On October 23, 2012, the New York Court of Appeals handed down its decision in Bronx Committee for Toxic Free Schools v. New York City School Construction Authority. In it, the Court held that the public notice procedures that the School Construction Authority followed under the New York State Brownfield Cleanup Act (BCA) did not satisfy the related, but distinct public notice and comment obligations under the State Environmental Quality Review Act (SEQRA).

The issue arose in Bronx Committee because at the time of SEQRA review, remediation had not yet taken place. Accordingly the Authority did not include in its Environmental Impact Statement (EIS) a plan for long-term maintenance and monitoring, believing that any discussion of such procedures would be premature prior to completion of cleanup. When remediation was finished, the Authority took the position that a Supplemental Environmental Impact Statement (SEIS) was unnecessary in light of the extensive public notice requirements that it had followed pursuant to the BCA.

The Court disagreed with the Authority. Because “the long term maintenance and monitoring of … engineering controls were too important not to be described in an EIS,” the Court held that the plain language of SEQRA required their inclusion, either in the EIS or by the filing of an SEIS.

The Court went out of its way to emphasize that it was not ruling on how much detail needs to be included in the SEQRA documents. It also noted that since the Authority did not dispute that long-term monitoring was essential for the protection of public health and the environment, it was not second-guessing the Authority’s judgment on what is “significant” for SEQRA purposes. It thus appears that the decision leaves a great deal of discretion to lead agencies with respect to these issues.

Judge Read’s concurring opinion noted the confusing language of implementing regulations under both SEQRA and the BCA, which provide that in certain circumstances, activities undertaken under the BCA are exempt from SEQRA compliance. Read noted that the Authority never argued that this exemption applied, so that the issue was not directly before the Court. She encouraged the Department of Environmental Conservation to clarify the interplay between these statutes in its upcoming revision of the SEQRA regulations.

The net result of the decision is this: where long-term monitoring (or, presumably, other remedial measures) will be required at a site enrolled in the Brownfield Cleanup Program but the specifics have not been determined at the time of an EIS, simply following the public notice and comment provisions of the BCA will not suffice. Either the EIS must contain a general description of the types of measures that will be implemented, or an SEIS must be filed after those methods have been determined.

David J. Freeman is a Director in the Gibbons Real Property & Environmental Department.