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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                               - 3 -                         No. 128
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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                              - 4 -                       No. 128
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-than-
two-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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                               - 9 -                       No. 128
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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                              - 12 -                        No. 128
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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