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In the Matter of New York State Superfund Coalition, Inc v. New York State Department of Environmental Conservation

December 15, 2011

IN THE MATTER OF NEW YORK STATE SUPERFUND COALITION, INC., APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Jones, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Petitioner New York State Superfund Coalition, Inc. (Superfund Coalition) commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge certain regulations promulgated by the New York State Department of Environmental Conservation (DEC or the Department) with respect to remedial programs implemented to clean "inactive hazardous waste disposal sites."*fn1 The Superfund Coalition asserts that the regulations are ultra vires and impermissibly allow DEC to order expansive remedial programs that contravene the limited legislative goal of article 27, title 13 of the Environmental Conservation Law to identify and remove only "significant threats." We hold that DEC did not exceed its authority or act contrary to law in enacting the subject regulations.

I

In 1979, the Legislature enacted article 27, title 13 of the Environmental Conservation Law to address the public issue of inactive hazardous waste disposal sites. At the time of the enactment, DEC had identified approximately 530 sites throughout the state that posed a threat to public health and the environment given their "proximity to densely populated areas or . . . water courses or aquifers" (Budget Report on Bills, Bill Jacket, L 1979, c 282). At the time, inactive hazardous waste disposal sites were largely unregulated, as opposed to active waste disposal sites which were monitored under state and federal systems of regulation (see id.). As inactive sites were essentially unmonitored, there was no standard practice of ensuring adequate disposal or containment of hazards to minimize environmental impacts (see id.). The 1979 enactment was proposed to place the burden of remedying these sites on those responsible for the presence of waste material, or in the alternative, task DEC with implementing a remedial program in the event the responsible party was unknown, unable or unwilling to ameliorate the situation.

The Superfund Coalition is a not-for-profit corporation whose members consist of commercial entities that own land within the State of New York listed on a registry of sites subject to Department regulation. Previously, in Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation (75 NY2d 88 [1989]), the Superfund Coalition asked this Court to address DEC regulations regarding the identification of "inactive hazardous waste disposal sites" requiring remedial action (see ECL § 27-1303; 27-1313 [3]). In that case, this Court annulled the regulation, concluding that DEC had acted beyond its authority by enacting overreaching regulations that conflicted with the statutory scheme of the Legislature. While the Legislature had envisioned the utilization of a "significant threat" standard in the identification of inactive hazardous waste disposal sites -- which contemplated the existence of an actual threat, or "more than the mere presence of hazardous waste" (75 NY2d at 93) -- the corresponding regulation permitted the Department to identify waste sites based on the potential existence of hazardous waste (see id. at 93-94). This Court observed that, as constructed, "the DEC regulation would allow remedial programs to be ordered for all inactive hazardous waste disposal sites, not just those which pose a significant threat as targeted by the Legislature" (id. at 94 [internal quotation marks omitted]).

In this appeal, the Superfund Coalition now challenges regulations concerning the nature and breadth of remedial programs implemented to clean inactive hazardous waste disposal sites following their identification under the "significant threat" standard set forth by the Legislature. It commenced a combined CPLR article 78 proceeding and declaratory judgment action to challenge and annul regulations 6 NYCRR 375-2.8 (a), 6 NYCRR 375-1.8 (f)(9) (i), 6 NYCRR 375-2.2 (i) (7) and 6 NYCRR 375-1.8 (g) (5) on grounds that their adoption was in excess of the DEC's jurisdiction, and arbitrary and capricious.

Supreme Court granted the petition in part, invalidating 6 NYCRR 375-2.8 (a) and 6 NYCRR 375-1.8 (f) (9) (i) as null and void.*fn2 The court reasoned that:

"ECL 27-1313 (5)(d) authorizes a complete cleanup to the extent of the elimination of the significant threat and of the imminent danger of irreversible or irreparable damage to the environment. Had the Legislature wished to return every inactive hazardous waste site to predisposal conditions, it could have stopped at a complete cleanup.

But it did not . . . In ignoring the statutory definitions and goals, the revised regulation is an unlawful continuation by the DEC to equate hazardous waste with significant threat, in that a return to predisposal conditions necessitates removal of all hazardous wastes, whereas the statute requires only the elimination of the significant threat and of the imminent danger of irreversible or irreparable damage to the environment" (__Misc 3d__ [Sup Ct, Albany County 2008] [internal citation and quotation marks omitted]).

The Appellate Division unanimously modified by reversing the portion of Supreme Court's order that annulled the two regulations (68 AD3d 1588 [3d Dept 2009]). The court, finding ambiguity in the language of section 27-1313 (5), deferred to DEC's interpretation and concluded that "the regulatory goal is consistent with the statutory definition of inactive hazardous waste disposal site remedial program which is broad enough to allow the employment of a wide range of methods and may address even potential hazards once DEC has made the threshold determination that remediation is necessary" (68 AD3d at 1590 [internal citation and quotation marks omitted]). This Court granted the Superfund Coalition leave to appeal (15 NY3d 712 [2010]).

The issue before this Court is whether regulations 6 NYCRR 375-2.8 (a) and 6 NYCRR 375-1.8 (f) (9) (i), which call for the restoration of inactive hazardous waste disposal sites to "pre-disposal conditions, to the extent feasible" exceed the enabling authority of Environmental Conservation Law § 27-1313 (5) (d) which provides, in pertinent part, that the goal of a remedial program is "a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site." We hold that they do not, and now affirm.

II

It is axiomatic that "an agency's authority must coincide with its enabling statute" (Matter of New York State Superfund Coalition, 75 NY2d at 92).

"Administrative agencies, as creatures of the Legislature within the executive branch, can act only to implement their charter as it is written and as given to them. An agency cannot create rules, through its own interstitial declaration that were not contemplated or authorized by the Legislature and thus, in effect, empower themselves to rewrite or add substantially to the administrative charter itself" ...


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