SUPREME COURT OF THE STATE OF NEW YORK COUNTY … - 07.05... · SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ... For Judgment Under Article 78-against- ... PETITIONERS'

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF BRONX------------------------------------------------------------------------xIn the Matter of the Applications of Bronx Committe efor Toxic Free Schools, Jane Maisel, Chaira Salem,Omar Salem (a minor), Kathleen Saunders ,John Fielder, D . Lee Ezell, and Yolanda Gonzalez

Petitioners ,

For Judgment Under Article 78

-against-

Index No. 13800-07Justice Patricia AnneWilliams

New York City School Construction Authority,New York City Department of Education ,City of New York

Respondents .------------------------------------------------------------------------ x

PETITIONERS' REPLY BRIEF IN SUPPORT OF ARTICLE 78 PETITION

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Z

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. IN FAILING TO PROVIDE A LONG-TERM MAINTENANCE ANDMONITORING PLAN FOR THE MOTT HAVEN SITE, SCA HAS NOT

TAKEN THE "HARD LOOK" REQUIRED BY SEQRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The SCA's FEIS Is Incomplete Because Consideration Of

Appropriate Mitigation Measures Are Absent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The FEIS Is Incomplete And Its Approval Was Premature,

Reckless And Improper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III . THE SCA MUST ISSUE A SUPPLEMENTAL ENVIRONMENTA LIMPACT STATEMENT THAT INCLUDES A FINAL SMP SUBJEC TTO PUBLIC COMMENT AND JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TABLE OF AUTHORITIES

STATE CASES

ACORN v. Bloomberg, 2006 WL. 2686520 (Sup . Ct . N.Y. Cty. 2006) . . . . . . . . . . . . . . . . . . . . . .17 ,17,18

Aldrich v. Pattison, 107 A.D.2d 258, 486 N.Y.S .2d 23 (2d Dep't 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

City of Glens Falls v . Bd. of Education of Glens Falls City Sch . District, 88A.D .2d 233, 453 N.Y.S .2d 891 (3d Dep't 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Coca-Cola Bottling Co . of New York, Inc . v. Board. of Estimate of City of Ne wYork, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 ,18,19

Cty. of Orange v. Village of Kiryas Joel, 11 Misc3d 1056(A), 815 N.Y.S.2d 494(Sup . Ct . Orange Cty. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

DiVeronica v. Arsenault, 124 A.D .2d 442, 507 N .Y.S .2d 541 (4th Dep't 1986) . . . . . . . . . . . . . .12

Eadie v. Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, 821 N .Y.S.2d 142(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 ,10,1 1

Ecumenical Task Force of the Niagra Frontier v . Love Canal Area Revitalizatio nAgency, 179 A.D.2d 261, 583 N.Y.S.2d 859 (4th Dep't 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Essex Cty. et al. v . Zagata, 91 N.Y.2d 447, 672 N.Y . S.2d 281 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Halperin v . City of New Rochelle, et al ., 24 A.D.3d 768, 809 N .Y.S .2d 98 (A.D.2d Dep't 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jackson v . New York State Urban Development Corp ., 67 N .Y.2d 400, 503N.Y.S.2d 298 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 6, 12, 18, 19

King v. Saratoga Cty. Bd. of Superintendents, 89 N.Y .2d 341, 653 N .Y.S .2d 233(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2

Lowe's Home Ctrs., Inc. v. Venditto, 2007 WL. 852057 (Sup. Ct. Nassau Cty .Mar. 19, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nash Metalware Co ., Inc. v. Council of City of New York, 2006 WL. 3849065(Sup. Ct. N.Y. Cty. Dec. 21, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Bd., 25 3

A.D .2d 342, 688 N.Y.S .2d 848 (4th Dept 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 16, 1 9

1

Pyramid Co. of Watertown v . Planning Bd. of Town of Watertown, 24 A.D.3d

1312, 807 N .Y.S.2d 243 (A.D . 4th Dep't 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Stop the Barge ex rel. Gilrain v. Cahill, 1 N.Y.3d 218, 771 N.Y.S .2d 361 (2003) . . . . . . . . . . . . .20

STATESTATUTES

STATE ENVIRONMENTAL QUALITY REVIEW ACT ,

N.Y. Envtl . Conserv. Law § 8-0101 et seq . (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

BROWNFIELD CLEANUP PROGRAM ,

N.Y . Envtl . Conserv. Law § 27-1401 et seq . (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 ,7,10

STATE REGULATIONS & GUIDELINE S

6 N .Y. Comp . Codes R. & Regs . tit . 6, § 375-1 .8(a)(5) (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

6 N.Y. Comp. Codes R . & Regs . tit . 6 § 617 .1 et seq . (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6, 11, 2 0

Assemblyman Thomas P. DiNapoli, Comments on Draft Regulations for StateSuperfund Program, Environmental Restoration Program, Brownfield Clea nUp Program, 6 N.Y.C.R .R. Part § 375 (Mar . 27, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 0

