In one of the few cases examining the intersection between the State Environmental Quality Review Act (“SEQRA”) and the State Brownfield Cleanup Program (“BCP”), the New York State Supreme Court (Westchester County), on May 26, 2017, denied a motion to preliminarily enjoin a BCP cleanup and hotel development on a former quarry site in the Village of Tuckahoe.  A final determination is pending on the SEQRA challenge to the Village Planning Board’s Site Plan Approval and the New York State Department of Environmental Conservation’s (“NYSDEC’s”) selected BCP remedy.  SPR represents the Planning Board in the litigation.

The Petitioners, a group of community members, alleged that they would suffer irreparable injury if the remediation and hotel development were allowed to proceed during the pendency of the action due to the Respondents’ asserted failure to properly conduct the BCP remedial investigation and to protect public health and the environment during remediation and construction.  In their preliminary injunction motion, the Petitioners particularly challenged the adequacy of community air monitoring protocols, which had been approved by NYSDEC and the Village’s independent consultant, and asserted the likelihood of contaminated vapors emanating from the site during construction.  The Court found that the Petitioners had not shown they would be irreparably harmed during the work as approved by NYSDEC and the Village.  The Court further held that the Petitioners were not likely to prevail on the merits, finding that the Village had rationally relied on NYSDEC’s expertise with respect to the BCP remedy and that a  disagreement among experts would not be grounds for overturning the Village’s SEQRA determination.  Finally, the Court ruled that the equities weighed in favor of continuing the cleanup work without delay to protect the public’s health.

Remediation of the landfill site and construction of the hotel are underway, with completion expected in 2018.

For additional information, contact Michael Bogin, Elizabeth Knauer, or Alexis Saba.