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January 18, 2012

Court of Appeals Sustains, but Tempers State's Cleanup Standard

In a split decision, the New York State Court of Appeals ruled on November 15 in New York State Superfund Coalition, Inc. v. NYSDEC that the regulatory cleanup goal for the State Superfund program of "pre-disposal conditions to the extent feasible" is not contrary to law. Prior to sustaining the regulation, however, the majority of the Court determined that the statutory goal of a "complete cleanup" is aspirational, since the statute recognizes that New York State Department of Environmental Conservation (DEC) may implement limited actions that reduce rather than completely eliminate the dangers." [Slip Op. p. 9]. Nevertheless, the Court felt that, when "justified," the statutory cleanup goal for a remedial program ought to encompass "a more thorough cleanup" than what is required to achieve conditions protective of the anticipated use. The minority of the Court found the regulation to be arbitrary, capricious and contrary to the enabling law.

The majority of the Court also recognized that the regulatory language, "pre-disposal conditions, to the extent feasible," is neither found in the statute nor defined in the regulation, and therefore, was susceptible to being applied arbitrarily at a particular site. So, the Court's decision placed a number of substantive restrictions on how the DEC can interpret "pre-disposal conditions, to the extent feasible," including an expansion of the due process afforded private parties. Thus, the Court's opinion in effect provided DEC directions on how it is to apply that the "pre-disposal conditions" cleanup goal.

First, the Court expressly did not read the "complete cleanup" language in the statutory goal statement as supporting a cleanup that removes every last molecule. The Court noted that DEC also disavowed any intention of requiring removal of 'every last molecule' of contamination or cleanup to 'pre-Columbian environmental quality." [Opinion p. 10].

Second, the Court elevated consideration of the "cost-effectiveness" of the remedial measure to the same level as consideration of the measure's "technological feasibility." As the Court stated, the cleanup goal is to be read as "a preference for the most thorough cleanup that makes sense in light of technical feasibility and cost-effectiveness." [Opinion p. 10]

Third, the Court noted that factors to be assessed by DEC in determining whether a remedial measure is 'cost-effective,' include "whether the elimination of the imminent danger"¦ to the environment "¦ posed by the significant threat 'can be achieved through limited actions;'" [Opinion p. 9, Court's emphasis]; and "'the extent to which' remedial action undertaken by DEC 'would reduce such danger to human health and the environment.'" [Opinion p. 9, Court's emphasis]. Thus, the Court appears to be espousing an assessment of cost-effectiveness of a remedial measure based upon a determination that the incremental environmental benefit is not outweighed by the cost.
Fourth, the Court favorably noted that "technical feasibility and cost-effectiveness bear importantly on remedy selection," and "for example, "¦ may allow a responsible party to prepare a site for a "restricted use." [Opinion p. 10]. The Court expressly found that "there is no statutory authority, or indication in the regulations that DEC is empowered to arbitrarily fashion a remedial program" that "would compel a reversion to pristine environmental conditions." [Opinion p. 12]. The Court warned DEC that it is not empowered to unilaterally fashion a remedial program without due consideration of the practicalities of such a measure as "the statutory scheme expressly ties the scope of such program to the particular characteristics for each regulated site." [Opinion p. 12].

Last, the Court of Appeals viewed the State Superfund law as also encompassing a right to a hearing as to the non-arbitrariness of the remedial measure selected by DEC. The Court stated that "[t]he Department cannot arbitrarily exercise its authority as the Legislature has provided a specific process prior to the implementation of any remedial program by which landowners subject to DEC regulation may contest the order of such a measure." [Opinion p. 13]. The Court used the same phrase, "of such a measure," in the paragraph immediately above to refer back to "the scope, nature and content of such [remedial program]." [p. 12].

This right to a due process hearing on remedy selection would apply to the ECL §27-1313(4) hearing as to whether a person was the "responsible party." Nevertheless, because the Court of Appeals was considering the Department's application of the "pre-disposal conditions, to the extent feasible" cleanup standard across the entire spectrum of the State Superfund program, the extent of the procedural due process right of the remediating party to an hearing on remedy selection, which the Court found to exist, may also be broadly applicable across the State Superfund program and not necessarily limited to the confines of the ECL §27-1313(4) hearing. The creation of a factual administrative record on the "feasibility" of the remedial program selected by DEC, including its technological feasibility and its cost-effectiveness, will facilitate review of DEC's actions by the courts.
The above reading of the Court's Opinion is further supported by the Court's summation that "these administrative directives can be constrained by technological feasibility, cost-effectiveness and procedural due process, among other things."[p. 14]. The Court is indicating that not only must DEC's determination regarding the remedial program consider technological feasibility and cost-effectiveness, but that that such a determination is also subject to the procedural due process of a hearing.

These limitations will, hereafter, not leave the selection of site-specific remedies to DEC's unfettered discretion, and better allow potentially responsible parties to seek relief from the lower courts should DEC be unreasonable in its approach to remedy selection. Had DEC been left to its own devices, it would never have elevated "cost-effectiveness" to be an equal constraint on pre-disposal conditions as "technical feasibility," never have disavowed any intention of requiring removal of 'every last molecule' of contamination, and never subjected its remedy selection to the procedural due process of an administrative hearing. The members of the Superfund Coalition who challenged DEC's undefined remedial goal of "pre-disposal conditions, to the extent feasible" can take some satisfaction in this achievement and its potential for limiting arbitrary remedial decision making.
Moreover, because two judges, Judges Pigott and Smith, dissented and adopted the Superfund Coalition's view that "pre-disposal conditions" was not supported by the law, there is even further reason to believe that this Court of Appeals is willing to further constrain DEC if the facts of a case demand.

If you would like more information on the content of this Legal Alert please contact any member of the Environmental Practice Area.


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