Dep't of Envtl Conserv ., Div. of Envtl . Remediation, Draft Brownfield CleanupProgram Guide, § 5.3 (May 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1

iii

PRELIMINARY STATEMENT

Petitioners and Respondents share a common goal : the timely remediation

of the Mott Haven Site to enable construction of much -needed schools that are safe for

the children and teachers in the surrounding community . While Petitioners do not dispute

that the New York School Construction Authority ("SCA") has considered many of the

potential environmental impacts to the Site and surrounding area, and has adopted a

number of measures to mitigate those impacts through a Final Environmental Impact

Statement ("FEIS"), its actions and assessments fall short of what the law requires to

protect public health and safety. Under the New York State Environmental Quality

Review Act ("SEQRA"), the lead agency (in this case, the SCA) must disclose a plan for

long-term maintenance and monitoring of the site prior to approval of the FEIS in order

to minimize the environmental impacts on human health to the maximum extent

practicable . Moreover, as a matter of law, members of the Mott Haven community are

entitled to pa rticipate in a robust public commentary p ri or to the SCR's adoption of a

development protocol for the Site . Because the SCA neglected to include any such plan

in its FEIS, Petitioners were denied any oppo rtunity to comment meaningfully on what

should have been a critical part of that protocol - the long-term maintenance and

monitoring plan, or Final Site Management Plan ("SMP"), to accompany the proposed

mediation measures .

Without explanation, Respondents themselves have conceded that the

SCA has not yet developed - much less disclosed for public scrutiny - a long-term

maintenance and monito ring plan for the Site as part of the FEIS or any other publicly

filed document . Importantly, Respondents do not dispute the critical impo rtance of a

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long-term maintenance and monitoring program as integral to the SCA's remediation

measures and crucial to ensuring that its remediation measures are protective of human

health and the environment.

Disregarding a meaningful decision-making process, Respondents make

the indefensible assertion that the SCA should be taken at its word that it is "committed

to developing a robust, long-term monitoring plan to ensure that its remediation efforts

remain fully protective of human health and the environment, in full compliance with its

statutory obligation to do so ."' They ask this Court to turn a blind eye to the SCA's

failure to plan for maintenance and monitoring prior to agency approval of the FEIS, a

request that (i) is impermissible under New York law ; (ii) is unjustifiably reckless, given

that the absence of any plan in place for long-term maintenance and monitoring prior to

remediation threatens the safety of the project and forecloses meaningful public

participation and commentary ; and (iii) would leave Petitioners without a legal remedy to

address any deficiencies within the plan, if and when it ultimately is issued by the SCA .

This City is all too aware of the need for remedial measures to include

protocols to prevent exposure to toxic or hazardous contaminants . Such prevention

depends in large part (and often entirely) upon the systems in place at a site to monitor

and detect the potential or actual contamination, discharge or emission of substances

harmful to human health or the environment . Indeed, this is particularly true for this Site,

where the health of schoolchildren is at stake . Respondents should welcome the

opportunity to provide comfort to parents and teachers and other concerned citizens tha t

' Resp. Br. at 20 (emphasis added) .

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2

would follow from proposing a long-term maintenance and monitoring plan that is

subject to public and legal scrutiny .

Accordingly, Petitioners respectfully request that this Court issue an order

requiring the SCA to prepare, prior to construction, a proposed long-term maintenance

and monitoring plan as part of a supplemental EIS and retain jurisdiction of this matter

until such time as that Agency has properly issued a sufficiently detailed FEIS to fulfill

the legal obligations owed Petitioners and the entire Mott Haven community .

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3

ARGUMENT

1.

STANDARD OF REVIEW.

Judicial review of an FEIS under SEQRA requires consideration of

whether the lead agency identified the relevant areas of environmental concern, took a

"hard look" at them, and made a reasoned elaboration of the basis of the determination

after a process that includes meaningful public comment .2 Specifically, SEQRA review

requires courts to determine whether the lead agency considered . (i) the potential

environmental impacts of the project, including long-term and short-term effects, and (ii)

mitigation measures for minimizing future environmental harms .3 Under the "rule of

reason," however, a court may not substitute its judgment for that of an agency unless

proposed mitigation measures have no rational basis in the record .4 But the rule of reason

does not prevent courts from insuring that agencies "will honor their mandate regarding

environmental protection by complying strictly with prescribed procedures and giving

reasoned consideration to all pertinent issues revealed in the [SEQRA] process ."5

2 Jackson v. New York State Urban Dev . Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 305(1986) ; see also Cty. of Orange v. Vill . of Kiryas Joel, 11 Misc .3d 1056(A), 815 N .Y.S.2d 494(Sup. Ct . Orange Cty . 2005) (rejecting EIS because, inter alia, village failed to respondadequately to petitioners' comments during public comment process) .

3 See, e.g., Jackson, 67 N.Y.2d at 414-415, 503 N.Y.S.2d at 303-04; Ecumenical Task Force ofthe Niagra Frontier v. Love Canal Area Revitalization Agency, 179 A.D.2d 261, 268-70, 583N.Y.S.2d 859, 864, (4th Dep't 1992) ; Aldrich v. Pattison, 107 A.D.2d 258, 263, 486 N .Y.S.2d23, 27-28, (2d Dep't 1985) ; Lowe's Home Ctrs., Inc . v. Venditto, 2007 WL 852057, at * 1 (N.Y.Sup. Ct . Mar. 19, 2007) .

