This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 128 

In the Matter of The Friends of 

P.S. 163, Inc., et al., 

 Appellants,

 v.

Jewish Home Lifecare, Manhattan,

 Respondent,

New York State Department of 

Health, et al.,

 Respondents.

---------------------------------

In the Matter of Daisy Wright, 

et al.,

 Appellants,

 v.

New York State Department of 

Health, et al.,

 Respondents,

Jewish Home Lifecare, Manhattan,

 Respondent.

Matthew R. Shahabian, for appellants Friends of P.S.

163, Inc., et al.

John R. Low-Beer, for appellants Wright, et al.

Ester Murdukhayeva, for respondents New York State

Department of Health, et al.

Henry M. Greenberg, for respondent Jewish Home

Lifecare, Manhattan.

The Real Estate Board of New York, Inc.; CaringKind, et

al.; Services & Advocacy for Gay, Lesbian, Bisexual & Transgender

Elders et al.; City of New York; Gale Brewer, et al.; Cardozo Bet

Tzedek Legal Services et al.; American Academy of Pediatrics, New

York Chapters 2 & 3, et al., amici curiae.
RIVERA, J.:

Petitioners in these two article 78 proceedings

challenge a New York State Environmental Quality Review Act

(SEQRA) assessment by the New York State Department of Health

(DOH) of Jewish Home Lifecare's (JHL) application to construct a

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new residential facility in New York City. Petitioners are,

respectively, parents of students attending a public elementary

school next door to the proposed construction site and tenants

living in apartment buildings surrounding the site.

We reject petitioners' arguments and hold that DOH

complied with its SEQRA responsibilities. It identified and

assessed relevant environmental hazards, and, as the agency

deemed necessary, imposed mitigation measures to protect public

health and safety. Therefore, we affirm the order of the

Appellate Division.

I. STATUTORY AND REGULATORY SEQRA PROCESS

In New York State, "SEQRA makes environmental

protection a concern of every agency" (Matter of Jackson v New

York State Urban Dev. Corp., 67 NY2d 400, 414 [1986], citing

Environmental Conservation Law § 8-0103 [8] and 6 NYCRR § 617.1

[b]). Any construction project that requires state agency

approval, such as the construction of a nursing home (see Public

Health Law § 2802), "which may have a significant effect on the

environment," must go through a full SEQRA assessment to make

sure that it is undertaken in a way that minimizes damage to the

environment and public health (see Environmental Conservation Law

§ 8-0109 [1]). To that end, the agency must prepare an

Environmental Impact Statement (EIS) that complies with both the

substantive and procedural requirements of SEQRA and all other

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applicable regulations (see Environmental Conservation Law § 8-

0109 [2], 6 NYCRR §§ 617-618). This "insures that agency

decision-makers -- enlightened by public comment where

appropriate -- will identify and focus attention on any

environmental impact of proposed action, that they will balance

those consequences against other relevant social and economic

considerations, minimize adverse environmental effects to the

maximum extent practicable, and then articulate the bases for

their choices" (Matter of Jackson, 67 NY2d at 414-415).

After the agency initially determines that it must

prepare an EIS, SEQRA review proceeds through several steps.

First, the project sponsor or the lead state agency on the

project may conduct an optional "scoping session," exploring the

method to be used in assessing the project's environmental impact

(see 6 NYCRR § 617.8).1 Next, the lead agency must prepare or

cause to be prepared a Draft Environmental Impact Statement

(DEIS), to be filed with the Department of Environmental

Conservation, which surveys the relevant environmental risks

posed by the proposed project (Environmental Conservation Law §

8-0109; 6 NYCRR § 617.12 [b] [6]). After the DEIS has been

finished and publicly reviewed, the agency prepares and files a

Final Environmental Impact Statement (FEIS) (Environmental

1 The "lead agency" is the agency "having principal

responsibility for carrying out or approving [the] action

[under review]" (Environmental Conservation Law § 8-0111

[6]). 

