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Superfund Coalition v. NYSDEC Opinion

Superfund Coalition v. NYSDEC Opinion

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Opinion by New York Court of Appeals finding the state has authority to require cleanup of environmental contamination to pre-disposal conditions.
Opinion by New York Court of Appeals finding the state has authority to require cleanup of environmental contamination to pre-disposal conditions.

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Published by: Law Office of Michael D. Smith, P.C. on Dec 21, 2011
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12/21/2011

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=================================================================This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 189In the Matter of New York StateSuperfund Coalition, Inc.,Appellant,v.New York State Department ofEnvironmental Conservation,et al.,Respondents.Thomas F. Walsh, for appellant.Andrew B. Ayers, for respondents.JONES, J.:Petitioner New York State Superfund Coalition, Inc.(Superfund Coalition) commenced this combined CPLR article 78proceeding and declaratory judgment action to challenge certainregulations promulgated by the New York State Department ofEnvironmental Conservation (DEC or the Department) with respect- 1 -
 
- 2 -No. 189to remedial programs implemented to clean "inactive hazardouswaste disposal sites."
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The Superfund Coalition asserts that theregulations are
ultra
 
vires
and impermissibly allow DEC to orderexpansive remedial programs that contravene the limitedlegislative goal of article 27, title 13 of the EnvironmentalConservation Law to identify and remove only "significantthreats." We hold that DEC did not exceed its authority or actcontrary to law in enacting the subject regulations.
I
In 1979, the Legislature enacted article 27, title 13of the Environmental Conservation Law to address the public issueof inactive hazardous waste disposal sites. At the time of theenactment, DEC had identified approximately 530 sites throughoutthe state that posed a threat to public health and theenvironment given their "proximity to densely populated areas or. . . water courses or aquifers" (Budget Report on Bills, BillJacket, L 1979, c 282). At the time, inactive hazardous wastedisposal sites were largely unregulated, as opposed to active
1
"Inactive hazardous waste disposal site means any area orstructure used for the long term storage or final placement ofhazardous waste including, but not limited to, dumps, landfills,lagoons and artificial treatment ponds, as to which area orstructure no permit of authorization issued by the department ora federal agency for the disposal of hazardous waste was ineffect after the effective date of this title and any inactivearea or structure on the National Priorities List establishedunder the authority of 42 U.S.C.A. Section 9605" (ECL § 27-1301[2]).- 2 -
 
- 3 -No. 189waste disposal sites which were monitored under state and federalsystems of regulation (see id.). As inactive sites wereessentially unmonitored, there was no standard practice ofensuring adequate disposal or containment of hazards to minimizeenvironmental impacts (see id.). The 1979 enactment was proposedto place the burden of remedying these sites on those responsiblefor the presence of waste material, or in the alternative, taskDEC with implementing a remedial program in the event theresponsible party was unknown, unable or unwilling to amelioratethe situation.The Superfund Coalition is a not-for-profit corporationwhose members consist of commercial entities that own land withinthe State of New York listed on a registry of sites subject toDepartment regulation. Previously, in Matter of New York StateSuperfund Coalition v New York State Dept. of Envtl. Conservation(75 NY2d 88 [1989]), the Superfund Coalition asked this Court toaddress DEC regulations regarding the identification of "inactivehazardous waste disposal sites" requiring remedial action (seeECL § 27-1303; 27-1313 [3]). In that case, this Court annulledthe regulation, concluding that DEC had acted beyond itsauthority by enacting overreaching regulations that conflictedwith the statutory scheme of the Legislature. While theLegislature had envisioned the utilization of a "significantthreat" standard in the identification of inactive hazardouswaste disposal sites -- which contemplated the existence of an- 3 -

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