4 See Jackson, 67 N.Y.2d at 417, 503 N.Y.S.2d at 305 .

5 Id.

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H. IN FAILING TO PROVIDE A LONG-TERM MAINTENANCE ANDMONITORING PLAN FOR THE MOTT HAVEN SITE, SCA HAS NOTTAKEN THE "HARD LOOK" REQUIRED BY SEQRA .

SEQRA requires that, prior to approving a project, the lead agency

evaluate and implement practicable mitigation measures to minimize the impact of that

project on human health and other aspects of the environmen t .6 Indeed, as Respondents

concede, SEQRA requires the "imposition of mitigation measures . . . to the maximum

extent practicable, consistent with social, economic and other essential considerations ."7

As explained below, SCA has not provided, either within the FEIS or any other document

referenced therein, any account whatsoever of how it intends to implement and maintain

the mitigation measures intended to minimize the environmental impacts caused by the

contaminated soil and groundwater conditions that will or have the potential to remain at,

under or nearby the Site . Thus, without any substantive proposal for a long-term

maintenance and monitoring plan, it is impossible for SCA to have taken the "hard look"

required by the statute . Moreover, the public has been deprived of any opportunity to

comment on the SCR's proposed plan .

Enginee ring controls like those proposed by the SCA are put in place to

block dangerous exposure pathways . However, those controls ri sk total failure without a

6 N.Y. Envtl . Conserv. Law §§ 8-0109(2)(b), 8-0109(f) (McKinney 2007) ; 6 N.Y.C.R.R. §§617 .2(1), 6179(b)(5)(iv) ; see Jackson, 67 N.Y.2d at 421-22, 503 N .Y.S.2d at 307-08 ; Halperin v.City of New Rochelle, et al., 24 A.D.3d 768, 775, 809 N .Y.S.2d 98, 107 (2d Dep't 2005) ; accord,Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 A.D.3d 1312, 1313-14, 807N.Y .S .2d 243, 246 (4th Dep't 2005) (lead agency failed to take necessary hard look at mitigationmeasures) .

7 Resp . Br. at 18 .

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plan in place to maintain and monitor them for the life of any contamination .8 Although

the necessary information is available, the SCA has failed to design a long-term

maintenance and monitoring plan and submit such a plan to public scrutiny . Without

having considered, during the mandated environmental review process, how it will ensure

that the proposed engineering controls will remain functional and protective for the life of

the contamination, the SCA cannot be said to have taken the requisite "hard look" at how

it will mitigate the potential adverse impacts it has identified .

A.

The SCR's FEIS Is Incomplete Because Consideration OfAppropriate Mitigation Measures Are Absent .

A comprehensive mitigation pursuant to SEQRA necessarily requires a

plan that demonstrates that the lead agency has considered : (i) how it will operate,

maintain, and monitor its mitigation measures ; (ii) who the agency will designate to

perform such duties ; and (iii) ultimately, whether such mitigation measures are feasible i n

terms of cost and other empirical constraints .9 The SCA, as the lead agency, considered

none of these things. A thorough evaluation of mitigation measures is particularly crucial

- and required - where the effectiveness of engineering controls will necessarily affect

human health .10 That is precisely the case here . Of course, where the well-being an d

8 See Aff. of Peter M. Strauss In Supp . of Verified Pet . ("Strauss Aff.") 116-8 .

9 Strauss Aff. 1113, 14 ; see also Resp. Br. at 21 (noting that an site management plan "must besubmitted to and approved by DEC - as the last stage of the remedial plan . . . [to] satisf[y] itsobligation under SEQRA to take a hard look at contamination issues at the site and set forth areasoned elaboration of its mitigation plan") .

10See N.Y. Envtl . Conserv . Law § 08-0109(2)(d) (McKinney 2007) (agency required to adopt

mitigation measures designed to minimize environmental impact) ; 6 N.Y.C.R.R. § 617.2(1)(definition of "environment" explicitly includes human health) ; Jackson, 67 N.Y.2d at 416, 503

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6

development of schoolchildren is concerned, it is an uncontroversial proposition that a

lead agency like the SCA should make the utmost effort to demonstrate that it is

committed to ensuring that the chosen mitigation measures remain effective long after the

remedial process and construction have ended . "

Notwithstanding this requirement under SEQRA, Respondents concede

that the SCA has not yet taken a hard look - or any look, for that matter, in its public

filings - at a long-term maintenance and monitoring plan for the Site . 12 Rather, in its

November 6, 2006 Statement of Findings, the SCA merely concluded that the Project's

"adverse environmental impacts . . . can be largely mitigated by the measures identified in

the MS."13 The FEIS, in turn, incorporates by reference the Remedial Action Work

Plan ("RAWP"), approved pursuant to the Brownfields Cleanup Program (`BCP"),14 as

the sole mitigation measure for the Site . 1 5

N.Y.S .2d at 305 (SEQRA requires agency to adopt mitigation measures that minimizeenvironmental impact) ; ACORN v. Bloomberg, 824 N.Y.S. 2d 752, 2006 WL 2686520, at *8(Sup. Ct . N.Y. Cty. Sep. 19, 2006) (SEQRA requires all state and municipal agencies to give dueconsideration to preventing environmental damage) ; see also Strauss Aff. 115-7 .

