Court of Appeals Affirms Order for Supplemental Environmental Review for Public Schools Built on Contaminated Site

Mott Haven campus rendering. Credit: Perkins Eastman.

Community Group sued the School Construction Authority seeking a long-term maintenance and monitoring protocol for the Mott Haven School site. The Mott Haven school campus site, consisting of four public schools, was formerly a railroad yard in the South Bronx. The site contained soil and ground water that were significantly contaminated, and the site needed to be remediated before the campus could be built. The campus opened in 2010.

The New York State Department of Environmental Conservation (DEC) accepted the most contaminated section of the Mott Haven campus site into the Brownfield Cleanup Program in 2005. The School Construction Authority (SCA) filed the final version of its Environmental Impact Statement (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) in 2006. The EIS made detailed findings as to the environmental impacts of the project. The SCA completed the remediation measures on the site in 2007.

In 2007, prior to construction, the Bronx Committee for Toxic Free Schools, and others, filed an Article 78 proceeding. They alleged that the SCA violated SEQRA because it failed to include a detailed long-term maintenance and monitoring plan for the site in the EIS. The SCA responded that they were not able to include a long-term plan because, at the time they filed the EIS in 2006, remediation of the site was not yet complete. In 2008, the lower court ruled in favor of the community group and asked the SCA to file a supplemental Environmental Impact Statement.

Following the ruling, the SCA prepared a long-term site management plan, and submitted it to DEC for approval through the Brownfield Cleanup Program. Based on DEC’s approval, the SCA argued that there no longer was a need for a supplemental EIS filing. The lower court nevertheless upheld its original ruling as did the Appellate Division, First Department.

On October 23, 2012, the Court of Appeals unanimously affirmed. The Court held that the SCA’s methods for long-term maintenance and monitoring were too important not to be described in an EIS.

The Court assumed that the SCA most likely acted reasonably in postponing the creation of a detailed long-term maintenance and monitoring plan until it had completed the cleanup process, and that when this particular situation occurs, a supplemental EIS may be filed to satisfy the SEQRA process. Furthermore, the Court found that DEC’s approval of the site management plan under the Brownfield Cleanup Program did not “justify short-circuiting the SEQRA review.” SEQRA is designed to assure that all environmental issues are described in a publicly filed EIS that allows the public a statutorily-required period for public review and comment.

Judge Susan P. Read, in a concurring opinion, highlighted the uncertainty a project reviewable under SEQRA faces when also accepted in the BCP.  Judge Read hoped that DEC will clarify how the two can fit together, so as to offer a meaningful and non-duplicative review of a program, through upcoming proposed SEQRA amendments.

Bronx Comm. for Toxic Free Sch. v. NYC Sch. Constr. Auth., 2012 N.Y. Slip Op. 7051 (N.Y. October 23, 2012) (Attorneys: Gregory Silbert, for Bronx Committee; Janet L. Zaleon, for SCA).

By: Brian Kaszuba (Brian is the CityLand Editor and New York Law School Graduate, Class of 2004)

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