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Court of Appeals Sustains, but Tempers State’s Cleanup Standard by Thomas F. Walsh
Hiscock & Barclay, LLP - Rochester Office
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February 1, 2012
Previously published on January 2012
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.
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