NY Court of Appeals Hears Challenge to State Superfund Regulations

The New York Court of Appeals heard oral argument on November 14th on whether the New York State Department of Environmental Conservation (NYSDEC)  exceeded its authority when its set a goal of cleaning hazardous sites to “pre-disposal conditions” in its superfund regulations.

After the NYSDEC revised its Part 375 regulations in 2006, the New York State Superfund Coalition filed lawsuit in March 2007 claiming NYSDEC exceeded its authority under Environmental Conservation Law § 27-1313(5)(d), which states, “The goal of any [Superfund] remedial program shall be a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal.”

Specifically, the plaintiffs challenged  6 NYCRR 375-2.8(a) which states that “The goal of the program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible. At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by hazardous waste….”

The state Supreme Court (trial court) ruled that ECL 27-1313(5)(d) authorized ” a complete cleanup”  that eliminates a “significant threat’. Therefore, court said NYSDEC exceeded its authority when it required removal of all hazardous wastes to “pre-disposal conditions”. However, the Appellate Division  reversed. The court said that because the ECL refers both to a “complete cleanup”  and “to the elimination of the significant threat to the environment”, the ECL was ambiguous. The court then held that DEC’s interpretation of the remedial goal set forth in ECL 27-1313(5)(d) as expressed in regulations was reasonable.

No. 189- Matter of New York State Superfund Coalition, Inc. v New York State Department of Environmental Conservation
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