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Court rules in DEC’s favor regarding superfund sites;return to ‘pre-disposal conditions’ valid

By Fritz Mayer
December 21, 2011

ALBANY, NY — The highest court in the state has said that compelling nearly total cleanups of contaminated sites is legal. On December 15, the NYS Court of Appeals ruled that the Department of Environmental Conservation (DEC) may require companies that own sites listed in the state’s Superfund program to clean up the properties to “predisposal conditions, to the extent feasible.”

“We are pleased the Court of Appeals recognized the importance of DEC’s authority to require polluters to reach complete cleanup requirements at state Superfund sites. This is a substantial victory for the state’s citizens, land and water,” said DEC spokeswoman Emily DeSantis.

The DEC was sued by a group of companies, called the New York State Superfund Coalition, that own hundreds of polluted sites around the state. The coalition argued that the DEC was overreaching in requiring cleanup of the sites to predisposal conditions, and said that the NYS Superfund remedial program adopted in 1979 required only that any “significant threat to the environment” be removed.

In the five-to-two decision, the court noted that the relevant law regarding the program reads, “The goal of any such remedial program shall be 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 and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal.”

The coalition had argued that the “complete cleanup’” is accomplished only through the elimination of the “significant threat to the environment.” The court wrote, however, “In our view, this is a strained reading of a statute that on its face tasks the DEC with eliminating significant threats while also stating a preference for a more thorough or ‘complete’ cleanup.”

The court also noted that DEC’s authority does not stretch to the point where it can require the removal of “every last molecule” of contamination, and that “technical feasibility and cost-effectiveness” play a role in the selection of remedies for specific sites.

There are 50 Superfund sites in Orange County, 10 in Delaware and four in Sullivan. In Sullivan, the sites are a section of the Concord Hotel and Resort property in Kiamesha Lake; the Hills Holding Corporation Landfill in Fallsburg, the Cortese Landfill in Narrowsburg; and a discontinued aluminum recycling facility in Woodbourne.

Go to www.dec.ny.gov/chemical/8437.html for more information on the Superfund sites.