The Citizens’ Environmental Coalition, Sierra Club, and the New York Public Interest Research Group ("Petitioners") have sued the New York State Department of Environmental Conservation (“DEC”) over the recently promulgated regulations governing the Brownfields Cleanup Program ("BCP") and other remedial programs. The lawsuit challenges three subparts of Part 375 of Title 6 of the New York Code, Rules and Regulations (NYCRR): Subpart 375-1 “General Remedial Program Requirements” and Subpart 375-6 “Remedial Program Soil Cleanup Objectives” (“SCOs”), which apply to the BCP as well as the State Superfund Program and the Environmental Restoration Program; and the Subpart 375-3 “Brownfield Cleanup Program” regulations, which apply only to the BCP.
The principal claim in the litigation is that DEC’s newly-adopted SCOs are too lenient. These regulatory provisions represent the first-ever official soil cleanup objectives applicable in New York State, replacing DEC’s long-used “TAGM 4046” guidance. In many situations, the new SCOs are less demanding than the guidance levels in TAGM 4046, as the SCOs are designed to achieve cleanups that are consistent with the proposed use of the affected property, rather than achieving pre-contamination conditions. The SCOs are therefore linked to the prospective use and may rely on engineering and institutional controls, as well as on Environmental Easements, to assure that the remediation is protective of the environmental and public health in light of the proposed use of the site.
Petitioners allege that DEC set the SCOs at levels that do not sufficiently protect surface water and marine ecology. They also claim that the SCOs do not sufficiently protect indoor air quality from “vapor intrusion” by Volatile Organic Compounds. According to the Petition, DEC misused data to establish “background” contaminant level SCOs, and failed to account for “historically achieved cleanup levels” at other sites. Had DEC considered this information, Petitioners assert, DEC would have had to set more stringent SCOs.
At the same time, Petitioners are challenging DEC’s new eligibility criteria as being too strict. According to Petitioners, DEC’s issuance of regulations that establish a blanket exclusion from the BCP for any property contaminated solely by an “off-site source or sources”, which includes so-called "historic" or "urban" fill, violates the BCP’s statutory mandate. The BCP enabling legislation defines “brownfield site” to include “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant.” ECL § 27-1405(2). Petitioners therefore contend that DEC has no authority to limit a site’s BCP eligibility based on “only contamination from on-site sources.”
Overturning the SCOs could potentially have significant impacts on the cost of conducting a BCP remediation—or other State-supervised cleanup. On the other hand, expanding the scope of eligibility to include sites contaminated by off-Site sources—including “historic fill”—could mean that many more sites could participate in the BCP and enjoy both its liability protection and tax credit benefits. We will be carefully monitoring this lawsuit and will keep you apprised.
