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Declaratory Ruling 27-32: Coltec Industries, Inc.

State of New York
Department of Environmental Conservation

In the Matter of the Petition of
COLTEC INDUSTRIES, INC.
for a Declaratory Ruling

Introduction

Petitioner, Coltec Industries, Inc.,by its attorneys, has submitted a petition dated December 21, 2000 for a declaratory ruling with respect to the applicability to a certain state of facts of a statute and a regulation enforceable by the Department of Environmental Conservation, namely, Title 7 of Article 27 of the environmental Conservation Law ["ECL"] and Part 360 of title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York ["NYCRR"]. In particular, Petitioner seeks a declaratory ruling that remedial activities which it proposes to undertake at the Liberty Industrial finishing inactive hazardous waste disposal site would not violate the so-called Long Island Landfill Law, ECL 27-0704, and its implementing regulation, 6 NYCRR Subpart 360-8. I find that it is in the public interest to issue a declaratory ruling in response to the instant petition.

Background

The Liberty Industrial Finishing inactivE hazardous waste disposal site is located in Farmingdale, Nassau County, New York. The site is listed as site #130005 on the Registry of Inactive Hazardous Waste Disposal Sites maintained by the Department of Environmental Conservation pursuant to ECL 27-1305. The site is also listed on the National Priorities list maintained by the United States Environmental Protection agency pursuant to §105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ["CERCLA"], 42 USC 9605.

Petitioner represents that it is performing an ongoing remediaL Action at the site, and that the most cost-effective remedy for the site is that referred to as remedial alternative SL-4M, which would consist of the following activities:

  • excavation of contaminated soil from the location of former surface impoundments to a maximum depth of twenty-one feet below-grade

  • excavated soil contaminated with cadmium at concentrations greater than one-hundred-twenty milligrams-per-kilogram would be segregated for off-site disposal

  • the fifteen feet below-grade to twenty-one feet below-grade and ten feet below-grade to fifteen feet below-grade strata of the excavation, i.e., the seasonal groundwater fluctuation zone and a buffer zone, would be backfilled with clean fill, and the grade to ten feet below-grade stratum of the excavation would be backfilled with excavated soil contaminated with cadmium at Concentrations less than one-hundred-twenty milligrams-per-kilogram, and/or with chromium

  • the excavation would be capped with a low-permeability asphalt Cover system.

Thus, while the implementation of alternative SL-4M would result in the off-site disposal of soil containing contamination at levels sufficiently high to cause it to be subject to regulation as hazardous waste, it would also result in the on-site disposal of soil containing contamination at lesser levels, merely relocated to a position five feet above the seasonal groundwater fluctuation zone.

Analysis

ECL 27-0704 was enacted in 1983. Its enactment was made upon the legislature's finding that "... the land burial and Disposal of domestic, municipal and industrial solid waste poses A significant threat to the quality of groundwater and therefore the quality of drinking water in the counties of Nassau and Suffolk. This threat is particularly dangerous since the potable water supply for the counties is derived from a sole source aquifer. Scientific evidence and analysis have identified the incapacity of land burial and disposal to isolate leaching chemicals and gases from the surrounding environment over the long term." Laws of 1983, chapter 299, §1. The protection of groundwater quality in those two counties is a matter of general State concern: generally see Town of Islip vs. Cuomo, 64 N.Y.2d 50 (1984). ECL 27-0704.1.e defines a "landfill" as "a disposal facility at which solid waste, or its residue after treatment, is intentionally placed and at which, waste shall remain after closure," and ECL 27-0704.1.b defines a "deep flow recharge area" by reference to the Long Island Comprehensive waste Treatment Management Plan of 1978, which is defined at ECL 27-0704.1.f and adopted by ECL 27-0704.2. ECL 27-0704.3 prohibits the commencement of operation of a new landfill in a deep flow recharge area; and ECL 27-0704.4 prohibits the commencement of Operation of a new landfill outside of deep flow recharge areas, with certain exceptions not relevant.