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Conservation Law § 8-0109 [6]). The DEIS and FEIS must analyze

"the environmental impact and any unavoidable adverse

environmental effects" of the project under review, as well as

"alternatives to the proposed action . . . including a 'no-action

alternative,' . . . and mitigation measures" (Matter of Jackson,

67 NY2d at 416 [internal citations omitted]). Finally, before

approving the project, the agency must "make an explicit finding

that the requirements of [SEQRA] have been met and that[,]

consistent with social, economic[,] and other essential

considerations, to the maximum extent practicable, adverse

environmental effects revealed in the environmental impact

statement process will be minimized or avoided" (Environmental

Conservation Law § 8-0109 [8]). By administrative regulation,

such finding must be contained in a written Findings Statement,

which considers the conclusions reached in the FEIS, weighs and

balances the relevant environmental impacts, and "provide[s] a

rationale for the agency's decision" (6 NYCRR §§ 617.11 [c],

[d]).

Opportunity for public participation and engagement is

an essential and mandatory part of the SEQRA process. At each

step, the agency must provide for public comment, usually through

a written public comment period (see 6 NYCRR §§ 617.8 [e], 617.9

[a] [2]-[5], 617.11 [a], [b]; see generally Matter of Jackson, 67

NY2d at 415-416 [summarizing SEQRA process, including public

comment requirements]). The agency is further authorized to hold

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optional public hearings at its discretion (see Environmental

Conservation Law § 8-0109 [5]; 6 NYCRR §§ 617.8 [e], 617.9 [a]

[4]).

II. DEPARTMENT OF HEALTH'S SEQRA REVIEW 

OF JHL's CONSTRUCTION PROJECT

In the appeal before us, JHL applied to DOH for

permission to construct a new 414-bed residence for the elderly

and disabled on a vacant lot on West 97th Street in New York

City, to replace JHL's existing, outdated facility several blocks

away. JHL submitted an Environmental Assessment Statement to

DOH, triggering the SEQRA review process. DOH assumed the SEQRA

lead agency role, and subsequently issued a notice of intent to

prepare a DEIS. As provided in DOH's final scoping document, the

DEIS analyzed, among other environmental matters, the potential

impact on public health of exposure to hazardous materials,

including soil-based lead and airborne lead dust, as well as the

effects of construction noise. To address these and other

concerns, the agency developed a Remedial Action Plan (RAP) and

Construction Health and Safety Plan (CHASP), which outlined

measures to protect workers and the surrounding community during

the construction.

With respect to hazardous materials, the DEIS

incorporated the results of two separate environmental site

assessments, conducted by different experts. The first, a Phase

I assessment, found "no evidence of recognized environmental

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conditions" and recommended no further action. Nevertheless, the

agency proceeded to a Phase II assessment, which collected and

analyzed subsurface soil and groundwater samples from the

footprint and immediate vicinity of the proposed facility. This

report concluded that lead levels at the site were no higher than

those typically found in urban fill, and were below the

Department of Environmental Conservation's Restricted Residential

Use Soil Cleanup Objectives, which provides a remediation

standard for contaminated land (Environmental Conservation Law §

27-1415; 6 NYCRR § 375-6).

Based on these reports, DOH concluded that any risks

posed by lead could be appropriately mitigated. The DEIS noted

that, although lead presented a health hazard, especially to

children, there would be no long-term public exposure to lead in

the soil, because the excavated leaded dirt would be removed or

covered by the new facility, and thus did not constitute a

soil-lead hazard as defined by the United States Environmental

Protection Agency (EPA).

DOH further considered the risk of airborne lead dust

migrating from the construction site. Since New York State does

not have an airborne lead risk standard, DOH relied on the

National Ambient Air Quality Standard (NAAQS), a federal standard

established by the EPA pursuant to the Clean Air Act (42 USC §§

7408-7409; 40 CFR Part 50). The NAAQS sets forth an acceptable

lead dust level for "sensitive populations" including children

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and the elderly. To ensure airborne lead dust remains within the

NAAQS limits, DOH imposed monitoring and containment measures,

including sprinkling/wetting soil with water, requiring tarp

covers on haul-trucks, inspecting vehicles before site exit, and

cleaning trucks as necessary to prevent dust dispersion. DOH

also required proper disposal of soil in accordance with

hazardous waste removal standards, real-time monitoring of dust

levels, and the installation of a vapor barrier surrounding the

cellar and sidewalls, along with contingency plans in case of

additional contamination, including work-cessation if measured

airborne particulate matter passed a certain threshold. DOH

concluded in the DEIS that the construction would not cause

significant environmental or public health risks from lead dust

because these mitigation measures would keep airborne dust below

the NAAQS limits, ensuring that acceptable levels would be

"rarely (if ever)" exceeded.

