Bronx Comm. for Toxic Free Sch. v. N.Y.C. Sch. Constr. Auth.
| Decision Date | 23 October 2012 |
| Citation | 981 N.E.2d 766,958 N.Y.S.2d 65,2012 N.Y. Slip Op. 07051,20 N.Y.3d 148 |
| Parties | In the Matter of BRONX COMMITTEE FOR TOXIC FREE SCHOOLS et al., Respondents, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
20 N.Y.3d 148
981 N.E.2d 766
958 N.Y.S.2d 65
2012 N.Y. Slip Op. 07051
In the Matter of BRONX COMMITTEE FOR TOXIC FREE SCHOOLS et al., Respondents,
v.
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY et al., Appellants.
Court of Appeals of New York.
Oct. 23, 2012.
Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon, Kristin M. Helmers and Carrie Noteboom of counsel), for appellants.
Weil, Gotshal & Manges, LLP, New York City (Gregory Silbert, David Berz and Christopher Barraza of counsel), and New York Lawyers for the Public Interest (Gavin Kearney and Dawn Philip of counsel) for respondents.
Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Richard G. Leland, Laura Israel Sinrod and Deuel Ross of counsel), and Sive, Paget & Riesel, P.C. (Mark A. Chertok, Jennifer Coghlan and Edward K. Roggenkamp, IV, of counsel) for The Real Estate Board of New York, Inc., amicus curiae.
Schulte Roth & Zabel LLP, New York City (Howard B. Epstein, Theodore A. Keyes, Sami B. Groff, Lawrence B. Schnapf and Valerie L. Sheaffer of counsel),
[958 N.Y.S.2d 66]
for New Partners for Community Revitalization, amicus curiae.
SMITH, J.
[981 N.E.2d 767]An agency preparing an environmental impact statement (EIS) has broad discretion in deciding what to include and what to omit. We nevertheless hold that in this case the New York City School Construction Authority (Authority) must supplement its EIS to describe certain remedial measures, because the Authority has not challenged petitioners' showing that such a description is essential to an understanding of the environmental impact of the Authority's project.
The project is the construction of a campus including four public schools in the Mott Haven area of the Bronx. The site selected by the Authority for the campus was formerly a railroad yard. The soil and ground water were significantly contaminated, and had to be cleaned up.
The process of identifying, analyzing and remedying the site's environmental problems was long and laborious. A first environmental assessment was prepared in 2001; remedial actions were not completed until 2007. In the interval, the Authority prepared many studies, consulted with community groups, repeatedly invited public comment on the project, and complied with a number of statutory requirements not relevant here.
[20 N.Y.3d 153]The issue before us is whether the Authority violated the State Environmental Quality Review Act (SEQRA) (ECL 8–0101 et seq.) by failing to discuss in an EIS the methods it adopted for long-term maintenance and monitoring of the controls it used to prevent or mitigate environmental harm. To place this issue in context, we must discuss the impact on the project of another statutory scheme, the Brownfield Cleanup Program (ECL 27–1401 et seq.), by which the State offers inducements for the cleanup of contaminated sites. The Authority successfully applied to participate in the Brownfield Program before it prepared the EIS required by SEQRA.
The most contaminated section of the Mott Haven campus site was accepted into the Brownfield Program by the Department of Environmental Conservation (DEC) in 2005. Participation in the program required the Authority to submit a number of documents to the DEC, among them a Remedial Action Work Plan (RAWP), describing how it proposed to remedy the contamination. In its RAWP, the Authority proposed, among other things, to make use of so-called engineering controls-for example, a vapor barrier under a school building, to prevent contaminants from entering the school, and a hydraulic barrier to prevent recontamination of the site by groundwater ( seeECL 27–1405[11]and6 NYCRR 375–1.2[ o ] [defining “engineering control”] ).
The Brownfield statute and the DEC regulations implementing it require a RAWP that includes engineering controls also to include, among other things, “a complete description of ... any operation, maintenance, and monitoring requirements, including the mechanisms that will be used to continually implement, maintain, monitor, and enforce such controls” (ECL 27–1415[7][a] [ii]; see also6 NYCRR 375–1.8[h][1][ii] ). In other words, a site owner is required to describe the means it will use to be sure that its engineering controls continue to work as intended. These long-term maintenance and monitoring methods, which are the focus of this litigation, include such things as the inspection of structures to be sure they are [981 N.E.2d 768]
[958 N.Y.S.2d 67]
in good condition, and the periodic testing of groundwater for contaminants.
The RAWP that the Authority submitted to the DEC did not describe its plans for long-term maintenance and monitoring. This was because the Authority believed a choice of maintenance and monitoring methods at that time would be premature. In the Authority's view, such methods are best chosen after cleanup work has been done, and the post-cleanup soil and [20 N.Y.3d 154]groundwater conditions can be assessed. The DEC approved the RAWP on July 5, 2006, stating as a condition, among others, that the Authority “must develop a site management plan for [DEC] approval to ... provide for the operation and maintenance of the components of the remedy.”
After getting DEC's conditional approval of the RAWP, but before preparing the site management plan that the DEC required, the Authority went through the SEQRA process. It prepared a draft EIS, made it available for public comment and revised it in light of those comments. Neither the draft nor the final version of the EIS described the long-term maintenance and monitoring procedures to be used.
After filing the final version of the EIS, the Authority, on November 6, 2006, made detailed findings as to the environmental impacts of the project. It concluded that “[t]he beneficial impacts of the construction of the proposed new school facility far outweigh the adverse environmental impacts,” that those impacts “can be largely mitigated” by measures identified in the final EIS, and that the project “minimizes or avoids adverse environmental impacts to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures which were identified as practicable” ( seeECL 8–0109 [2], [5], [8] ).
Petitioners brought this CPLR article 78 proceeding in 2007, challenging the Authority's SEQRA compliance. Petitioners pointed to several alleged flaws in the EIS, but the only one that now concerns us is its failure to “propose a long-term maintenance and monitoring protocol.” An expert affidavit submitted in support of the petition said that “the long-term inspection, maintenance and monitoring of protective controls is essential to ensuring that [the Authority's] strategy will sufficiently protect a site's occupants” and that the strategy outlined by the Authority in its RAWP “can be effective mitigation only if a robust long-term management program is implemented.”
In opposing the petition, the Authority did not assert that the methods of long-term maintenance and monitoring were not important enough to be described in an EIS. Rather, the Authority submitted an expert affidavit explaining that “developing a detailed site management plan at this time is neither necessary nor appropriate because the plan must be governed by post-remediation soil and groundwater conditions, something that [20 N.Y.3d 155]cannot be measured until after cleanup is complete.” Supreme Court interpreted the Authority's position as an admission “that its final Environmental Impact Statement as it...
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