ELR Citation: ELR 20810
No(s). 263 (N.Y. Dec 21, 1989)

The court holds that a provision of a state Superfund regulation that authorizes a finding of significant threat based on potential harms exceeds its enabling legislation and is not severable from the regulatory framework. A nonprofit corporation sued for a declaration of the regulation's invalidity. The enabling statute defines hazardous waste as that which poses "a substantial present or potential hazard to human health," and requires a showing of significant threat before the state can order remedial action. However, the court concludes that the disputed provision allows the state to determine the existence of a significant threat at any inactive hazardous waste disposal site that poses only a potential hazard to human health or the environment. The court thus holds that the provision circumvents the enabling legislation's requisite showing of significant threat. The court also holds that the provision cannot be severed from the remainder of the regulation. The significant threat standard is the regulation's core and is interwoven inextricably through the entire regulatory scheme. Thus, judicial excision of one provision to let the rest survive is inappropriate.

Counsel for Appellants
David A. Munro, Peter H. Schiff
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330

Counsel for Respondents
Thomas S. West, Domenick L. Gabrielli, Robert J. Alessi
Nixon, Hargrave, Devans & Doyle
One KeyCorp Plaza, Albany NY 12207
(518) 434-6000

Dennis P. Harkawik, Leon A. Allen Jr., Bert H. Ware, Jesse T. Wilkins
LeBoeuf, Lamb, Leiby, MacRae
520 Madison Ave., New York NY 10022
(212) 715-8000