11 Strauss Aff.1 14 .

12 Resp . Br . at 20 ("[F]inalization of the long-term monitoring plan must wait until afterremediation work has been completed at the site .") .

13 Resp. Ex . 4 at 7; Aff. of Vinicius Castagnola in Opp'n to the Verified Pet . and in Supp . of theCity Resp'ts Verified Ans . 1 19 ("Castagnola Aff.") .

14 N .Y. Envtl . Conserv . Law § 27-1401 et seq. (McKinney 2007) .

15 Resp . Ex. 2 at 10-2 - ("[T]he remediation measures below would be implemented inaccordance with NYSDEC Brownfield Cleanup Program requirements . These measures wereapproved by NYSDEC in consultation with the New York State Department of Health in a letterdated July 5, 2006 .") (emphasis in original, as blackline to Draft EIS) .

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7

The RAWP does describe proposed remedial actions for the Site; 16

critically, however, the SCA neglected to include in the RAWP any explanation as to

how it plans to operate, maintain, and monitor such mitigative efforts . 17 This defect was

recognized by the Department of Environmental Conservation ("DEC"), which only

gpproved the RAWP conditionally , subject to the express requirement that "New York

City School Construction Authority must develop a site management plan for Department

approval to . . . provide for the operation and maintenance of the components of the

remedy, and if applicable, any vapor intrusion mitigation system ." 18 Although DEC

conditionally approved the RAWP on July 5, 2006,19 it was not until eight months later,

on March 17, 2007, that the SCA finally issued a draft Site Management Plan ("SMP") .

But this "draft SMP" is totally insubstantial . It is a mere outline, lacking any substantive

discussion of, much less plan for, long-term maintenance and monitoring of the Site . 20

No explanation was provided within the draft SMP (or any other public filing) for this

delay, other than the unsupported assertion that "finalization of the long-term monitoring

plan must wait until after remediation work has been completed at the site . ,21 No effort

was made to identify what information is lacking now that prevents the SCA fro m

proposing an SMP .

16 Resp . Ex. 18 at 8-10; Resp. Ex. 22.

17 Resp . Ex. 18 at ES-2, 27; Strauss Aff.11 12-13 .

18 Resp . Ex. 24, at 1 .

19Id.

20 Resp . Ex. 28 .

21 Id. ; Resp. Br . at 20 .

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8

Notwithstanding its inexplicable omission, the SCA clearly recognizes the

need for such a plan to be in place in order to satisfy the conditions for DEC approval, as

evidenced by the following "placeholder" in the draft SMP :2 2

6.0 Operation and Maintenance Plan

This section will contain the Operation and MaintenancePlan for the Site and will detail the procedures necessaryfor future operation and maintenance of the components of

the engineering controls (caps, SSDS) . Also included willbe a Soil Management Plan that details the procedures toprotect the integrity of the cap . . . .

In short, SCA has not taken - nor indicated when it will take - the "hard look" at

mitigation that New York law requires in accordance with SEQRA .

Finally, to the extent that SCA argues that the time to challenge the SMP

has passed because the RAWP has been conditionally approved by the DEC pursuant to

the BCP,23 Respondents miss the point . Petitioners submitted timely comments as part of

the SEQRA process . It would have been illogical for the SCA to have separately

solicited comments under SEQRA if the parties who had not commented earlier were

precluded . It was the SCA's choice to use the same materials it submitted in the BCP

review course for SEQRA purposes . This subjected those materials to a second round of

public scrutiny under a different statute . Thus, regardless of whether the RAWP meets

the requirements of the BCP, it simply does not satisfy the mitigation requirements o f

22 Resp . Ex. 28, 16.0 (emphasis added) ; see also Strauss Aff.1 12 .

23 See Resp . Br . at 1, 20-21 .

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SEQRA because it lacks a long-term maintenance and monitoring program, which is

essential to protect the health of future occupants . 24

Moreover, a long-term maintenance and monitoring plan is also required

under the BCP, as reflected by the fact that the DEC's approval of the RAWP is

contingent upon the SCA's issuance of a final SMP .25 The regulations governing the

remedy selection at Brownfield sites are clear : 26

Where the remedial program for a site requires ongoing sitemanagement, a site management plan will be developed for

the site which will include, as applicable for the remedialprogram, the following plans :

(i) institutional and engineering control plan ;

(ii) monitoring plan ; and/or

(iii) operation and maintenance plan .

