The New York Court of Appeals recently held that a supplemental environmental impact statement (“EIS”) is required to analyze potential impacts from the long-term maintenance and monitoring methods that were chosen for a Brownfield site, and included in its final site management plan, after Department of Environmental Conservation (“DEC”) approval of the Remedial Action Work Plan (“RAWP”) and issuance of a final EIS for the project. In Matter of Bronx Committee for Toxic Free Schools, et al., v. New York City School Construction Authority, et al., 2012 NY Slip Op 07051, the New York City School Construction Authority (“Authority”) planned to construct a school campus on a heavily contaminated former railroad yard in the Mott Haven neighborhood of the Bronx. The most contaminated portion of the project site was accepted by DEC into the State’s Brownfield Program and the Authority submitted its RAWP to DEC pursuant to the Brownfield statute. DEC approved the RAWP, on the condition that the Authority would develop a site management plan to provide for the operation and maintenance elements of the remedy.

The Authority then prepared an EIS as required under the State Environmental Quality Review Act (“SEQRA”). At the time of preparation of the RAWP and EIS, the Authority had not yet determined the maintenance and monitoring methods that would be required for the project, and believed that determining such methods prior to cleanup work and assessment of post-cleanup soil and groundwater conditions was premature. Therefore, the RAWP and both the draft and final versions of the EIS omitted discussion of the long-term maintenance and monitoring methods that would be employed at the site, including the inspection of structures to ensure that they are in good condition and the periodic testing of groundwater for contaminants.

After the RAWP was submitted to DEC and the final EIS was issued, the Authority developed a final site management plan (including a long-term monitoring plan as required by the Brownfield Cleanup Program regulations), a draft of which was circulated for public comment. Petitioners argued that the final EIS was flawed in its failure to address the long-term maintenance and monitoring measures and that a supplemental EIS should have been prepared to analyze the chosen measures. The Authority did not challenge Petitioners’ contention that these measures are “essential” under SEQRA.

In an October 23, 2012 decision, the Court of Appeals held that the Authority was required under SEQRA to supplement its EIS to describe such long-term measures because they were undisputedly “essential” to protecting the site’s occupants from dangerous contaminants. SEQRA’s implementing regulations provide that an agency may require a supplemental EIS to analyze “changes proposed for the project,” “newly discovered information” or changed circumstances that relate to the project and may have significant adverse environmental impacts that were not addressed or inadequately addressed in the EIS (6 NYCRR Sec. 617.9[a][7]). Although the Authority had deemed it premature to describe the long-term maintenance and monitoring procedures at issue prior to completion of the initial remedial measures, the Court held that mitigation measures of undisputed importance may not escape the SEQRA process and ordered the preparation of a supplemental EIS. It remains a question whether the Court would have decided this case differently had the Authority not subjected the requirements of the Brownfield Program to SEQRA review.

With respect to the interplay between the Brownfield statute and SEQRA requirements, Judge Smith’s opinion states: “Nor does the submission of the site management plan to the DEC, or the approval of that plan as part of the Brownfield process, justify short-circuiting SEQRA review” (Ibid., p. 5). In her concurrence, Judge Read highlights uncertainty in this regard: “But, as noted previously, it is uncertain how [Brownfield Cleanup Program] and SEQRA requirements fit together so as to offer meaningful and non-duplicative review of a project. Perhaps DEC will clarify this issue in the context of its proposed SEQRA amendments” (Ibid., p. 8).

Here, at least, even where DEC has approved a RAWP for a Brownfield site that did not discuss long-term maintenance and monitoring methods, and, subsequent to the issuance of a final EIS for the project approves a final site management plan including discussion of such methods, a supplemental EIS is required to analyze remedial measures in the site management plan that may have significant adverse impacts on the environment. The Court of Appeals opinion is available at http://www.nycourts.gov/reporter/3dseries/2012/2012_07051.htm