Words Matter in Environmental Cleanup Standards

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In New York State Superfund Coalition, Inc., v. New York State Department of Environmental Conservation, the highest court in New York recently put its own gloss on the long-standing environmental issue of "How Clean is Clean". There, the court held that, even though liability for cleanup under New York’s state Superfund statute is triggered when there is a “significant threat” to the environment, the state has authority to promulgate regulations requiring cleanup beyond what would be necessary to eliminate that significant threat. Specifically, the Court affirmed regulations that require cleanup to "pre-disposal conditions, to the extent feasible".

The court reached this result by a definitional sleight-of-hand. The court noted that the statute seeks "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." The court then goes on to claim that the statutory standard of a "complete cleanup" to eliminate threats is the same as the regulatory standard of returning the site to “pre-disposal conditions, to the extent feasible”.

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