The Draft Brownfield Cleanup Program Guide further provides that, for

projects where the protectiveness of the remedy is dependent on continued long-term

maintenance and monitoring, as Respondents have conceded is the case here, there mus t

24 Strauss Aff.11 12-14 .

25 Resp . Ex. 24 .

26 6 N .Y.C.R.R. § 375-1.8(a)(5) (2007) . Moreover, as the commentary to the draft regulationsfurther provides, long-term maintenance and monitoring "is a critical requirement since failure ofa site control could result in human exposure and contamination of the environment . A study bythe U.S. Congress General Accountability Office identified failures in maintaining such controls(GAO Report GAO-05-163, January 2005) . Therefore, it is important that Brownfield sitecontrols are reliable and well-maintained, and that environmental easement notices are recordedand strictly followed ." Assemblyman Thomas P . DiNapoli, Comments on the Draft Regulationsfor the State Superfund Program, Environmental Restoration Program, Brownfield Clean UpProgram, Draft 6 N.Y.C.R.R. § 375 (Mar . 27, 2006) .

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10

be a formal long-term maintenance and monitoring plan with specific requirements . 27

Therefore, the SCA is required to issue an long-term maintenance and monitoring plan

under the BCP as well as under SEQRA .

B.

The FEIS Is Incomplete And Its Approval Was Premature, RecklessAnd Improper.

Because the FEIS was approved prior to the issuance of a plan for long-

term maintenance and monitoring of the Site, the SCA necessarily was unable to exercise

the requisite "critical judgment" regarding mitigation required under SEQRA ; thus SCA

approval of the FEIS was premature . 28 Respondents cite the conditional approval by the

DEC and the New York State Department of Health ("DOH") of the RAWP (the

remediation plan submitted pursuant to the BCP) as proof that their "commitment to

develop an SMP" during the last stage of remediation is "entirely reasonable" and

satisfies their obligation to take a hard look at mitigation under SEQRA .29 But, as noted

earlier, these approvals were conditional, and the DEC retained the power to reject a

future SMP. By contrast, the SCA seeks to prevent Petitioners from having any right to

judicially challenge the SMP when the SCA finally gets around to writing it . Separate

and apart from the BCP, SEQRA imposes an obligation on agencies to conside r

27 N .Y. State Dep't of Envtl . Conserv., Div . of Envtl . Remediation, Draft Brownfield CleanupProgram Guide, § 5 .3 (May 2004) ; see also Strauss Aff.1 11

28 See Penfield Panorama Area Cmly, Inc . v . Town of Penfield Planning Bd., 253 A.D.2d 342,349, 688 N.Y.S.2d 848, 853 (4th Dep't 1999) .

29 Resp . Br. at 21 .

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"mitigation measures proposed to minimize the environmental impact ."30 The obligation

to mitigate environmental impacts requires a lead agency to do more than merely select a

remedy. The lead agency must also consider how it will insure that the chosen remedy

remains effective on a long-term, ongoing basis . 31 Courts repeatedly have held that an

agency cannot defer strict compliance with SEQRA procedures until after an EIS process

is completed because "departures from SEQRA's procedural mechanisms thwa rt the

purposes of the statute ." 32 Here, neither the RAWP nor the FEIS contained a meaningful

consideration of long-term maintenance and monit oring at the time the SCA approved the

project - and, to date, neither does . 33 Rather, the SCA plans to address maintenance and

monitoring du ring the last stage of remediation, well after the FEIS has been issued and

remediation activities are virtually complete . 34 Thus, this decision to defer the final SMP

plainly flouts SEQRA's purpose and requirement that a lead agency "relate

30 N.Y. Envtl . Conserv. Law § 8-0109(2)(f) (McKinney 2007) ; 6 N.Y.C.R.R. § 617.9(b)(5)(iv)(2007) .

31 See 6 N.Y.C.R.R. § 617.1(b) (2007) (under SEQRA, agencies have obligation to protectenvironment for use and enjoyment of future generations) .

32 King v. Saratoga Cty. Bd. of Supervisors, 89 N.Y.2d 341, 347, 653 N .Y .S .2d 233, 235 (N .Y.1996) (holding that the mandate that agencies implement SEQRA's procedural mechanisms to the"fullest extent possible" reflects the Legislature's view that the substance of SEQRA cannot beachieved without its procedure") ; see also Penfield Panorama, 253 A.D . 2d at 349, 688 N.Y.S.2dat 853 ; DiVeronica v. Arsenault, 124 A.D.2d 442, 444, 507 N .Y.S.2d 541, 543 (3rd Dep 't 1986)("Compliance with SEQRA must occur before the agency acts ; after the fact compliance is of noavail . . . strict compliance is required") ; City of Glens Falls v . Bd. of Educ . of Glens Falls CitySch. Dist., 88 A.D.2d 233, 237, 453 N .Y.S.2d 891, 894 (3d Dep't 1982) ("it is abundantly clearthat the spirit and intent of SEQRA demand that an EIS, or at least a draft environmentalstatement, was required to be prepared before the board passed the resolutions herein challengedby petitioners .") .