DOH similarly assessed construction noise, and

initially concluded that it would not significantly impact P.S.

163 students, relying, in part, on criteria set forth in the New

York City Environmental Quality Review Technical Manual (City

Manual) -- the technical manual developed by the City for use by

its agencies. Nevertheless, DOH conducted an analysis of the

potential noise impact on P.S. 163 because the school was a

"highly sensitive location."

For its noise study, DOH adopted the Computer Aided

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Noise Abatement model, and employed assumptions that exceeded the

worst-case scenario baselines referenced in the City Manual. 

Based on this study, DOH concluded that interior noise levels in

the classrooms facing the site would, during the noisiest stages

of construction, occasionally exceed the City Manual's target of

45 dBA. Actual noise would be lower, though, based on mitigation

measures to be employed by JHL, including moving noisy equipment

away from P.S. 163, installing a ten-foot-high sound barrier, and

using less noisy electrical equipment. DOH concluded that these

measures were sufficient because the external absolute noise

levels would be equivalent to those on a heavily trafficked city

street, and the excess noise would be sporadic over a less-thantwo-year period.

After holding two public hearings following the

publication of the DEIS, DOH issued the FEIS, reflecting

consideration of points raised during the public hearing process,

and responding in detail to public comments. As relevant here,

DOH maintained that it had properly considered the risk of

children's exposure to lead dust during construction and that the

mitigation measures it required were sufficient.2 DOH rejected

requests that the construction site be enclosed in a tent during

2 DOH further noted that the Department of

Environmental Conservation had also determined, based on the

AKRF soil-sample analysis, that the site did not pose a

significant threat to public health and that there was no

reason to require lead contamination remediation.

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excavation to contain airborne particles, concluding that it was

unnecessary, as compliance with the RAP and CHASP would

adequately control dust levels, which would be continuously

monitored using standard technology to ensure that they remained

within acceptable levels.

As for construction noise, DOH decided, in response to

public comments, to impose additional mitigation measures to

further abate the impact on P.S. 163 students. These included

requiring JHL to install interior acoustic windows in classrooms

facing the site, to provide window air conditioners for

classrooms lacking them so that windows could be closed

throughout the construction, and to use a 16-foot rather than

10-foot sound barrier. DOH also prohibited noisy work during

annual school testing periods and required JHL to assign a

construction manager to respond to noise issues. DOH concluded

that these measures would keep the noise in classrooms below 45

dBA most of the time. Although interior noise might occasionally

reach the low-50s dBA, when construction was at its most intense,

DOH concluded that this level would not have adverse health

effects on children, as it is roughly equivalent to the

background noise in an office.

In light of the reduction in noise to acceptable levels

from these mitigation measures, DOH rejected as unnecessary a

request from petitioners that JHL install central air

conditioning as an alternative noise reduction tactic. After DOH

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filed the FEIS, DOH received additional comments from the P.S.

163 Parent Teacher Association, again requesting the installation

of central air. In response, JHL alleged that installing central

air conditioning at $8-10 million was cost prohibitive and would

delay construction. In support of its claims, JHL relied on an

email from the City School Construction Authority. The State

Dormitory Authority subsequently advised DOH that it was not

feasible to install central air conditioning, noting potential

added costs and delays if it became necessary for JHL to

undertake asbestos abatement as part of the installation.

DOH eventually issued a Findings Statement that

incorporated these arguments, reviewed the FEIS, and discussed

the relevant environmental impacts identified and assessed during

the SEQRA process. The Findings Statement also explicitly

provided that, "consistent with social, economic and other

essential factors, and considering the available reasonable

alternatives," the project "avoids or minimize[s] adverse

environmental effects to the maximum extent practicable . . . by

incorporating, as conditions to [DOH's] decision, those

mitigation measures [which were] identified as practicable," and

provided a rationale for that determination.

