In its 1989 Superfund case (Digest 368), the Court of Appeals held that the Department of Environmental Conservation can regulate a hazardous waste site only when it poses a “significant” environmental threat; that a mere “potential” threat won’t do.

In another such cleanup decision, the Court divides on whether certain DEC regulations meet those 1989 criterion.

In New York State Superfund Coalition, Inc. v. New York State Dep’t of Environmental Conservation, 18 N.Y.3d 289, 938 N.Y.S.2d 266 (Dec. 15, 2011; 5-2 decision), the majority, in an opinion by Judge Jones, says they do; the dissent, in an opinion by Judge Pigott, says they don’t and would set aside the contested regulations. The petitioner, the same in both the 1989 and the present decisions, is described as “a not-for-profit corporation whose members consist of commercial entities that own land … on a registry of sites subject to … regulation”.

The petitioner brought what the Court describes as a “combined CPLR article 78 proceeding and declaratory judgment action” challenging as ultra vires the remedial programs addressed in the new regulations. The challenge does not succeed.

Section 27-1313(5)(d) of the Environmental Conservation Law allows the DEC through regulations to devise and implement “an inactive hazardous waste disposal site remedial program” with, as the dissent stresses, the goal of making the program, with respect to each site addressed by the DEC

a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal.

The aim, according to the dissent, was the complete “elimination” of a current “significant threat”. The DEC, however, in its view of what contaminants at a site constitute a “significant threat”, includes not just those that are a present threat but also those that are “reasonably foreseeable” as a future threat. That, to the dissent, goes too far; it’s too “expansive” a reading of the statute.

The majority’s position is that the aspiration of the statute is to effect a “complete” cleanup and that this allows the DEC to implement “limited actions that reduce rather than completely eliminate dangers”. Reduction rather than complete elimination is what the DEC has undertaken here, and quite properly, says the Court.

There are no specific fact patterns addressed in the opinion. The petitioner brought its proceeding as a frontal attack on the whole regulatory program. It wasn’t just one or a few owners objecting to the regulations’ application to specific parcels.

One of the regulations stated the goal to be to restore each site to “pre-disposal conditions”. Another said that the DEC can consider not only “current, intended” land uses, but also “reasonably anticipated future land uses”. The petitioner feared that this meant requiring removal of “every last molecule” of contamination and restoration of each site addressed to “pre-Columbian environmental quality”. The DEC, however, “disavows” any such intention, notes the Court, adding that the regulation requires cleanup only to the extent “feasible”.

In reconciling the 1989 decision with the present one a quarter century later, an observer might conclude that the judges, like the public at large, have come to a more sensitive appreciation of the accelerating risks of environmental contamination and have consequently become more deferential to the burdens of the agencies trying to counter them.

New York State Law Digest. No. 627 March 2012.  Editor: DAVID D. SIEGEL. New York State Bar Association, One Elk Street, Albany, New York. © Copyright 2012