Earth Matters - April 2013: Recent Decision Highlights Distinction Between Compliance With Multiple Environmental Programs

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A recent New York Court of Appeals decision, Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, 20 N.Y.3d 148 (2012), highlighted the interplay between the compliance process for the State Environmental Quality Review Act (SEQRA) and the Brownfield Cleanup Program (BCP). Though much of the decision was procedurally-based, the court shed some light on this infrequently explored area.

The case involved the construction of a campus containing four public schools by the New York City School Construction Authority (the “SCA”). The site is a former railroad yard located in the Mott Haven area of the Bronx, with a history of significant soil and groundwater contamination. The court examined whether the SCA violated SEQRA by failing to include in its Environmental Impact Statement (“EIS”) a discussion of the methods it would adopt for longterm maintenance and monitoring of mitigation controls at the site.

The SCA was participating in the New York BCP simultaneously with its SEQRA review. The BCP required the SCA to submit several documents, including a Remedial Action Work Plan (“RAWP”), which contained a description of how the SCA proposed to remedy the contamination. The BCP regulations also required the SCA to include in the RAWP a description of any operation, maintenance and monitoring requirements, including methods to be used in the future to maintain and monitor such controls. At the time of the initial drafting of the RAWP (and during the EIS process), the SCA felt it was premature to make a choice regarding long-term maintenance and monitoring. The DEC conditionally approved the RAWP, stating that the SCA eventually would have to develop a site management plan to provide for long-term operation and maintenance of the remedy. The SCA then completed the SEQRA process prior to development of the site management plan.

The Bronx Committee for Toxic Free Schools brought a CPLR Article 78 proceeding challenging the SCA’s SEQRA compliance because the SCA failed to “propose a long-term maintenance and monitoring protocol.” The trial court ordered the SCA to prepare a supplemental EIS providing these details. As the matter moved through the courts, the SCA completed the site management plan for the BCP.

When the plan was approved by the DEC, the SCA argued that the submission and approval of the site management plan negated the need for a supplemental EIS.

The Court of Appeals, however, ruled that the SCA was obligated to file a supplemental EIS. The Court noted that although a Lead Agency may use its reasonable judgment with respect to the requisite level of detail in an EIS, the SCA’s argument that it did not need to include the long-term management details in a supplemental EIS because it adequately described them in its site management plan for the BCP was insufficient. The Court stated that, even if the SCA reasonably waited to consider its long-term maintenance program, the supplemental EIS is specifically meant to detail newly discovered information. Despite the fact that the information was provided as part of the BCP, the “Brownfield Program and SEQRA serve related but distinct purposes,” and the site management plan was not a substitute for a supplemental EIS.

This decision highlights the distinction between the processes for both programs and the uncertainty with respect to proper compliance, especially when long-term monitoring measures may be difficult to determine at the early stages of a project when the SEQRA process is underway. The lesson to be learned is that SEQRA carries with it its own obligations that must be fulfilled separate and apart from other permitting and approval processes.

Phillips Lytle has an experienced SEQRA Practice Team. For more information, contact Adam S. Walters, Partner, at (716) 847-7023 or awalters@phillipslytle.com or Associate, Kimberly R. Barnashuk, at (716) 504-5784 or kbarnashuk@phillipslytle.com. ¦

Topics:  Brownfield Grants, Compliance, Contaminated Properties, Environmental Impact Report, Groundwater, Remedial Actions, SEQRA

Published In: Civil Procedure Updates, Construction Updates, Environmental Updates, Commercial Real Estate Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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