Modified Bill Can't Bridge Gap
NYPD Advocates Remain Divided on Air Monitoring

By ARI PAUL

The Police Department April 29 told a City Council committee that it had made changes to an administration-backed bill that would regulate air monitoring to address the concerns of labor and community groups, but activists and several lawmakers continue to oppose it.

The Chief-Leader/Pat Arnow ANOTHER TRY: Richard A. Falkenrath, the Deputy Commissioner for Counter-Terrorism for the NYPD, told the City Council that a new draft of Intro. No. 650 exempted many types of air monitoring devices from needing a permit, thanks to input from labor and community groups. 'What people wanted to be excluded has been excluded,' he said.

Mayor Bloomberg had requested the bill known as Intro No. 650 because he believed it would reduce false alarms and improve the police's ability to respond to possible cases of biological, radiological, nuclear and chemical terrorism by limiting environmental testing to only those with Police Department permits.

Met With Advocates

Richard A. Falkenrath, the NYPD Deputy Commissioner for Counter-Terrorism, told the Public Safety Committee that he had met with labor and community groups that believed that the permit process would greatly hinder their ability to conduct environmental testing and that a new draft of the bill addressed their concerns.

He testified that the new draft exempts monitoring devices such as smoke, carbon monoxide and radon detectors, as well as Geiger Counters.

"What people wanted to be excluded has been excluded," Mr. Falkenrath said.

He also brushed aside comments by some of the bill's critics that the Police Department did not have expertise in the area of environmental monitoring, saying that it would work with the Department of Health and Mental Hygiene in the regulation process.

Among the other changes to the legislation were the exclusion of workplace safety monitoring; reducing the sentence for violating the measure from a maximum of one year in prison to a maximum of 20 days; issuing a summons rather than making an arrest for a violation, and the ability to shift criminal liability from an individual doing testing to the corporation with which that person is affiliated. Mr. Falkenrath said that the bill would establish a 24-hour hotline people could call for consultation on environmental testing.

In a feisty exchange between the Deputy Commissioner and Queens Councilman John Liu, Mr. Falkenrath said the bill was intended to encourage groups to do testing by giving them the confidence that their devices complied with the law, but admitted that the measure offered no other incentives.

"I still don't see why we need this legislation," said Mr. Liu, who is not a member of the committee, adding that only restricting testing would not encourage groups. "It's oxymoronic."

Mr. Liu also asked whether there had been frequent false alarms of environmental crises due to independent air monitoring. Mr. Falkenrath responded, "We do not have a trend of false alarms," leading the Councilman to assert that the rationale behind the bill was "just incredibly hypothetical."

Before the meeting, Mr. Liu commented, "It's not like anything's being put into the air. It's not like the public's being exposed. At some point we've got to draw the line between what is necessary in the name of public safety and security and what is just a little too much."

Calls for Compromise

Manhattan Councilman Daniel Garodnick suggested that the NYPD compromise and have a registration system for groups doing monitoring rather than issue permits, as some groups have suggested.

"It seems like there might be a narrower way to accomplish this," he said.

But Mr. Falkenrath responded that the NYPD researched the idea but concluded it was impractical because such a system would not compel groups to be subjected to police oversight.

"We don't think a registration system works," he said.

Several of the bill's original supporters have taken their names off it. Most recently, Councilman Joseph P. Addabbo, a member of the Public Safety Committee, removed his sponsorship, saying that the bill was well-intentioned but too difficult to implement.

Too Much NYPD Control?

"The bill empowers the NYPD to confiscate permitted sampling devices or to require that their use be halted," said David Newman, an industrial hygienist for the New York Committee for Occupational Safety and Health.

He continued in his written testimony, "NYCOSH has asked [the] NYPD for the criteria that have been used or would be used to determine if confiscation is appropriate. NYPD has been unable to provide such criteria or to explain the circumstances in which confiscation would occur."

Kimberly Flynn, coordinator of the 9/11 Environmental Action Group, called Intro. No. 650 a "kill the messenger bill," saying that even with the exemptions written into the bill, it would have a chilling effect on groups doing air testing.

"Right now the criteria for whether or not you need a permit depends in part on the intention; someone's subjective state inside their head, who's using the monitor," she said. "If I'm a police officer and I see this monitor and I'm aware that maybe there's a heightened alert that day, I'm going to issue that person an appearance ticket, I'm going to confiscate the monitor and I'm going to let the judge sort it out."

'No Walk in the Park'

She added that groups such as bicycling advocates Critical Mass have complained that dealing with a summons for doing what they believe is their right was a burdensome process.

"Getting an appearance ticket and being arraigned in court is being talked about as if it's a walk in the park," Ms. Flynn said. "It's a very intimidating thing to realize that if you go out with your monitor, you may have this very unpleasant encounter with a police officer that may result in your $500 monitor that your community group saved money for months to buy is going to be carted off, and who knows when you'll see it again."

Ms. Flynn did take some comfort in the fact that several Council Members have withdrawn their support for the bill and that some raised labor and community groups' concerns in last week's meeting.

"I don't want to call the contest right now," she said, "but I would say that it is encouraging that the City Council Members who have finally really taken a good hard look at what actually is written down in this bill and also who have spoken with people who have expertise in environmental monitoring are asking tough questions."

Key Unions Join Opposition

In March, a coalition of 44 groups sent a letter to Mayor Bloomberg voicing their opposition. Among the signers were Transport Workers Union Local 100, District Council 37, Communications Workers of America Local 1180, the American Lung Association of the City of New York, the New York Civil Liberties Union, We Act for Environmental Justice, the League of Conservation Voters and the Sierra Club.

At the end of his testimony, Mr. Falkenrath said that despite the groups' continued opposition, he had addressed the majority of the concerns they had voiced and that their ability to conduct independent testing was explicitly protected in the bill's new language.

"I wish I had their support," he said, "but I realize I'm not going to."