New York's Highest Court Upholds New York Hazardous Waste Regulations

On December 15, 2011 the New York State Court of Appeals rejected an industry group's challenge to the current New York State Department of Environmental Conservation (NYSDEC) hazardous waste cleanup regulations (6NYCRR Part 375), holding that NYDEC acted within its authority to require cleanups to so-called "pre-disposal" conditions.   

 

In sharp contrast to an earlier Court of Appeals decision, which threw out the then Part 375 regulations on the ground that NYSDEC's definition of "significant threat to the environment" was so broad as to include the mere presence of hazardous wastes, the recent decision recognizes that NYSDEC has broad authority to impose stringent cleanup standards beyond eliminating "significant threats" to the environment, notwithstanding the use of that qualifying term in the statute.

In New York Superfund Coalition, Inc. v. New York State Department of Environmental Conservation, 18 N.Y.3d 289 (Dec. 15, 2011), the Court of Appeals rejected a challenge by the Superfund Coalition, an industry group, which argued that the Part 375 regulations that implement the State Superfund Law set a cleanup goal of restoration of the site to "pre-disposal conditions to the extent feasible" was a "seachange" in remedy selection to the extent that such a goal would require removal of every last molecule of contamination to "pre-Columbian environmental quality."  The Superfund Coalition argued that the cleanup goal of "pre-disposal" conditions exceeded NYSDEC's statutory authority, which they asserted was limited to cleanups that removed "a significant threat to the environment posed by the disposal of hazardous wastes at the site." In a 5-2 decision, the Court held that the new regulations did not significantly change the remedy selection goals from earlier versions of the Part 375 regulations and that both the statute and regulations stated the same preference for thorough cleanups, while permitting lesser cleanups when cleanup to "pre-disposal" conditions was not feasible.

 

The reasoning for the Court majority's decision is not entirely clear. The majority stated that the statute "evinces a preference for the most thorough cleanup that makes sense in light of technical feasibility and cost-effectiveness," yet never cites to any statutory provision that indicates such a preference. Rather the statute provides that the goal of the State's Cleanup 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 waste at the site and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal." The Court majority also pointed out, again without any citation to the statute, that while a "significant threat" determination by NYSDEC may trigger a cleanup requirement, that standard does not limit the scope of the remediation when a more thorough cleanup is justified to effectuate a "complete cleanup". The majority concluded that the NYSDEC Part 375 regulatory goal of "predisposal conditions to the extent feasible" was consistent with the statute's goal of requiring a "complete cleanup", but in doing so it essentially ignores the statutory language expressly qualifying the cleanup obligation to the elimination of a "significant threat" or "irreversible or irreparable" harm.

 

While the majority's logic and statutory interpretation may be dubious, the practical impact of the Court of Appeals decision may not be as significant as its reasoning might indicate. In practice, NYSDEC has not – even under the current regulations – normally required a cleanup to "predisposal conditions" unless the remediation consists of a limited excavation that would eliminate all site contamination. It is quite common for NYSDEC to require limited cleanups that contain and manage soil and groundwater contamination and impose engineering and site access controls and/or deed restrictions on partially-remediated sites, and there is little reason to believe NYSDEC intends to abandon this long-standing practice in favor of routinely requiring all cleanups achieve the impractical goal of pre-disposal conditions.