III. PROCEEDINGS BELOW

Petitioners filed their respective article 78 petitions 

seeking to annul, vacate and set aside DOH's determination as

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arbitrary, capricious, and erroneous. Petitioners alleged that

DOH relied on flawed assessment methodologies and failed to

adequately mitigate the environmental dangers associated with the

construction. Supreme Court partly agreed, vacated and annulled

DOH's approval of JHL's application, and remitted the matter to

DOH to prepare an amended FEIS. The court held that although DOH

followed proper SEQRA procedures, it failed to adequately

consider all relevant mitigation measures -- in particular the

use of a tent and the installation of central air conditioning.

The Appellate Division reversed, with one Justice

dissenting, reinstated the Findings Statement, and dismissed the

petitions (146 AD3d 576 [2017]). The court rejected petitioners'

SEQRA claims as well as their challenge to JHL's standing to

appeal Supreme Court's order. The court concluded that Supreme

Court had improperly "substituted its analysis for the expertise

of the lead agency simply because the agency rejected what the

court considered to be better measures" (id. at 581 [internal

quotation marks omitted]). The Appellate Division subsequently

granted petitioners leave to appeal.

IV. PETITIONERS' LEAD, NOISE, AND PROCEDURAL CLAIMS

Judicial review of SEQRA findings "is limited to

whether the determination was made in accordance with lawful

procedure and whether, substantively, the determination 'was

affected by an error of law or was arbitrary and capricious or an

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abuse of discretion'" (Akpan v Koch, 75 NY2d 561, 570 [1990],

quoting CPLR 7803 [3]). This review is deferential for "it is

not the role of the courts to weigh the desirability of any

action or choose among alternatives, but to assure that the

agency itself has satisfied SEQRA, procedurally and

substantively" (Matter of Jackson, 67 NY2d at 416). Courts

review an agency's substantive obligations "in light of a rule of

reason" (id. at 417). Importantly: 

"Not every conceivable environmental impact,

mitigating measure or alternative must be

identified and addressed before a FEIS will

satisfy the substantive requirements of

SEQRA. The degree of detail with which each

factor must be discussed obviously will vary

with the circumstances and nature of the

proposal. . . . [T]he Legislature in SEQRA

has left the agencies with considerable

latitude in evaluating environmental effects

and choosing among alternatives. Nothing in

the law requires an agency to reach a

particular result on any issue, or permits

the courts to second-guess the agency's

choice." 

(id. at 417 [internal citations omitted]). In short, we "'review

the record to determine whether the agency identified the

relevant areas of environmental concern, took a 'hard look' at

them, and made a 'reasoned elaboration' of the basis for its

determination" (Akpan, 75 NY2d at 570 [internal citations

omitted]).

On appeal to this Court, petitioners raise several

substantive and procedural issues. They challenge DOH's lead

hazard findings, reasserting their arguments below that DOH

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adopted a flawed methodology to measure the prevalence of lead at

the construction site, failed to fully assess or mitigate the

impact of airborne lead dust, and never looked specifically at

the danger lead dust posed to children, the elderly, or the

infirm. The parent petitioners additionally challenge DOH's

construction noise findings, asserting that DOH's noise

mitigation measures do not adequately protect P.S. 163 students. 

These petitioners also assert procedural challenges, namely that

JHL lacked standing to appeal and that the Appellate Division

erroneously granted DOH's motion to file an amicus brief while

rejecting the petitioners' motion to file a brief in response.

We disagree with petitioners' lead claims, and, based

on the record here, we conclude that DOH took the requisite hard

look at the potential risk posed by soil-based lead contamination

and potential lead dust migration. Petitioners' claims that

DOH's soil-sample evidence was insufficient and resulted in

unsupported conclusions about the risk posed by lead at the

construction site are without merit. DOH relied on 38 soil

samples, taken and analyzed according to a technically sound

methodology by expert consultants. DOH weighed and resolved the

disagreement voiced by the petitioners' experts regarding the

consultants' methods and opinions. DOH's conclusions are based

on federal and state standards, including accepted EPA standards,

on which the agency was legally allowed to rely. Petitioners may

have preferred DOH to adopt a different standard, but we cannot

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say DOH's determination "was affected by an error of law or was

arbitrary and capricious or an abuse of discretion" (Akpan, 75

NY2d at 570 [1990] [internal quotation marks omitted]).

