Appellate Court Upholds DEC Hazardous Waste Regulations

Late last month, in New York State Superfund Coalition, Inc. v. New York State Department of Environmental Conservation, 68 A.D.3d 1588 (3rd Dept., 2009), the Appellate Division, Third Department dismissed a challenge to certain provisions of the New York State Department of Environmental Conservation (DEC) regulations governing the remediation of inactive hazardous waste disposal sites (commonly known as State Superfund sites).

In 2008, the New York State Superfund Coalition, a not-for-profit corporation, commenced an Article 78 proceeding against the DEC, seeking to annul certain parts of the State’s regulations governing the New York’s State Superfund program. These regulations, originally promulgated in the 1980s, were amended in 2006 as part of an omnibus revision of the regulations to reflect significant recent statutory changes to the State’s hazardous waste and brownfield laws.

New York’s State Superfund program was created by State law to ensure the proper identification and cleanup of properties where hazardous wastes were disposed of without a permit or permission. The law required the DEC to create a registry of hazardous wastes sites which would classify each site based on the DEC’s assessment of the threat it posed to the environment and public health. Of particular importance are sites identified as Class 2 sites which means that the DEC has determined that is “constitutes a significant threat to the environment. The State Superfund regulations (referred to as the Part 375 regulations) were promulgated to implement the State Superfund program.

The Superfund Coalition challenged two particular regulations –Part 375-2.8(a) and 375-1.8(f) -- on the ground that the DEC exceeded its statutory authority in promulgating them. These particular provisions addressed the goals of the Superfund Program’s remedial goals and the process for selecting an appropriate cleanup of Class 2 site, respectively. Supreme Court agreed with the Petitioner and invalidated these regulations. The DEC appealed.

The Third Department reviewed Environmental Conservation Law (ECL) 27-1313(5)(d), which governs the State Superfund remedial program and the regulations promulgated by the DEC. This provision states that the goal of such remedial program “shall be a complete cleanup of the site through the elimination of the significant threat posed by the disposal of hazardous wastes at the site…” Prior to the 2006 regulatory revisions, the applicable regulation, Part 375-2.8(a), stated that the goal of this remedial program was “to restore that site to pre-disposal conditions, to the extent feasible and authorized by law.” It also stated that the remedy must eliminate or mitigate all significant threats to the public health and environment in a manner not inconsistent with applicable federal law. The post-2006 amended regulations were essentially the same except that the new regulation deleted the clause “as authorized by law.”

The Superfund Coalition asserted that by removing this clause, the DEC impermissibly imposed on the regulated community a more stringent cleanup standard than that allowed by ECL 27-1313(5)(d) because a party can eliminate significant threat at an inactive hazardous waste site without necessarily cleaning up the site to pre-disposal conditions. The Third Department rejected this position entirely.

The Court found ECL 27-1313(5)(d) to be ambiguous because in setting out the remedial goals of the program, the statutory language refers to both a “complete cleanup” of the site and the elimination of the significant threat. The Court then stated that when a statutory provision is ambiguous, as here, then it must give deference to the DEC’s interpretation of it because the DEC is the agency in charge of administering this hazardous waste disposal site program. The Court also found that the DEC’s interpretation of the remedial goal in the statute, as detailed in the post-2006 revised regulation, was reasonable. The Court’s determination seems to rely on its view that this regulation includes a limitation on the pre-release condition cleanup requirement by including the phrase “to the extent feasible. ” The Court found father support for its deference to DEC on the fact that the regulation at issue only applies when DEC has already determined a site to be a ‘significant threat’ and that the overall regulatory goals of the State Superfund program are broad enough to allow a wide range of methods once the DEC has made such a determination.

Finally, the Court noted that the Legislature chose not to amend the statute, which has been in place for many years, despite these ambiguities. The Court ruled that the “Legislature’s acquiescence thereto must be inferred based upon its failure to clarify or change the remedial goal.” Therefore, since the regulations at issue in the appeal were consistent with the State Superfund program’s statutory scheme and since the DEC acted within its authority, the Court ruled that the regulations were valid and that the Supreme Court’s ruling court’s was in error and had to be reversed.