are properly maintained, they play an important role in keeping the schools warm. When these boilers are not properly maintained, they can emit excess HAPs, along with other regulated pollutants such as particulate matter, nitrogen oxides, sulfur oxides, carbon monoxide, and greenhouse gases.  Regular tune-ups, which include monitoring of emissions, can increase a boiler’s combustion efficiency, lowering its actual emissions rate.

Over 1,300 of NYCDOE’s oil-fired boilers, at approximately 566 school facilities, became subject to the Area Source Boiler Rule in 2014.  These regulations require boiler operators to conduct regular tune-ups and submit reports to the EPA about the status of all boilers subject to the rule. The rule also required NYCDOE to conduct one-time energy assessments for certain large oil-fired boilers.  However, as set forth in the United States’ complaint, NYCDOE failed to comply with these requirements for several years after they took effect.  As a result of the EPA’s enforcement efforts, NYCDOE has now brought its boilers into compliance with the CAA. 

The NYCDOE’s failure to properly perform tune-ups resulted in excess emissions that will be mitigated under the Consent Judgment.  Notably, many of NYCDOE’s boilers are located in communities identified by the EPA as posing Environmental Justice concerns, due to the large number of minority or low-income residents who are disproportionately exposed to air pollution and its harmful effects.  Particulate matter and HAP emissions are linked to a range of health problems and also cause environmental harm.   The mitigation projects described below are targeted to provide environmental benefits in these communities. 

The settlement requires the NYCDOE to regularly and properly conduct periodic tune-ups of regulated boilers. These tune-ups will proceed according to a checklist which ensures that the proper procedures and quality assurance measures are followed, and that all necessary maintenance or repairs are identified and addressed.  To mitigate past emissions, NYCDOE has also agreed to convert or replace seven large oil-fired boilers that burn more polluting number 4 oil to natural gas prior to March 2023 – including one of the largest boilers in the school system, located at K430 (Brooklyn Tech High School).  The other schools at which boilers will be replaced or converted are: Q053 (M.S. 53 Brian Piccolo), X029 (P.S./M.S. 029 Melrose School), K068 (I.S. 068 Isaac Bildersee); K306 (P.S. 306 Ethan Allen), M013 and M117 (each containing various co-located schools).  These new or converted boilers will emit far less HAPs when running on natural gas, a cleaner-burning fuel.  This effort is projected to reduce NYCDOE’s oil consumption and combustion by over 3 million gallons by November 2027, thereby mitigating excess emissions caused by NYCDOE’s earlier failure to follow the Area Source Boiler Rule.  The mitigation projects effectively advance NYCDOE’s compliance with New York City’s PlaNYC, under which the city plans to phase out number 4 oil from all boilers by 2030.  

The civil negotiations and settlement were handled by Assistant U.S. Attorney Matthew Silverman of the U.S. Attorney’s Office for the Eastern District of New York, working with Liliana Villatora and Erick Ihlenburg, Office of Regional Counsel, U.S. EPA Region 2, Robert Buettner, Chief, Air Compliance Branch, U.S. EPA Region 2, Gaetano LaVigna, Chief, Stationary Source Compliance Section, Air Compliance Branch, and Ray Slizys and Harish Patel, also with the EPA Region 2 Air Compliance Branch, Greg Fried, Chief, Stationary Source Enforcement Branch, Air Enforcement Division, EPA Office of Enforcement and Compliance Assurance (OECA) and Robert Klepp, also with OECA.

In June of this year, Acting U.S. Attorney Kasulis announced the creation of an Environmental Justice Team within the Office’s Civil Division comprised of seven Assistant U.S. Attorneys and led by Assistant U.S. Attorney Silverman, the Chief of Environmental Litigation.  The Environmental Justice Team’s focus is the protection of the rights of residents of the Eastern District of New York who are disproportionately burdened by environmental and health hazards.

E.D.N.Y. Docket No.: 21-CV-5338 (PKC)

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