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THE FACT THAT THE CONTAMINATED AREA WHERE THE NEW CONSTRUCTION WAS TO BE LOCATED HAD BEEN REMEDIATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) WAS NOT ENOUGH TO ENSURE SAFETY WHEN THE SOIL IS DISTURBED FOR CONSTRUCTION; THE SEQRA REVIEW DID NOT TAKE THE REQUISITE HARD LOOK AT THE EFFECTS OF DISTURBING THE SOIL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the Plattsburgh Common Council, the lead agency responsible for review of a construction project pursuant to the State Environmental Quality Review Act (SEQRA), did not take the requisite hard look at the potential danger associated with disturbing the contaminated soil which had been cleaned up and declared remediated by the Department of Environmental Conservation (DEC):

… Supreme Court correctly determined that, although the soil contamination was addressed, the ZBA (Zoning Board of Appeals) and Planning Board failed to take a hard look at this issue … . More specifically, the failure in providing mitigation measures for this environmental concern did not comply with the mandates of SEQRA … . Preliminarily, the Common Council, and thereafter the Planning Board and ZBA, properly relied on DEC correspondence in determining that the project site in its current form did not present adverse environmental impacts … . Here, however, it was inappropriate to determine that there would be no adverse environmental impacts when it was known that the contemplated site plan would necessarily disturb the contaminated soil … . * * * The fact that the brownfield remediation was successful at the time does not discharge the involved agency’s duty to take a hard look relative to the project … . Indeed, the citizens who may be impacted have the right to insist that the construction be done in an environmentally safe manner in accordance with SEQRA.  Matter of Boise v City of Plattsburgh, 2023 NY Slip Op 04338, Third Dept 8-17-23

Practice Point: Here the construction area had been contaminated and was successfully remediated by the DEC. But the SEQRA review required a hard look at the effects of disturbing the soil n the remediated area during construction. The review could not simply rely on the remediation-conclusions of the DEC.

 

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