| Matter of New York State Superfund Coalition, Inc. v New York StateDept. of Envtl. Conservation |
| 2009 NY Slip Op 10015 [68 AD3d 1588] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of New York State Superfund Coalition, Inc.,Respondent, v New York State Department of Environmental Conservation et al.,Appellants. |
—[*1] Hiscock & Barclay, L.L.P., Rochester (Thomas F. Walsh of counsel), forrespondent.
Stein, J. Appeal from an amended judgment of the Supreme Court (Sackett, J.), entered July8, 2008 in Albany County, which, among other things, partially granted petitioner's application,in a combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment, toannul certain regulations promulgated by respondent Department of EnvironmentalConservation.
In 1979, the Legislature created the State Superfund Program to address the threatsassociated with inactive hazardous waste disposal sites (see ECL art 27, tit13).[FN1]Respondent Department of Environmental Conservation (hereinafter DEC) is responsible foradministering the program. Pursuant to statute, DEC is empowered to require the developmentand [*2]implementation of remedial programs for sites at whichthe Commissioner of Environmental Conservation determines that the accumulated hazardouswastes "constitute a significant threat to the environment" (ECL 27-1313 [3] [a]; seeECL 27-1313 [1]). In accordance with the Commissioner's authority to "promulgate rules andregulations necessary and appropriate" to carry out the purposes of the State Superfund Program(ECL 27-1315 [1]), 6 NYCRR part 375 was promulgated.
Petitioner, a not-for-profit corporation with members who own property that is or may besubject to the State Superfund Program, commenced this combined proceeding pursuant toCPLR article 78 and action for a declaratory judgment to challenge various regulations relatingto the State Superfund Program. Supreme Court invalidated 6 NYCRR 375-2.8 (a) and 375-1.8(f) (9)[FN2]on the basis that DEC exceeded its statutory authority in promulgating these regulations.Respondents now appeal.
Pursuant to ECL 27-1313 (5) (d), "[t]he goal of any [inactive hazardous waste disposal site]remedial program shall be a complete cleanup of the site through the elimination of thesignificant threat to the environment posed by the disposal of hazardous wastes at the site and ofthe imminent danger of irreversible or irreparable damage to the environment caused by suchdisposal." Prior to amendments made in 2006, the regulations provided that the goal of such aremedial program was "to restore that site to pre-disposal conditions, to the extent feasibleand authorized by law. At a minimum, the remedy selected shall eliminate or mitigate allsignificant threats to the public health and to the environment presented by contaminantsdisposed at the site . . . in a manner not inconsistent with [applicable federal law]"(6 NYCRR former 375-2.8 [a] [emphasis added]). However, that regulation was amended in2006 to, among other things, delete the explicit requirement that the goal of restoring a particularsite to predisposal conditions be authorized by law. The lawfulness of the goal, as revised, is atissue here. Petitioner contends—and Supreme Court found—that the elimination ofthe words "and authorized by law" impermissibly requires cleanup to a more stringent standardthan that set forth in the enabling statute because elimination of a significant threat does notnecessarily require return to predisposal conditions.
We disagree. Where a statute is ambiguous and its interpretation "involves specialized'knowledge and understanding of underlying operational practices or entails an evaluation offactual data and inferences to be drawn therefrom,' [we] defer to the administrative agency'sinterpretation unless irrational or unreasonable" (Matter of KSLM-Columbus Apts., Inc. vNew York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005], quotingKurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; see Matter of Golf vNew York State Dept. of Social Servs., 91 NY2d 656, 667 [1998]). In setting forth the goalof a hazardous waste site [*3]remedial program, ECL 27-1313(5) (d)—the statute from which 6 NYCRR 375-2.8 (a) is derived—refers both to acomplete cleanup of the site and to the elimination of the significant threat to the environment. Inour view, the language of that statute is ambiguous and DEC's interpretation of the remedial goalset forth in ECL 27-1313 (5), as articulated in the current regulations, is reasonable. Of particularnote is that 6 NYCRR 375-2.8 (a) specifically references the goal that the remedy "eliminate. . . all significant threats" and limits the requirement of restoration to predisposalconditions "to the extent [that such restoration is] feasible."
Significantly, the regulations at issue here apply only when DEC has already determined thata significant threat to the environment exists (see ECL 27-1313 [3]) and, therefore, donot render the statutory threshold superfluous (compare Matter of New York State SuperfundCoalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88, 93 [1989]).Furthermore, the regulatory goal is consistent with the statutory definition of "inactive hazardouswaste disposal site remedial program" (ECL 27-1301 [3]), which is broad enough to allow theemployment of a wide range of methods and may address even "potential hazards" once DEChas made the threshold determination that remediation is necessary.
Additionally, "[w]here the practical construction of a statute is well known, the Legislatureis charged with knowledge and its failure to interfere indicates acquiescence" (Engle vTalarico, 33 NY2d 237, 242 [1973]; see Matter of Knight-Ridder Broadcasting vGreenberg, 70 NY2d 151, 157 [1987]). The regulations challenged here have been in placesince 2006 and the remedial goal promulgated therein is identical to the goal promulgated in1992, but for the proviso that it be limited to the extent "authorized by law."[FN3]The Legislature's acquiescence thereto must be inferred based upon its failure to clarify orchange the remedial goal. Thus, inasmuch as the remedial goal set forth in 6 NYCRR 375-2.8 (a)and referenced in 6 NYCRR 375-1.8 (f) (9) is consistent with the State Superfund Program'sstatutory scheme and DEC acted within its statutory authority, we conclude that Supreme Courterred in vacating these regulations.
Cardona, P.J., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the amendedjudgment is modified, on the law, without costs, by reversing so much thereof as grantedpetitioner's application to annul 6 NYCRR 375-2.8 (a) and 375-1.8 (f) (9); petition dismissed tothat extent; and, as so modified, affirmed.
Footnote 1: An inactive hazardous wastedisposal site is "any area or structure used for the long term storage or final placement ofhazardous waste" where no permit or authorization has been issued for the disposal of hazardouswaste (ECL 27-1301 [2]).
Footnote 2: This regulation sets forth one ofthe factors to be considered in selecting a remedy for a contaminated site and makes directreference to land use "where cleanup to pre-disposal conditions is determined not feasible" (6NYCRR 375-1.8 [f] [9] [i]). Although Supreme Court also invalidated 6 NYCRR 375-2.2 (i) (7),respondents expressly abandoned any challenge to that determination. Furthermore, petitionerdid not appeal from Supreme Court's dismissal of petitioner's application with regard to 6NYCRR 375-1.8 (g) (5).
Footnote 3: Upon reviewing the legislativehistory, we agree with DEC's contention that such language was mere surplusage.