In the Matter of FMC Corporation, Respondent,v.New York State Department of Environmental Conservation, Appellant.BriefN.Y.March 21, 2018To be argued by Frederick A. Brodie Time requested: 15 minutes APL-2017-00019 Appellate Division, Third Department No. 522187 H>tate of JBteto lÿork Court of appeals! FMC CORPORATION, Petitioner-Respondent, -against- THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent-Appellant. REPLY BRIEF OF RESPONDENT-APPELLANT, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent- Appellant The Capitol Albany, New York 12224-0341 Telephone: (518) 776-2317 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General ' MAUREEN F. LEARY Assistant Attorney General FREDERICK A. BRODIE Assistant Solicitor General of Counsel Dated: August 11, 2017 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES iii PRELIMINARY STATEMENT 1 ARGUMENT 3 POINT I TITLE 9 AUTHORIZED DEC TO USE THE STATE SUPERFUND TO CLEAN UP CONTAMINATION CAUSED BY FMC’S FACILITY . . ,3 A. FMC’s “Interim Status” Did Not Make Lawful Its Releases of Hazardous Waste to the Environment .. 3 B. DEC May Use the State Superfund under Title 9 Because FMC Was Not Authorized to Contaminate Neighboring Properties . C. FMC’s Releases of Hazardous Waste to the Environment Were and Are Unlawful, Regardless of When They Occurred .4 6 D. The 1991 Order Did Not “Settle” FMC’s Remedial Obligations or DEC’s Right to Clean Up Contamination on Adjoining Properties E. Section 27-0916(1) of the ECL Does Not Require a Hearing Before DEC May Use the State Superfund 10 12 F. The Affidavits in Support of DEC’s Motion for Leave Were Properly Included in the Record... 13 i POINT II TITLE 13 INDEPENDENTLY AUTHORIZED DEC TO CLEAN UP USING THE STATE SUPERFUND WITHOUT FIRST HOLDING AN ADMINISTRATIVE HEARING . 15 A. No Hearing is Required Before DEC Cleans Up Hazardous Waste Under ECL § 27- 1313(5)(d) 15 B. DEC Was Not Required to Issue an Administrative Order to FMC Before Accessing the State Superfund C. DEC Made All Reasonable Efforts to Obtain FMC’s Cooperation, and Proceeded with Cleanup Only in the Face of FMC’s Failure and Refusal 16 22 D. The Hearing Provided by Title 13 Does Not Encompass Review of DEC’s Remedial Decisions 25 E. FMC’s Challenges to Particular Remedial Actions are Immaterial to the Issues on Appeal F. Allowing DEC to Access the State Superfund Without an Administrative Hearing Would Not Deprive FMC of Any Process Due .. 25 28 CONCLUSION 30 ii TABLE OF AUTHORITIES CASES PAGE Anderson v. John L. Hayes Constr. Co., 243 N.Y. 140 (1926) 19 ASARCO LLC v. Goodwin, 756 F.3d 191 (2d Cir. 2014) .8 Boomer u. Atlantic Cement Co., 26 N.Y.2d 219 (1970) 10 FMC Corp., Matter ofv. N.Y.S. Dep’t ofEnv. Conserv., 151 A.D.3d 1416 (3d Dep’t 2017) 24 Lashins Arcade Co., Matter of v. Jorling, 221 A.D.2d 533 (2d Dep’t 1995) 15 NYC C.L.A.S.H., Inc., Matter of v. N.Y.S. Office of Parks, Recreation & Historic Preservation, 27 N.Y.3d 174(2016) . 21 N.Y. State Superfund Coal., Inc., Matter ofv. N.Y.S. Dep’t of Envtl. Cons., 18 N.Y.3d 289 (2011) 29 Nguyen v. Holder, 24 N.Y.3d 1017 (2014) 13 United States v. Northeastern Parm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986) 9 iii TABLE OF AUTHORITIES (cont’d) PAGE STATE STATUTUES C.P.L.R. article 78 24n, 28, 29 Environmental Conservation Law title 9 .. § 27-0900 § 27-0901(2) .. § 27-0911(1) § 27-0911(2) § 27-0913(l)(a) § 27-0914 § 27-0914(2) § 27-0916(1) § 71-2727(3)(a) passim .8 5, 6,7 .8 7 7 5, 12 5, 6, 9, 14 .... passim 12 Environmental Conservation Law title 13 § 27-1305(2)(b)(l) § 27-1305(2)(b)(2) §27-1313 § 27-1313(3), § 27-1313(3)(a) .. § 27-1313(3)(b) § 27-1313(4) § 27-1313(5)(a) § 27-1313(5)(b) § 27-1313(5)(c) § 27-1313(5)(d) . § 27-1313(5)(f) passim 16 16 17 15, 16, 19, 25 17, 29 15n :.... 15, 16, 19, 25 ..15, 20 15 15 1', 2, 15, 16, 18, 19 17, 18 State Financial Law § 97-b(4) § 97-b(6) 17 21 iv TABLE OF AUTHORITIES (cont’d) PAGE STATE RULES AND REGULATIONS 6 N.Y.C.R.R. § 375-2.1l(c)(l)(i)(d)(4) § 375-2.11(d) §621.3 §621.11 ,22 17 12 12 22 N.Y.C.R.R § 500.14(a)(3) 13 FEDERAL STATUTUES 42 U.S.C § 6926(b). § 6928(h) § 6973(a). § 9607(a). § 9607(b). 9 12 .8 28 28 MISCELLANEOUS 1979 N.Y. Laws ch. 282 §1 ,7 Budget Report on Bills, “Arguments in Support,” A8176-A (1979) 20 Governor’s Remarks at the Press Conference for the Hazardous Waste Bill-signing Ceremony (July 28, 1982), Reprinted in Public Papers of Governor Carey 8 v TABLE OF AUTHORITIES (cont’d) PAGE Letter, State of New York Department of Health to Counsel to the Governor re: Assembly A 8176-A (June 28, 1979) . 