| Matter of Bronx Comm. for Toxic Free Schools v New York CitySchool Constr. Auth. |
| 2011 NY Slip Op 05853 [86 AD3d 401] |
| July 7, 2011 |
| Appellate Division, First Department |
| In the Matter of Bronx Committee for Toxic Free Schools et al.,Respondents, v New York City School Construction Authority et al.,Appellants. |
—[*1] Weil, Gotshal & Manges, LLP, New York (Christopher D. Barraza and David R. Berz ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 28,2008, which, to the extent appealed from as limited by the briefs, granted the petition to directrespondent School Construction Authority (SCA) to prepare a supplemental environmentalimpact statement (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) (ECL8-0101 et seq.) with respect to long-term maintenance and monitoring of measures for theremediation of contaminated soil and groundwater at the Mott Haven School Campus site,unanimously affirmed, without costs. Order, same court and Justice, entered on or aboutNovember 18, 2009, which granted respondents' motion for renewal and reargument and adheredto the original determination, unanimously affirmed, without costs.
Respondents' contentions notwithstanding, the long-term monitoring measures, developedand implemented in their entirety after the final EIS was issued in October 2006, constituted"changes proposed for the project" (6 NYCRR 617.9 [a] [7] [i] [a]). Given, among other things,the Department of Environmental Conservation's July 2006 directive to SCA to develop a sitemanagement plan, which by definition under the applicable Brownfield Cleanup Program (BCP)(see ECL art 27, tit 14) regulations includes a long-term monitoring plan (see 6NYCRR 375-1.2 [at]; 375-1.6 [c] [1] [iv]), it is evident that information about long-termmonitoring measures was of sufficient "importance and relevance" to warrant the preparation of asupplemental EIS (6 NYCRR 617.9 [a] [7] [ii] [a]).
By failing to make any mention of the need for long-term monitoring in the initial EIS, SCAfrustrated the purpose of SEQRA, which is to subject agency actions with environmental impactto public scrutiny (see ECL 8-0109; 6 NYCRR 617.1 [c]). Indeed, there is no recordevidence that SCA took the requisite "hard look" at the issue of long-term maintenance andmonitoring of remediation measures until 2008, when it issued its final site management plan(see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 [*2]NY3d 219, 231-232 [2007]). This constitutes a failure of theagency's obligations under SEQRA (seeMatter of Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d1312 [2005], appeals dismissed 7 NY3d 803 [2006]; Matter of PenfieldPanorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342, 349 [1999]).
Nor does the fact that SCA was acting under the BCP shield the remediation measures fromSEQRA scrutiny. BCP remediation measures that "commit the . . . agency tospecific future uses or actions" are subject to SEQRA review (6 NYCRR 375-3.11 [b] [1] [i]).The final site management plan provided that the Mott Haven School Campus site could be usedfor a school campus only, thus committing SCA to a specific site use. In any event, the BCPremediation measures applied only to the BCP area, whereas most of the site was not subject tothe BCP and nonetheless was subject to SEQRA review.
Respondents contend that, because SCA was relying on BCP procedures, it couldappropriately defer consideration of long-term monitoring measures until the completion ofremediation. As noted, however, SCA's participation in the BCP did not exempt the project'senvironmental impacts from SEQRA scrutiny, and under SEQRA it was impermissible for SCAto omit a known remediation issue from the EIS with the idea of taking up that issue at a laterdate (see Penfield, 253 AD2d at 349).
We reject respondents' contention, raised in their motion for renewal and reargument, thatSCA's development of the final site management plan (SMP), which entailed circulation of adraft for public comment, obviates any need for a supplemental EIS. The SMP is not asupplemental EIS, and respondents have not established that the development of the SMPfollowed the procedures for the preparation of a supplemental EIS. Since SEQRA proceduresmust be strictly complied with (see Matter of King v Saratoga County Bd. of Supervisors,89 NY2d 341, 347 [1996]), SCA's issuance of the final SMP did not cure the deficiencies in thefinal EIS. Concur—Gonzalez, P.J., Tom, Andrias, Moskowitz and Freedman, JJ.