Commissioner’s Finding Site Constituted a Significant Threat to Public Health or Environment Upheld

The Third Department affirmed the Commissioner of Environmental Conservation’s denial of petitioner’s request to reclassify a hazardous waste site.  The site is polluted with PCBs and is classified at level 2 (significant threat to public health or environment–action required).  The petitioner sought reclassification at level 3 (no significant threat to public health or environment–action may be deferred).  In finding the Commissioner’s determination supported by the evidence, the court wrote:

The Commissioner did not … premise his determination in this matter upon the mere presence of PCBs at the site and a potential for harm. He found that a highly toxic contaminant (i.e., PCBs) was present in concentration levels at the site that exceeded the environmental quality standards (see 6 NYCRR part 703; see also 6 NYCRR former 375-1.4 [b] [7]; 375-2.7 [a] [3] [viii]), and he determined that, under such circumstances, the contaminant could constitute a significant threat. We need not decide in this case whether such exceedances of environmental standards alone can — as stated by the Commissioner — constitute a significant threat since ultimately he did not premise his determination solely on such ground. Although setting forth in detail the reasons and record proof supporting a conclusion that the onsite impact of the PCB contamination at the site constituted a significant threat, he went on to find record support for actual threats and offsite impact on the river, wetlands and nearby wildlife. The exceedances of groundwater standards was clearly a significant factor; however, it was considered in conjunction with other proof pertinent to the ultimate finding of a significant threat. We are not persuaded that the Commissioner used an analysis at odds with the regulations or case law. Matter of ELG Utica Alloys Inc v Department of Envtl Conservation, 2014 NY Slip Op 02485, 3rd Dept 4-10-14