20 N.Y. Statutes (1971) 13, 19 Restatement (First) of Torts (1934), 10 Revised Mem. In Support of SI0620 7 Subcommittee on Oversight and Investigations, Committee on Interstate and Foreign Commerce, 96th Cong., Rep. on Hazardous Waste Disposal (Comm. Print 1979) 8 vi PRELIMINARY STATEMENT For a year, DEC engaged in fruitless negotiations with FMC to obtain cleanup of toxic waste at neighboring properties, including a school complex and private residences, which FMC’s facility had contaminated.1 Ultimately, DEC entered into agreements with the neighboring landowners and undertook the cleanup itself, using the State Superfund. In taking that step, DEC relied on two specific subsections of New York’s environmental statutes: ECL title 9, section 27-0916(1), and ECL title 13, section 27-1313(5)(d). The Third Department held that DEC could not clean up the neighboring properties, even though FMC did not own those properties and had failed and refused to clean them up fully. The Third Department held that ECL section 27-0916(1) did not apply to facilities operating in “interim status,” and that use of the State Superfund under title 13 would first require an administrative order after an adjudicatory hearing. In its opening brief to this Court, DEC demonstrated that interim-status facilities are not shielded from cleanup liability when they release 1 The abbreviations and citation forms adopted in the Brief for Respondent-Appellant (DEC Br.) are continued herein. hazardous waste into the environment. DEC further showed that ECL section 27-1313(5)(d), the specific section of title 13 on which its action was also based, required neither an administrative order nor an adjudicatory hearing before DEC could remediate using the State Superfund. FMC’s responsive brief cites numerous other provisions of the State’s hazardous waste laws that require orders and hearings. Those provisions are not at issue here. As to the two provisions upon which DEC actually relied, FMC’s arguments fall short. DEC has authority to clean up hazardous waste when FMC fails and refuses to do so. Because the Third Department’s holdings are not only wrong, but also threaten DEC’s remediation activities at approximately 200 interim-status facilities and 224 State Superfund sites around the State, this Court should reverse. 2 ARGUMENT POINT I TITLE 9 AUTHORIZED DEC TO USE THE STATE SUPERFUND TO CLEAN UP CONTAMINATION CAUSED BY FMC’S FACILITY A. FMC’s “Interim Status” Did Not Make Lawful Its Releases of Hazardous Waste to the Environment. The Appellate Division held that, because FMC’s facility was in “interim status,” it “appeared]” that the facility was “operating lawfully” and title 9 did not apply. (R3054.) In its opening brief, DEC explained why the Appellate Division’s approach was untenable: a facility’s authority to operate in interim status does not render lawful its releases of hazardous waste into the environment and the resulting contamination of neighboring properties. (DEC Br. 30-32.) FMC does not defend the Third Department’s reasoning; instead, FMC disclaims it, urging that “[t]his case is emphatically not about whether cleanups can occur at interim status facilities.” (Brief for Petitioner-Respondent [FMC Br.] 5.) Consequently, this Court should make clear that interim status does not immunize facilities that release hazardous waste into the environment or bar DEC from cleaning up the contamination. Nevertheless, FMC argues that interim status allowed it to “maintain its existing hazardous waste disposal units” (FMC Br. 4). That 3 argument manifests the same fallacy to which the Appellate Division fell prey. While FMC could “maintain” its waste disposal units, FMC had no authorization to allow hazardous waste to escape those units and discharge, spill, or leak into the environment. (See R2861.) Yet that is precisely what happened here, repeatedly. (See, e.g., R1673-1676.) There is no dispute that FMC’s facility is the source of the extensive contamination found on neighboring properties. (See, e.g., R25, 274, 292- 294, 1535, 2235-2236.) As the facility’s owner/operator, FMC is liable for cleaning up that contamination regardless of when it was deposited. (See . infra Point 1(C).) Because all parties acknowledge that FMC’s facility is the source of excessive levels of arsenic and other contaminants at the school and residential properties, there is no merit to FMC’s unreasonable position that each illegal discharge must be shown to have deposited arsenic on those properties. (See FMC Br. 31-33.) B. DEC May Use the State Superfund under Title 9 Because FMC Was Not Authorized to Contaminate Neighboring Properties. Title 9 authorizes DEC to use the State Superfund to clean up contamination at the school and residential properties because the hazardous waste was “disposed” on those properties “unlawfully in 4 violation of section 27-0914.” ECL § 27-0916(1). Under section 27-0914, “[n]o person shall dispose of hazardous wastes without authorization.” The statute defines “disposal” as including “discharge,” “spilling,” and “leaking” of any substance “so that such substance . . . may enter the environment.” ECL § 27-0901(2). Nothing in that capacious definition limits “disposal” to “fly dumping or some similar unlawful incident,” as FMC contends (FMC Br. 29). FMC never had authorization to discharge, spill, or leak hazardous waste onto adjoining properties. Nor would DEC have granted such authorization. (R2861.) Moreover, “interim status” does not amount to such an authorization. (See DEC Br. 30-32.) Accordingly, the disposal of arsenic and other hazardous substances on the school and residential properties was “unlawful!] in violation of section 27-0914,” enabling DEC to use the State Superfund to clean up the contamination. See ECL §§ 27- 0916(1), 27-0914(2). 5 C. FMC’s Releases of Hazardous Waste to the Environment Were and Are Unlawful, Regardless of When They Occurred. FMC ignores title 9’s broad scope when it claims the statute does not apply because FMC stopped using arsenic in pesticides in 1974 {see FMC Br. 1, 29-30). To begin with, regardless of when FMC produced the hazardous substances, the release of those substances from FMC’s facility, including releases that reach neighboring properties, constitutes continuing “disposal” under title 9’s broad definition, which includes discharge, leaking, and spilling. See ECL § 27-0901(2). FMC never had “authorization” to discharge, leak, or spill hazardous waste into the environment, including onto neighboring properties. In fact, DEC would never authorize such disposal. (R2861.) It bears underscoring that the contamination at the school and residential properties is not at the FMC facility itself (which was also contaminated), but instead is on neighboring land. Because the discharges of hazardous substances, including those that reached neighboring land, were unlawful under title 9, they could be remedied using the State Superfund. ( See Point1(B).) See ECL §§ 27-0914(2), 27-0916(1). 6 Further, in title 9, the Legislature directed that corrective action— cleanup of hazardous waste— be taken “regardless of the time” at which the waste was deposited. ECL § 27-0911(2). Such cleanup encompasses not only the facilities themselves, but also “corrective action beyond the facility boundary where necessary to protect human health and the environment.” Id.; accord ECL § 27-0913(l)(a). Thus, FMC is liable for the cleanup of all hazardous waste that was discharged from the facility, • including waste discharged before 1974. Legislative history confirms the intent to require cleanup of hazardous waste regardless of when it was released. The State Superfund was intended to fund cleanup at over 600 existing hazardous waste sites that had not yet been addressed due to lack of funds. Budget Report on S.10620 (July 15, 1982) at 2, included in bill jacket; accord 1979 N.Y. Laws ch. 282, §1; Revised Mem. in Support of S10620 at 1, included in Bill Jacket. As the Governor observed upon its creation, the State Superfund was intended to “provide the financial resources to . . . eliminate some of the environmental problems of the past.” Governor’s Remarks at the Press Conference for the Hazardous Waste Bill-signing 7 Ceremony (July 29, 1982), reprinted in Public Papers of Governor Carey 1104. The same result obtains under federal RCRA. Relevant portions of federal RCRA impose liability even when disposal occurred before the statute became effective. United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 740-41 (8th Cir. 1986); accord