33 See Resp. Exs . 2, 18 .

34 Resp . Br . at 21-23 .

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environmental considerations to the inception of the planning process . . . ."3 5

Respondents' assertion that SCA has complied with DEC regulations under the BCP -

which, in actuality, is not the case, since the DEC expressly conditioned its approval

upon the issuance of the as-yet-nonexistent Final SMP - is baseless . A proposed long-

term maintenance and monitoring plan available for public comment is a critical and

indispensable component of the EIS process, without which a "hard look" at mitigation is

impossible . 36 The record in this case shows that the process was fatally flawed .

As more fully described below and supported by the Affidavit of Peter

Strauss, the remedial measures selected by the SCA for the Mott Haven Site require

careful analysis of supporting long-term maintenance and monitoring techniques and

processes . Such analysis, subject to public comment, is entirely feasible now . The

SCA's deferral of the proposal of an SMP is not only a violation of law, but indefensible

given the facts in this case .

In the instant case, the SCA already has identified several necessary

remedial measures for the Site, and there is no uncertainty whatsoever that a long-term

maintenance and monitoring plan will be needed for each of those measures .37 On the

35 N .Y. Envtl . Conserv. Law § 8-0109(4) (McKinney 2007) ; accord, Arsenault, 124 A.D.2d at444, 507 N .Y.S.2d at 543 ("Compliance with SEQRA must occur before the agency acts ; afterthe fact compliance is of no avail .") ; City of Glens Falls, 88 A.D.2d at 237, 453 N.Y.S.2d at894 ("it is abundantly clear that the spirit and intent of SEQRA demand that an EIS, or at least adraft environmental statement, was required to be prepared before the board passed theresolutions herein challenged by petitioners .") ; see Jackson, 67 N.Y.2d at 417, 503 N .Y.S.2d at305 (court review insures that agencies will comply strictly with prescribed procedures and givereasoned consideration to all pertinent issues revealed in EIS process) .

36 Strauss Aff.116-8 .

37 Strauss Aff.15; Resp. Br. at 20-22; Resp. Ex. 28114.1-4 .3, 6 .0 .

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contrary, such a plan is crucial to the proper determination of whether proposed

engineering controls will be sufficient, or the level of expertise that will be required of

SCA personnel and/or private contractors to conduct maintenance and monitoring . 38 Far

from arguing that any "uncertainty" remains on these - or any other - issues that would

preclude the SCA from issuing a plan for long-term maintenance and monitoring at this

time, Respondents already have identified the specific remediation measures for the

Site .39 Thus, there can be no uncertainty as to what measures require long-term

maintenance and monitoring .

The SCA identified in its FEIS that construction of a vapor barrier and

active sub-slab depressurization system beneath the proposed school is needed to prevent

any potential residual vapors from entering the school in the future .40 However, the SCA

has neglected to provide any description of how it will monitor the effectiveness of the

vapor barrier, a crucial step in any remediation plan, given that vapor barriers are

notorious for failing, either because of improper installation or deterioration over time . 41

In particular, the SCA has not identified the approximate frequency of indoor air samples

or inspection of preferential pathways, among other necessary components of a long-term

monitoring plan . 42 Respondents have proffered no explanation whatsoever as to why a

38 Strauss Aff. 117, 13, 14 .

39 Resp . Ex . 2 at 10-2 ; Resp. Ex . 28112.4 et seq .

40 Strauss Aff. 9C 14(b) ; Resp. Ex . 2, at 10-2 .

41 Strauss Aff. 14(b) .

421d.

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monitoring plan for the vapor barrier could not have been addressed for public comment

prior to issuance of the FEIS . Instead, the SCA merely notes in the its Draft SMP:43

This section will provide details of the vapor barrier whichwill be installed beneath the school . . . . Site specificinstallation requirements to insure continuity of vaporbarrier will be included in this section .

Similarly, the SCA already has identified through the FEIS that it propose s

to cover areas of the Site that will contain levels of contamination above Recommende d

Soil Cleanup Objectives .`' The importance of describing in detail how the condition of

the cap will be monitored (e.g., the number of inspections per year of the synthetic turf,

asphalt and concrete, and soil covering) and what steps will be taken if any p art of the cap

system shows signs of failure, is undisputed .45 Notwithstanding this certainty,

Respondents have not offered any explanation for the SCA's delay in issuing a plan for

long-term maintenance and monito ring of the soil cap .46

The draft SMP provides no estimate of how much operating and

maintaining such measures will cost, nor does it give any indication that the SCA has

actually considered what level of expert ise will be required to implement those measures

or how they will be funded .47 Inherent in an agency's obligation to mitigate

43 Resp . Ex. 2814 .1 .2 .

44 Strauss Aff. 114(a) ; Resp. Ex. 2, at 10-2 .

45 Strauss Aff. 114(a) ; see also Resp. Ex. 28 ,114.1 .4, 4 .2 .2, 4 .3, 6 .0.

46 Other examples of identified remediation measures that inexplicably lack any plan for long-term maintenance and monitoring include : (i) the sub-slab depressurization system; (ii) hydraulicbarrier; and (iii) in-situ solidification of contaminants . Strauss Aff.11 14(c)-(e) ; Resp. Ex . 2, at13-4 ; Resp. Ex. 28112.4.6, 4 .1 .1, 4 .1 .3, 6 .0 .

