In a decision dated December 15, 2011, the New York Court of Appeals held that the New York Environmental Conservation Law (ECL) permits the State to require cleanup to pre-disposal conditions. New York State Superfund Coalition, Inc. v New York State Department of Environmental Conservation, 2011 WL 6217346 (NY 2011). The Superfund Coalition challenged the State Superfund regulations, which are codified at 6 NYCRR Part 375, alleging that section 375-2.8, should be void as not authorized by the statute. Section 375-2.8 states that “The goal of the remedial program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible.” The challenge was based on the provisions of the ECL that talk about elimination of the significant threat and the ECL’s definition of inactive hazardous waste disposal site remedial program, which includes “activities undertaken to eliminate, remove, abate, control or monitor health and/or environmental hazards in connection with inactive hazardous waste sites.” The terms abate and control clearly evidence something less than return to pre-disposal conditions.
The good news is that the Court of Appeals sees the provision regarding pre-disposal conditions as “aspirational,” not mandatory. The Court of Appeals recognizes that “technical feasibility and cost effectiveness bear importantly on remedy selection.” The Court of Appeals went further and explained that the word feasible in the statutory phrase “to the extent feasible” is not limited to technical feasiblity. Thus, factors such as “the nature of the danger” and “the extent to which the actions would reduce the danger” are important factors in determining the scope, nature and content of remedial programs.
What this means for regulated parties, is that in the debate regarding how best to create a remedial program, the regulated parties should focus not on what the State can do, but on what it should do. The State can aim for pre-disposal conditions. However, important factors such as cost, technical feasibiliity, risk and the extent to which further remediation will reduce that risk determine what should be done.