Petitioners' challenge to DOH's assessment of lead dust

is similarly unavailing. As the record establishes, DOH relied

on detailed investigations by experts, and employed appropriate

government standards in assessing the risk of airborne lead. The

DEIS, FEIS, and Findings Statement all explicitly acknowledged

and evaluated the risk that construction would disturb leaded

soil, creating airborne lead dust. In assessing how acute a

danger the lead dust posed, DOH directly relied on the federal

NAAQS for lead exposure, which was a rational choice,

particularly as this standard was specifically formulated to

protect sensitive populations, like schoolchildren. 

Preventing the migration and inhalation of lead dust

was one of the environmental risks the agency specifically set

out to measure and mitigate in the RAP and CHASP that it adopted. 

In recognition of the risk, DOH imposed a battery of construction

protocols to monitor and contain airborne dust. DOH reasonably

concluded that these mitigation measures were sufficient to

ensure that airborne lead levels remained within acceptable NAAQS

limits, and explained its assessment fully in the DEIS and FEIS.

Petitioners allege that these measures are

insufficient, but their argument is unpersuasive. They complain

that DOH relied on outdated standards, did not conduct a proper

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"pathway assessment" to determine how lead dust might affect

sensitive populations (including, in particular, the children at

P.S. 163), and, in any case, did not do enough to minimize lead

exposure. In fact, as the record clearly shows, DOH relied on

appropriate standards and considered precisely the harm

petitioners identify. Petitioners allege that DOH should have

more fully considered the use of a sealed tent during

construction as a possible mitigation measure.3 However, DOH

acted squarely within its statutory authority to choose among

alternatives when it rejected the tent and adopted the measures

it chose instead (see Matter of Jackson, 67 NY2d at 417).

Nor do the worker protection measures that DOH required

for construction crews suggest that the dust mitigation measures

it adopted were unreasonable, as petitioners argue. The former

are designed to protect workers during periods of direct exposure

through potential physical contact with hazardous materials at

the construction site, while the latter are aimed at protecting

students and residents in the surrounding area from airborne

particulate matter. DOH reasonably concluded that the different

situation of these two groups warranted different mitigation

measures.

We find petitioners' noise claims similarly

3 As DOH notes, the use of a sealed tent is unusual,

generally limited to long-term remediation projects, and,

for this reason, its use is not contemplated by the City

Manual.

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unpersuasive. DOH conducted a detailed analysis of construction

noise, employing assumptions based on reasonable worst case

scenarios. In assessing both the dangers of construction noise

and the most appropriate mitigation measures, DOH acted within

its "considerable latitude in evaluating environmental effects

and choosing among alternatives" (id.). The fact that

petitioners would have preferred different or additional

mitigation measures presents a difference of opinion about the

best way to address the environmental impacts that the agency,

not the courts, must consider and resolve. In fact, the agency

considered the opinions of petitioners' experts and determined

that the lower noise levels for which they advocated were "not

often achieved in densely-populated urban locations such as NYC." 

DOH also considered that its levels did not exceed the City

Manual's recommendation. We conclude, based on all this

information, that DOH did not act unreasonably in deciding that

the noise levels it sought to maintain were within a permissible

range.

Petitioner's procedural challenges are either without

merit or unreviewable (see CPLR 5501, 5511).

In sum, DOH took the requisite "'hard look' at

[relevant areas of environmental concern] and made a 'reasoned

elaboration' of the basis for its determination" (Akpan, 75 NY2d

at 570 [internal citations omitted]). Accordingly, the order of

the Appellate Division should be affirmed, with costs, and the

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certified question not answered as unnecessary.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs, and certified question not answered

as unnecessary. Opinion by Judge Rivera. Chief Judge DiFiore

and Judges Stein, Fahey, Garcia, Wilson and Feinman concur.

Decided December 12, 2017

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