NY High Court Upholds State Superfund Regs

The New York State Court of Appeals (New York’s highest court) rejected a challenge that the New York State Department of Environmental Conservation (NYSDEC) exceeded its authority when it promulgated regulations requiring state superfund sites to be remediated to “pre-disposal” conditions when feasible. In the Matter of New York State Superfund Coalition v New York State Dept. of Environmental Conservation, 2011 N.Y. LEXIS 3624 (N.Y. 12/15/11).

This was not the first time that the petitioner, a non-profit organization whose members consist of commercial entities that own sites on the state superfund list, has sued the NYSDEC. Back in 1989, the Superfund Coalition had challenged an earlier version of the state superfund regulations that had would have allowed the NYSDEC to place sites on the state superfund list (formally known as the “Registry of Inactive Hazardous Waste Sites” or simply the “Registry”) based on potential presence of hazardous waste. In that proceeding, the Court of Appeals invalidated the NYSDEC regulations. The Court said that the state superfund law (located at ECL § 27-1301 et seq.) limited Registry sites to those posing a “significant threat” while the challenged regulation authorized NYSDEC to require cleanups at all inactive hazardous waste disposal sites, even those that did not pose a significant threat.

The NYSDEC subsequently promulgated new superfund regulations in 1992 that clarified that the mere presence of hazardous waste did not constitute a significant threat. These regulations also stated that the goal of a remedial program was to restore a site to predisposal conditions “to the extent feasible and authorized by law”. When NYSDEC revised its regulations in 2007, it simply eliminated the phrase “and authorized by law” as surplusage. It was this deletion that was at issue in the current case.

The petitioners challenged 6 NYCRR 375-2.8(a)[i] and 6 NYCRR 375-1.8(f)(9)(i)[ii] which call for the restoration of inactive hazardous waste disposal sites to “pre-disposal conditions, to the extent feasible”. The petitioners asserted that this requirement went beyond NYSDEC’s authority under § 27-1313 (5)(d) which provides, in part, that the goal of a remedial program is “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.”  The Superfund Coalition argued that since the phrase “complete cleanup” was modified by  “the elimination of the significant threat to the environment”, NYSDEC could only require a cleanup that eliminated the significant threat and not a cleanup of the contamination that might remain after the immediate risk was abated.

The trial court agreed with the petitioners, holding that the revised regulation was “an unlawful continuation by the DEC to equate hazardous waste with significant threat, in that a return to pre-disposal conditions necessitates removal of all hazardous wastes, whereas the statute requires only the elimination of the significant threat and of the imminent danger of irreversible or irreparable damage to the environment.”

The Appellate Division reversed. The court found the language of section 27-1313 (5) was ambiguous and concluded that NYSDEC’s had reasonably interpreted the ECL and reversed the lower court’s holding that annulled the regulations at issue. The court said “the regulatory goal is consistent with the statutory definition of inactive hazardous waste disposal site remedial program which is broad enough to allow the employment of a wide range of methods and may address even potential hazards once DEC has made the threshold determination that remediation is necessary

The Court of Appeals began its analysis by noting the definition of a remedial program encompassed a full range of activities from controlling or abating eliminating risks posed by hazardous wastes to the complete elimination of the waste. The Court also said that § 27-1313 (5) (d) only applied to remedies implemented by NYSDEC because a responsible party has either refused or is unable to implement a remedy. The Court went on to say that the factors listed in that statutory section provide guidance to the agency in determining whether to perform a complete or limited cleanup. The Court characterized the stated goal of a “complete cleanup” was aspirational since the statute recognizes that DEC may implement limited actions that reduce rather than completely eliminate dangers.

The Court also rejected the notion that the regulations provided NYSDEC with unfettered authority since a remedial program is limited “to the extent feasible” and the regulation provides a number of factors that must be considered in shaping the goals and scope of a remedy for a particular site. In addition, the Court emphasized that the ECL provided landowners with ample due process to challenge remedial orders. For example, the Court pointed out that NYSDEC regulation provide “notice and the opportunity for a hearing” to persons subject to such an order. In addition, the Court said any person subject to such an order is entitled to present a defense or comment on the matter. Moreover, the Court said a challenged order will not become effective until it is upheld by an administrative law judge and the NYSDEC commissioner affirms the decision. (The ECL does not provide the NYSDEC with the authority to issue unilateral administrative orders like EPA does under CERCLA section 106 or RCRA section 7003). Finally, the Court said a person subject to an order may challenge it through an article 78 proceeding within 30 days after the service of an order. As a result, the Court held that the challenged DEC regulations mirror this statutory scheme, are reasonable interpretations that incorporate the essential goals of the ECL and do not exceed the enabling authority of the legislation with respect to the cleanup of inactive hazardous waste sites.

[i] 6 NYCRR 375-2.8 (a) provides that: “The goal of the remedial 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 contaminants disposed at the site.”

[ii] 6 NYCRR 375-1.8(f)(9)(i) incorporates the remedial goal stated in 6 NYCRR 375-2.8 (a) into the consideration of land use when implementing a remedial program. It provides that: “In assessing reasonable certainty [of land use], the Department shall consider: “(i) the current, intended, and reasonably anticipated future land uses of the site and its surroundings in the selection of the remedy for soil remediation under the Brownfield cleanup and environmental restoration programs, and may consider land use in the State superfund program, where cleanup to pre-disposal conditions is determined not feasible.”

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