How Clean is Clean in New York

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New York’s highest court recently upheld New York Department of Environmental Conservation’s (“NYDEC”) regulations regarding cleanups at contaminated sites.  In New York State Superfund Coalition Inc. v. New York State DEC, No. 189 (12/15/11), the New York State Superfund Coalition, a group of companies that own contaminated sites in New York, challenged NYDEC’s regulations requiring responsible parties to cleanup contaminated sites to “predisposal conditions.”

The Coalition argued that the regulations were not authorized by the applicable state statute, Article 27, Title 13 of New York’s Environmental Conservation Law, contending that the statute only required environmental cleanups to eliminate significant threats to human health and the environment.  The court rejected the Coalition’s arguments and held that the regulations were a valid and reasonable exercise of NYDEC’s powers.  The Court determined that NYDEC’s regulations, when read in conjunction with the entire statute, were consistent with the legislative intent and goals to require a complete cleanup of inactive hazardous waste sites.

The Court also addressed the Coalition’s concern that NYDEC’s regulations would require that every site be remedied to a pristine condition.  The Court recognized that while NYDEC has the authority to order the cleanup of a site, such power is not unfettered.  In determining the scope and nature of a cleanup, the Court noted that NYDEC must consider a number of factors including the technical feasibility and cost of the remedy, the danger to human health and the environment and the extent to which the remedy would reduce such danger.  The Court concluded that NYDEC is not empowered to unilaterally impose a remedy without considering the practicalities of such remedies.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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