New York State Superfund Coalition, Inc. v. New York State Dept. of Environmental Conservation

• Decision Date: 21 December 1989
• Docket Number: No. 1,No. 2,1,2
• Citation: 550 N.E.2d 155,75 N.Y.2d 88,550 N.Y.S.2d 879
• Parties: , 550 N.E.2d 155, 30 ERC 2087, 20 Envtl. L. Rep. 20,810 In the Matter of NEW YORK STATE SUPERFUND COALITION, INC., et al., Respondents, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Appellants. (Proceeding) In the Matter of CENTRAL HUDSON GAS & ELECTRIC CORP. et al., Respondents, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF THE STATE OF NEW YORK et al., Appellants. (Proceeding)
• Court: New York Court of Appeals Court of Appeals

Page 879

550 N.Y.S.2d 879

75 N.Y.2d 88, 550 N.E.2d 155, 30 ERC 2087,

20 Envtl. L. Rep. 20,810

In the Matter of NEW YORK STATE SUPERFUND COALITION, INC.,

et al., Respondents,

v.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et

al., Appellants. (Proceeding No. 1.)

In the Matter of CENTRAL HUDSON GAS & ELECTRIC CORP. et al.,

Respondents, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF THE STATE OF NEW

YORK et al., Appellants. (Proceeding No. 2.)

Court of Appeals of New York.

Dec. 21, 1989.

Robert Abrams, Atty. Gen. (David A. Munro, Peter H. Schiff, Albany, and Douglas H. Ward, of counsel), for appellants.

Thomas S. West, Domenick L. Gabrielli, Robert J. Alessi, Albany, and Thomas F. Walsh, Rochester, for New York State Superfund Coalition, Inc., and others, respondents.

Dennis P. Harkawik, Leon A. Allen, Jr., Bert H. Ware and Jesse T. Wilkins, New York City, for Cent. Hudson Gas & Elec. Corp. and others, respondents.

OPINION OF THE COURT

BELLACOSA, Judge.

This case and appeal concern the "Superfund" regulatory scheme, enacted by the Legislature and enforced by the Department of Environmental Conservation (DEC), addressing the enormous environmental problems associated with inactive hazardous waste disposal sites. When a threat to the environment from such sites becomes "significant", appellant DEC is statutorily empowered to order the landowner or polluter to develop and implement a remedial clean-up program. The core of the statutory and regulatory scheme is the definition and determination of "significant threat" and this litigation has thus far successfully challenged the implementing authority, the specificity and the sweep of the DEC actions.

New York State Superfund Coalition, Inc., a not-for-profit corporation, on behalf of itself and its members, sued in proceeding No. 1 for article 78 relief and for a declaration of invalidity of the regulation of the State Commissioner of Environmental Conservation (Commissioner) defining a "significant threat" as beyond the enabling statute (see, Boreali v. Axelrod, 71 N.Y.2d 1, 9, 523 N.Y.S.2d 464, 517 N.E.2d 1350). Central Hudson Gas & Electric Corporation and various other utilities sued in proceeding No. 2 for essentially the same relief on similar grounds. Supreme Court joined the two proceedings, declared the regulation invalid and annulled its entire regulatory framework. The Appellate Division affirmed, 144 A.D.2d 72, 536 N.Y.S.2d 886, and we granted to the State Commissioner and DEC leave to appeal. We agree with the lower courts and affirm the order appealed.

The Commissioner, pursuant to statutory authority (ECL 27-1315), promulgated 6 NYCRR part 375, effective April 16, 1987, as the regulatory rubric for the operation of ECL, article 27, title 13. ECL 27-1313(3)(a) provides: "Whenever the commissioner finds that hazardous wastes at an inactive hazardous waste disposal site constitute a significant threat to the environment, he may order the owner of such site and/or any person responsible for the disposal of hazardous wastes at such site (i) to develop an inactive hazardous waste disposal site remedial program, subject to the approval of the department, at such site, and (ii) to implement such program within reasonable time limits specified in the order." The portion of the regulatory framework at issue provides in pertinent part: "Upon a consideration of the findings of fact required by subdivision (b) of this section, the commissioner may determine that a significant threat to the environment exists when hazardous wastes at an inactive hazardous waste disposal site either actually or potentially: (1) violate any New York State environmental quality standard; (2) contaminate groundwater, surface water, flora, fauna or air; (3) pose a hazard to human health or the environment" (6 NYCRR 375.5[c].

Before a "significant threat" determination is made and the power to order a remedial program is invoked, the DEC must hold a hearing (6 NYCRR 375.5[a] and make specific findings as to the type and manner of disposal of the hazardous wastes on the site and various other factors indicating the site's impact on its particular environment (6 NYCRR 375.5[b]. The next subsection, 6 NYCRR 375.5(c), allows the Commissioner to determine, based on the findings, "that a significant threat to the environment exists when hazardous wastes at an inactive hazardous waste disposal site either actually or potentially: (1) violate any New York State environmental quality standard; (2) contaminate groundwater, surface water, flora, fauna or air; (3) pose a hazard to human health or the environment", plus four other instances which would allow the Commissioner to declare a "significant threat" exists (6 NYCRR 375.5[c][4]-[7] [emphasis added]. The core nature and pervasive impact of this portion of the regulation belies appellants' claim that it is merely "procedural" and therefore resistant to our substantive analysis.

The axiom that an agency's authority must coincide with its enabling statute opens that analysis (Matter of Tze Chun Liao v. New York State Banking Dept., 74 N.Y.2d 505, 510, 549 N.Y.S.2d 373, 548 N.E.2d 911; Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 243, 538 N.Y.S.2d 933, 536 N.E.2d 368). Here, ECL, article 27, title 13 focuses its purpose on the identification, classification and cleanup of inactive hazardous waste disposal sites. The statute defines hazardous waste as that which may "[p]ose a substantial present or potential hazard to human health or the environment" (ECL 27-1301[1][b]. Its own qualifying specificity requires a showing that the presence of hazardous wastes constitutes a "significant threat " before the DEC can order remedial action (ECL 27-1301[1][b]; 27-1313[3]. By its plain language, therefore, and to avoid an otherwise tautological standard, more than the mere presence of hazardous waste--which is always potentially hazardous--must be proven before a "significant threat" declaration under this regulatory scheme can be justified.

The promulgation of 6 NYCRR 375.5(c) by the Commissioner bestows upon himself the power to bypass or shortcut the legislative prescription and is thus beyond the express specification in the statute itself. The regulation allows the Commissioner to determine the existence of a "significant threat" at any inactive hazardous waste disposal site which simply "potentially * * * pose[s] a hazard to human health or the environment" (6 NYCRR 375.5[c][3]. By equating the statute's definition of "hazardous waste" with "significant threat", the regulation removes the specific qualifier, however subtle it may be, in the semantical and conceptual sense. Since the Legislature kept the concepts separate, so must the Commissioner. The distinction is indeed crucial; the Legislature required that the "significant threat" finding be...