Subcommittee on Oversight and Investigations, Committee on Interstate and Foreign Commerce, 96th Cong., Rep. on Hazardous Waste Disposal 31-32 (Comm. Print 1979) (citizen suit provision in RCRA § 7003, 42 U.S.C. § 6973(a), extends to “events which took place at some time in the past but which continue to present a threat to the public health or the environment”).2 In title 9, the New York Legislature plainly expressed its intent that the statute be administered “in a manner consistent with” federal RCRA and not “in a manner less stringent than provided in RCRA.” ECL § 27-0900; accord ECL § 27-0911(1) (standards applicable to owners and operators of hazardous waste facilities “shall be consistent” with 2 That is also true of CERCLA, the federal statute that permits DEC to recover its costs from FMC. See ASARCO LLC v. Goodwin, 756 F.3d 191, 200 (2d Cir. 2014). 8 standards under federal RCRA); 42 U.S.C. § 6926(b). The EPA approved title 9 on that basis. (R689.) In any event, FMC’s further argument that the record “contains no allegation of any unlawful releases of arsenic after 1991” (FMC Br. 29) is simply false. Unlawful releases of arsenic between 1991 and 2007 are documented at R1673, 1674, 1675, and 1676. Further, arsenic is not the only chemical of concern. The 1991 Order identified 50 different toxic substances that had been measured at excessive levels in the facility’s groundwater. (R277-286.) Those substances originated at FMC’s facility and contaminated surrounding properties through groundwater, soil, surface water, and air migration. (R292-294.) Upon remand, DEC is prepared to show that unlawful releases of hazardous waste at the FMC facility continued at least through May 2014. (See R3129-3133, 3134.) Finally, FMC is wrong to argue that the absence of a “notice of violation, civil penalty assessment, or corrective action” establishes the legality of its contamination (see FMC Br. 5). Title 9 nowhere requires that DEC prosecute an enforcement action before disposal of hazardous waste may be regarded as unlawful. Rather, to be unlawful under ECL § 27-0914(2)— and thereby support use of the State Superfund under 9 ECL § 27-0916(1)— the disposal of hazardous waste need only be “without authorization.” FMC was never authorized to contaminate its neighbors’ land. See generally Boomer v, Atlantic Cement Co., 26 N.Y.2d 219 (1970) (property damage from air pollution was actionable nuisance); Restatement (First) of Torts § 158 comment h (1934). D. The 1991 Order Did Not “Settle” FMC’s Remedial Obligations or DEC’s Right to Clean Up Contamination on Adjoining Properties. FMC’s position that the 1991 Order “settled” all disputes arising from pre-1991 contamination (FMC Br. 8, 21, 29) is baseless. The 1991 Order was not a “settlement” of FMC’s cleanup obligations. Indeed, it expressly disclaimed any intent to release “any person, firm, partnership, or corporation” from “any liability” relating to hazardous waste from the FMC facility. (R1206.) The 1991 Order specifically did not affect the issue in this appeal: DEC’s right to conduct remediation and later recover its costs from FMC. The Order reserved DEC’s right to “exercise its authority to undertake removal or remedial actions at any time,” subject to lawful constraints. (R1203.) And DEC expressly reserved all “statutory and regulatory powers, authorities, rights, remedies and defenses, both legal and 10 equitable, including the right to seek injunctive relief, cost recovery, monetary penalties, or punitive damages.” (R1201 [emphasis added]; see DEC Br. 19.) Reiterating the point, the 1991 Order provided that “[notwithstanding compliance with the terms of this Order, [FMC] is not released from liability for the costs of any response actions taken by EPA and/or DEC.” (R1203.) Accordingly, EPA and DEC expressly “reserve[d] the right to seek reimbursement from [FMC] for any costs incurred by the United States or the State of New York.” (R1203.) The 1991 Order directed preparatory work necessary before a final remedy could be chosen. It required certain interim corrective measures and created a framework under which FMC would study the area, “determine fully the nature and extent of any release(s) of hazardous waste and/or hazardous constituents from the facility into the environment,” and “gather necessary data to support the Corrective Measures Study.” (R1138.) Although