Part 375 Legal Challenges

Staff Contact: Ken Pokalsky

Two entities, the Superfund Coalition, an industry group that successfully challenged the state's original superfund program rules, and a group of four environmental organizations -- Citizen's Environmental Coalition, Sierra Club, NYPIRG and Environmental Advocates -- have filed separate challenges to the state's revised superfund/brownfield rules, 6 NYCRR Part 375, which went into effect December 14, 2006.

The Superfund Coalition suit raises three issues: establishment of a "predisposal" goal for superfund cleanups; incorporation of CERCLA liability standards into the Title 13 program, while also denying responsible parties access to CERCLA defenses; and excluding consideration of land uses at Title 13 sites that are not consistent with current zoning. The coalition argues that all three provisions impose additional burdens on responsible parties at Title 13 sites, but are not authorized by statute.

The environmental groups raise eight causes of action, mostly related to Title 14 brownfield program cleanup requirements. They include: failure to adopt soil cleanup objectives (SCOs) that are protective of surface water or aquatic resources; failure to adopt cleanup standards that address the potential for vapor intrusion impacts on indoor air; failure to consider "historically achieved cleanup levels" in setting SCOs; ability to use site background conditions as basis for surface soil cleanups and ability to use soil cover that meets site background conditions; and precluding impact of off-site sources in determining a site's eligibility for the brownfield program.

Both challenges were filed in Albany County State Supreme Court. Copy of the motion papers are provided below.