47 Strauss Aff.113 .

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environmental impacts is the obligation to consider cost of capital as well as the

appropriate number and expertise of personnel required to implement a mitigation plan,

in order to determine whether those proposed measures are economically feasible .48

Failure to evaluate the estimated cost of remedial measures - and the corresponding

burden on an agency's personnel and budget - on the front end runs the potentially

disastrous risk that funds will not be appropriately allotted to safely and successfully

complete the remediation process .49 Public comment as to whether projected costs are

realistic is a key component of this analysis .5 0

Not only would it have been possible for the SCA to have proffered an

long-term maintenance and monitoring plan at the time the FEIS was issued, the proposal

of such a plan prior to remediation is critical to ensuring that an agency properly

evaluates whether it possesses the requisite expertise, personnel, and funding to guarantee

the long-term viability of the maintenance and monitoring program.51 Indeed,

consideration of long-term maintenance and monitoring is so integral to the evaluation of

an entire remediation that New York case law forbids the issuance of an FEIS where, as

the SCA has here, the lead agency has deferred consideration of such issues . In Penfield

Panorama Area Cmty, Inc. v. Town of Penfield Planning Board, 52 the Appellate Division

affirmed the lower court's rejection of an FEIS where the lead agency conditione d

48 Id. 9[9[ 13, 14 .

49 Id. 9[9[ 6, 14.

50 Strauss Aff.11 12-13 .

51 Strauss Aff.11 13-14 .

52 Penfield Panorama, 253 A.D .2d at 349, 688 N .Y . S.2d at 853 .

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approval of the project on an agreement to get approval of a site remediation plan from

the DEC and DOH prior to construction . Finding that a lead agency may not defer

critical judgment of all issues presented in the Draft EIS, the court held that "deferring

resolution of the remediation was improper because it shields the remediation plan from

public scrutiny."53 By the same token, the Respondents cannot expect this Court to

uphold an FEIS that does not include any plan whatsoever for long-term maintenance and

monitoring of the Site .

The two cases cited by Respondents in support of their position are

inapposite . Both cases concerned unique situations not analogous to this case . They do

not represent the general proposition that the preparation of a SMP for a project may

always be deferred, especially when, as is the case here, the information is available to

prepare one .

In Eadie v . Town Board of the Town of North Greenbush,54 the Court of

Appeals held that the procedural requirements of a Generic Environmental Impact

Statement (as opposed to the more stringent, site-specific requirements of an FEIS) were

fulfilled without a mitigation plan for the traffic problems that could be anticipated from

the town's proposed rezoning, because the town had found that "a more precise plan for

traffic mitigation was impractical until the Town could know `which parcels will be

developed and when."'55 In other words, in Eadie, the town was not able to anticipate all

remediation measures necessary for the proposed action, thus the court held that the plan

53Id., 253 A.D.2d at 349-50, 688 N .Y.S.2d at 853 .

54 7 N .Y .3d 306, 319, 854 N.E.2d 464, 470 (2006) (cited in Resp . Br. at 21-22) .

55 Id .

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was not ripe for development of a maintenance and monitoring plan . Similarly, in

ACORN v. Bloomberg, 56 the trial court found that it was not a SEQRA violation to

propose mitigation measures which are "still under review" where a "more precise plan

for mitigation would be impractical until construction plans are fully developed, given

the specialized nature of the over-water and land side construction ."57 Neither of these

cases involved the situation here, where the mitigation measures have been identified and

the SCA has the information necessary to prepare an SNIP, but has chosen not to do so .

Finally, Respondents' unsupported assertion that the SCA is "entitled to a

presumption that it will follow the law"58 is baseless . This concept, if followed, would

render SEQRA a nullity. The statute is based on the premise that members of the public

may question the thoroughness of the government's consideration of environmental

issues relating to projects, rather than relying on the government's assertion that it will do

the right thing .

Procedural noncompliance may only be excused in the rare circumstance

where the principles and aims of SEQRA are not violated.59 Here, however, the SCA's

deferral of consideration of maintenance and monitoring contravenes the principles and

aims of SEQRA because it necessarily precludes meaningful consideration of mitigation

in connection with other environmental concerns ; thus the error involved is far fro m

56 824 N .Y.S. 2d 752, 2006 WL 2686520, at *13 (Sup. Ct . N.Y . Cty. Sep. 19, 2006) (cited inResp . Br. at 22) .

57 ACORN, 2006 WL 2686520, at * 13 .

58 Resp. Br . at 22 .

59 Nash Metalware Co., Inc. v . Council of City of New York, 2006 WL 3849065, at *9 (Sup . Ct .

N.Y. Cty . Dec . 21, 2006) .

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harmless.60 Because Respondents have not offered (and cannot offer) a rational basis for

its withholding of a plan for long-term maintenance and monitoring, the SCA cannot

invoke the "rule of reason" to excuse its procedural non-compliance with SEQRA .

III. THE SCA MUST ISSUE A SUPPLEMENTAL ENVIRONMENTAL

IMPACT STATEMENT THAT INCLUDES A FINAL SMP SUBJECT TOPUBLIC COMMENT AND JUDICIAL REVIEW.

