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State can require ‘complete’ Superfund site cleanup

In this file photo, a locked gate secures the perimeter to the Love Canal site in Niagara Falls. The Court of Appeals ruled Thursday the state can require polluted Superfund sites to be returned to pre-industrial conditions, and that “complete cleanup” is consistent with the 1970s Superfund legislation. The law was created after the environmental disaster at Love Canal, which was removed from the Superfund list in 2004. AP Images

ALBANY — The state can require companies to return polluted Superfund sites to pre-industrial conditions, the New York Court of Appeals ruled Thursday in a win for environmentalists. The court said the state Department of Environmental Conservation may require polluters to restore sites to a level the judges call “complete cleanup.”

The ruling came in a lawsuit regarding the state’s Superfund program and its regulations, separate from the federal Superfund program. The suit was brought by corporations who banded together as The New York Superfund Coalition.

In 2007, the group argued the state’s law and regulations required companies to do only the best job that is feasible to clean up the biggest environmental threat.

It cited a potentially contradictory provision of state regulation: “The goal of the program … is to restore that site to pre-disposal conditions, to the extent feasible. At a minimum, the remedy selected shall eliminate or mitigate all significant threat to the environment.”

But elsewhere in state regulation, companies are compelled to make a “complete cleanup.”

The difference in those two directives can cost companies hundreds of millions of dollars.

The Appellate Division, Third Department found the regulations ambiguous, and that the state DEC was reasonable in requiring a complete cleanup.

On Thursday, the Court of Appeals ruled 5-2 that complete cleanup is consistent with the 1970s Superfund legislation, which was created after the environmental disaster at Love Canal in western New York.

“There is no discernible difference between the use of the phrase ‘complete cleanup’ … and ‘pre-disposal conditions, to the extent feasible’ in the DEC’s regulations,” according to the decision.

Judge Eugene Pigott Jr. disagreed, saying the ruling forces the cleanup of even “insignificant” environmental threats.

The state agency’s regulation “goes beyond what any competent legislature would permit … a questionable policy of imposing upon private landowners the financial burden of eliminating insignificant threats to the environment which, in my view, is hardly a goal that justifies compelling private citizens to expend large sums of money,” Piggott wrote in a dissenting opinion.

A polluted site put on the Superfund list by the state can cost a company millions of dollars to restore.

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