6 NYCRR Subpart 360-8 was adopted in 1988. Its adoption was for the purpose of implementing ECL 27-0704. Pursuant to 6 NYCRR 360-8.1, landfills located in Nassau County and Suffolk County are subject to 6 NYCRR Subparts 360-1, 360-2 except for specified provisions relating to certain monofills, and Subpart 360-8. 6 NYCRR 360-8.2(a) does not incorporate the definition of "landfill" at ECL 27-0704.1.e, but 6 NYCRR 360-8.2(b) incorporates the definition of "landfill" at 6 NYCRR 360-1.2(b)(95) which, although different from the statutory definition in some stylistic respects, is identical to it in providing that a "landfill" is a facility at which solid Waste or its residue after treatment is "intentionally placed."

ECL 27-0704.1 does not define the concept of intentional placement that is a vital component of the statutory definition of the term "landfill." Thus, there is no statutory definition to be incorporated by 6 NYCRR 360-8.2(a).

However, it is a well-established rule of construction that ordinary words are to be read utilizing their ordinary meanings: generally see McKinney's Statutes §§94, 232.

Similarly, 6 NYCRR 360-1.2(b) does not define the concept of intentional placement that is a vital component of the regulatory definition of the term "landfill." And thus, too, there is no regulatory definition to be incorporated by 6 NYCRR 360-8.2(b).

However, 6 NYCRR 360-1.2(b), which applies equally to landfills located in Nassau County and Suffolk County via 6 NYCRR 360-8.1, straightforwardly provides that "[u]nless otherwise noted, all words and terms contained in this Part are defined by their plain Meaning."

Therefore, the concept of intentional placement as used in both the statutory definition and the regulatory definition of the term "landfill" should be applied in the instant matter with its ordinary plain meaning, and, applying it with that meaning, it is readily apparent that the proposed remedial activity consisting of the disposal of contaminated soil into an unlined pit where it is meant to remain indefinitely, would involve the intentional placement of that contaminated soil in the unlined pit and so constitute the commencement of operation of a new landfill, which is prohibited.

Finally, it is noted that petitioner contends that, in 6 NYCRr part 360, the Department of Environmental Conservation has incorporated Part 300 of Title 40 of the Code of Federal Regulations, the National Oil and Hazardous Substances Pollution contingency Plan ["NCP"] adopted by the United States environmental Protection Agency pursuant to CERCLA §105, 42 USC 9605, including the definition of the term, "placement," as part of a policy articulated in the preamble to the adoption of the NCP in its present form which appears in 55 F.Reg. 8666, at 8758 to 8760 (March 8, 1990). This contention has been considered and found to be without merit. It is fundamental that an administrative agency such as the Department of Environmental Conservation may not adopt a regulation inconsistent with the statute which it administers. Therefore, 6 NYCRR Subpart 360-8 must be understood as using the concept of intentional placement consistently with the concept used in ECL 27-0704. As observed supra, both the statute and the regulation implementing it use the concept of intentional placement with its ordinary plain meaning. Because the statute and the regulation both effectively define the concept of intentional placement, albeit not explicitly, there is no necessity to look to the NCP or elsewhere for a definition. Moreover, it would be incorrect to assume that the Legislature in enacting ECL 27-0704 in 1983 using the concept of intentional placement defined by its ordinary plain meaning, intended to require the adoption by the Department of Environmental Conservation of a special esoteric definition created in a policy for the application of a federal regulation that was not adopted until 1990. And moreover, it is clear that the mention at 6 NYCRR 360-1.3(a)(2)(ii)(e) of that volume of Title 40 of the Code of Federal Regulations containing Parts 300 through 399, inclusive, is per se not the incorporation by reference of the entire contents of that volume, including the NCP: rather, it is nothing more than the recitation required by Executive Law §102(1)(c).

Conclusion

I rule that the remedial activities described as remediaL Alternative SL-4M which petitioner proposes to undertake at the Liberty Industrial Finishing inactive hazardous waste disposal site would violate ECL 27-0704 and 6 NYCRR Subpart 360-8.

Dated: Albany, New York
february 28, 2001

Frank V. Bifera
general Counsel

TO: Sive, Paget & Riesel, PC
Attention: Michael S. Bogin, Esq.
460 Park avenue
New York, New York 10022-1906

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