the agencies expected that FMC would ultimately conduct a cleanup (see R2872), the 1991 Order did not fix the parties’ obligations following the Corrective Measures Study. That is why EPA ruled that DEC’s selection of CMA-9 was not subject to the 1991 Order’s dispute resolution provisions. As EPA recognized, “[r]emedy 11 selection and implementation” are “not included” in the 1991 Order. (R2767; see also R2879; FMC Br. 13.) E. Section 27-0916(1) of the ECL Does Not Require a Hearing Before DEC May Use the State Superfund. FMC argues at length that a hearing is required before DEC may act under other statutory provisions, including RCRA § 3008(h) (42U.S.C. § 6928(h)), ECL § 71-2727(3)(a), and the permitting procedures in 6 N.Y.C.R.R. §§ 621.3-621.11 (FMC Br. 19-23). But DEC is not relying on those other provisions. Instead, DEC is relying on the State Superfund to clean up the school and residential properties under title 9 based on the separate authority provided by ECL § 27-0916(1). The section of title 9 on which DEC relies does not require a hearing or even mention the need for one. Instead, it states plainly that DEC “shall have authority to clean up or return to its original state any area where hazardous wastes were disposed, possessed or dealt in unlawfully in violation of section 27-0914 of this article.” ECL § 27-0916(1). It is not surprising that some of New York’s environmental statutes require a hearing, while others do not. As shown in our opening brief, titles 9 and 13 give DEC a variety of options to further its mission to 12 protect human health and the environment. (See DEC Br. 4-11.) “When the legislature includes a condition in one provision but excludes it from another within the same statute, there arises an ‘irrefutable inference’ that the omission was intentional.” Nguyen v. Holder, 24 N.Y.3d 1017, 1022 (2014) (Graffeo, J., concurring) (citations omitted); see also N.Y. Statutes §§ 240, 363 (1971). F. The Affidavits in Support of DEC’S Motion for Leave Were Properly Included in the Record. FMC complains repeatedly about a handful of instances in which DEC’s appellate brief refers to affidavits submitted in support of DEC’s motion for leave to appeal. (See FMC Br. 5, 15-16, 30-32.) DEC responded comprehensively to FMC’s arguments in its June 19, 2017 Memorandum in Opposition to Motion to Strike (“MIO”), and we refer the Court to that document for a more detailed analysis. Here, it is sufficient to note the following. First, this Court’s Rules, see 22 N.Y.C.R.R. § 500.14(a)(3), allow DEC to include in the record the affidavits supporting its motion for leave to appeal. (MIO 3-5.) 13 Second, contrary to FMC’s argument (FMC Br. 30-31), the affidavits are not the only evidence of unlawful disposal. The record before the Third Department documented numerous illegal discharges from the facility that postdated the 1991 Order. (See R1673-1677.) Discharges before 1991 were likewise illegal because FMC was not authorized to contaminate its neighbors’ land or otherwise discharge contaminants into the environment. (See supra Point 1(B), (C); DEC Br. 31.) Unauthorized discharges are unlawful under ECL § 27-0914(2). Third, DEC is not relying on the affidavits to satisfy the elements of ECL § 27-0916(1) (compare FMC Br. 30-31). Rather, DEC identified additional evidence of contamination as an offer of proof, showing facts it could establish if the matter were ultimately remanded. (MIO 8.) Finally, DEC included the papers underlying this Court’s order granting leave to appeal to assure that the Court would proceed with an understanding of the importance of the issues presented and the ramifications of the order appealed. (MIO 5-6.) It is telling that FMC wants to prevent the Court from considering them. 14 POINT II TITLE 13 INDEPENDENTLY AUTHORIZED DEC TO CLEAN UP USING THE STATE SUPERFUND WITHOUT FIRST HOLDING AN ADMINISTRATIVE HEARING A. No Hearing is Required Before DEC Cleans Up Hazardous Waste Under ECL § 27-1313(5)(d). As it did with title 9, FMC argues that various provisions of title 13 require orders and hearings, citing ECL §§ 27-1313(3), (4) and 27- 1313(5)(a), (b), and (c). (FMC Br. 23-25, 34-38.) Those provisions are irrelevant because DEC did not rely on them.3 Instead, in addition to ECL § 27-0916(1) (see Point I), DEC’s remediation efforts at the school and residential properties