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Thompson Corners, LLC v. New York State Department of Environmental Conservation

ELR Citation: 44 ELR 20113
Nos. 516042, (N.Y. App. Div., 05/15/2014)

A New York appellate court held that the subsequent owner of property formerly used as a permitted hazardous waste treatment, storage, or disposal (TSD) facility need not provide financial assurance for the ongoing performance of corrective action on the property. Article 27 of New York's Environmental Conservation Law—the state's version of RCRA—imposes financial assurance requirements as a condition for obtaining a permit to operate a TSD facility. But there is nothing in the plain language of the statute or its implementing regulations that impose financial assurance requirements on subsequent owners of a former TSD facility that never had, or was required to have, a TSD permit. Rather, the financial assurance requirements are expressly linked with a permitted TSD facility. Here, the facility is no longer subject to a TSD permit. The state argued that the owners were nonetheless required to provide financial assurance for monitoring and maintaining the site's corrective action management unit (CAMU), but the court disagreed. Although the presence of the CAMU unquestionably subjects the owner to continuing obligations, the CAMU alone does not subject the owner to the financial assurance requirement.