Petitioners share Respondents' goal of constructing much-needed school s

on the Mott Haven Site . However, were this Court merely to take Respondents at thei r

word that the SCA is "committed to developing a robust, long-term monitoring plan," in

the absence of an order requiring them to do so, Petitioners - and the other members of

the community surrounding the Mott Haven Site - would be left without a remedy at

law. 61 Respondents' request that this Court and the public "trust" the SCA not only is

legally unsupported and unprecedented, but also would serve to contradict a primary goal

of SEQRA - to inject meaningful public participation into government's decision making

60 Strauss Aff.17 . ; see also Coca-Cola Bottling Co. of New York, Inc. v. Bd. of Estimate of City

of New York, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 35 (1988) ("SEQRA's fundamental policy isto inject environmental considerations directly into gove rnmental decision making; thus thestatute mandates that "[s]ocial, economic, and environmental factors shall be considered togetherin reaching decisions on proposed activities .") (quoting Jackson, 67 N.Y.2d at 415, 503 N .Y.S.2dat 494) .

61 To the extent that Respondents argue that the time to challenge the SMP has passed, see Resp .

Br. at 1, 20-21, Respondents would have this Court read SEQRA's public participationrequirements out of the statute . See N.Y. Envtl . Conserv . Law § 8-0109(4) (purpose of EIS is tosolicit comments which will assist the agency in the decision making process in determining theenvironmental consequences of the proposed action) ; Penfield Panorama, 253 A.D.2d at 349, 688

N.Y.S .2d at 853 (deferral of resolution of remediation plan held improper because it excludedpublic comment from SEQRA process) .

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on issues of environmental remediation .62 Respondents appear to recognize this goal,

inasmuch as the SCA has committed in writing to allow additional public comment

pursuant to its issuance of a Final SMP .63 However, in order to give meaning to such

public participation, this Court must preserve Petitioners' legal cause of action . This may

be accomplished by :

(1) Requiring the SCA to issue, prior to construction, a Supplemental

Environmental Impact Statement ("SEIS") that details a plan for long-term maintenance

and monitoring of the Site . In instances where material inadequacies in an FEIS are

revealed, courts require the lead agency to issue a SEIS that addresses the "specific

adverse environmental impacts not addressed or inadequately addressed in the EIS"

subject to the full procedures of the DEC regulations . 64 The issuance of a SEIS would

fully ensure that all legal remedies are preserved for Petitioners and other members of the

Mott Haven community ; and

(2) This Court retaining jurisdiction of this Article 78 proceeding

pending issuance of a Final SMP. Inasmuch as the SCA's approval of the FEIS was

premature, for the reasons set forth in Section IIB, supra, this Court should hold that a

"final agency action" for SEQRA purposes would occur - and the four-month statute of

limitations under Article 78 would begin to run - once SCA issues its Final SMP (or

other long-term maintenance and monitoring plan), and the period for public comment

62 See, e.g ., Coca-Cola Bottling Co., 72 N.Y .2d at 679, 532 N.E.2d at 1263; Jackson, 67 N.Y.2dat 415, 503 N.Y.S.2d at 494 .

63 See Castagnola Aff.134.

64 6 N .Y.C.R.R. §§ 617 .9(a)(7)(i), (iii) (2007) .

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has closed.65 Moreover, a long-term maintenance and monitoring plan is required not

only under SEQRA but also the BCP, and this Court may scrutinize the SCA's

maintenance and monitoring plan (once it is issued) pursuant to either, or both, statutes .66

65 Stop the Barge ex rel. Gilrain v. Cahill, 1 N.Y.3d 218, 223, 771 N.Y.S .2d 40, 42 (2003)(finding that agency reached definitive position - and thus SEQRA statute of limitations periodbegan to run - when public comment period ended); Essex Cty. et al. v. Zagata, 91 N.Y.2d 447,454, 672 N .Y.S .2d 281, 285 (1998) (finding SEQRA final agency action occurred when agencysent letter setting forth definitive position on proposal and left no doubt that additional advocacybefore agency would do nothing to change agency's position or alleviate appellant's injury) .

66 See Section IIA, supra.

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CONCLUSION

For the foregoing reasons, Petitioners respectfully request that this Cour t

issue an Order and Judgment requiring the SCA to issue a supplemental EIS prior to

construction on the Site, and retain jurisdiction of this proceeding pending the SCR's

issuance of a Final Site Management Plan subject to public comment and judicial review .

Dated: New York, New YorkJuly 5, 2006

WELL, GOTSHAL & MANGES LLP

avid R. Berz, Esq .Samantha G. Fishermdn Esq .Christopher Barraza, Esq .767 Fifth AvenueNew York, New York 10153Attorneys for PetitionersBronx Committee for Toxic Free Schools et al .

NEW YORK LAWYERS FOR THE PUBLICINTEREST, INC .

avid C . Palmer, Esq .151 West 30th Street, 11th FloorNew York, NY 1000 1(212) 244-4664Attorneys for PetitionersBronx Committee for Toxic Free Schools et al .

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