were based on ECL § 27-1313(5)(d). Section 27-1313(5)(d) provides that DEC “shall be authorized to develop and implement an inactive hazardous waste disposal site remediation program” if “in the discretion of the department, it is cost- effective” to do so. On its face, that provision does not require an order or a hearing, but instead commits the remediation decision to DEC’s discretion. The provision also is not limited to class1sites {compare FMC 3 Thus, Matter of Lashins Arcade Co. v. Jorling, 221 A.D.2d 533 (2d Dep’t 1995) (cited at FMC Br. 23, 25, 37), does not control this case because it addressed ECL § 27-1313(3)(b). See Lashins Arcade, 221 A.D.2d at 534-36. 15 Br. 25-26, 36-37). Rather, the goals of a remedial program under ECL § 27-1313(5)(d) include eliminating a “significant threat to the environment.” That language tracks the definition of class 2 sites like FMC’s facility. See ECL § 27-1305(2)(b)(2). DEC’s authority under section 27-1313(5)(d) thus is not restricted to class 1 sites, which present an imminent threat. See ECL § 27-1305(2)(b)(l). The adjudicatory hearing provided in ECL § 27-1313(4), which the Third Department erroneously imposed here (R3054-3055), is required only when DEC issues an order “pursuant to subdivision three of this section,” i.e., ECL § 27-1313(3), directing the owner/operator to perform cleanup. Because DEC did not proceed under section 27-1313(3), section 27-1313(4) does not apply here. Thus, neither an order nor a hearing was required before DEC used the State Superfund to clean up FMC’s contamination. B. DEC Was Not Required to Issue an Administrative Order to FMC Before Accessing the State Superfund. Because the Commissioner’s issuance of an administrative order would require an adjudicatory hearing under ECL § 27-1313(3), FMC attempts to extract from several provisions in title 13 a requirement that 16 DEC administratively order FMC to clean up OUs 2, 4, and 5 before doing so itself. No such requirement exists. As DEC pointed out in its opening brief (DEC Br. 37), ECL § 27-1313(3)(a) provides that the agency “may order” the site owner to remediate, not that it must do so. As shown below, the other provisions cited by FMC did not require the issuance of an administrative order here. First, contrary to FMC’s assertion (FMC Br. 41), the requirement that DEC make “all reasonable efforts” to secure a responsible party’s agreement is not found in ECL § 27-1313. Instead, it comes from SFL § 97-b(4). That provision requires DEC, before accessing the State Superfund, to make “all reasonable efforts to secure voluntary agreement to pay the costs of necessary remedial actions” from responsible parties. SFL § 97-b(4) (emphasis added). A “voluntary agreement” is not a mandatory order. Furthermore, the DEC regulations defining the reasonable efforts necessary under SFL § 97-b(4) do not require such an order. See 6 N.Y.C.R.R. § 375-2.11(d). Second, FMC errs in citing ECL § 27-1313(5)(f) to argue that an order and hearing were required. That section states in part that DEC “shall make every effort, in accordance with the requirements for notice, 17 hearing and review provided for in this title to secure appropriate relief’ from a site’s owners and operators. (See FMC Br. 41-42.) Section 27- 1313(5)(f) does not impose new requirements, but rather underscores the need to follow the requirements elsewhere “provided for in this title” with the object of “secur[ing] appropriate relief’ from responsible parties. Here, DEC relied upon ECL § 27-1313(5)(d), which did not require it to issue an administrative order to the responsible party. DEC’s choice to proceed under section 27-1313(5)(d) did not rob section 27-1313(5)(f) of force, as FMC suggests (FMC Br. 41-42). The latter subsection still has application: it requires DEC to seek the “recovery of any reasonable expenses incurred by the state” in conducting the remediation as “appropriate relief’ from the site’s owner/operator. See ECL § 27- 1313(5)(f). DEC may recover its costs and reimburse the State Superfund by bringing an action under CERCLA at an appropriate time.4 4 Even if the Court were to adopt FMC’s interpretation of ECL § 27- 1313(5)(f) as requiring an administrative hearing before DEC takes any action under title 13, subsection (5)(f)’s effect does not extend beyond the requirements “in this title.” DEC still has a separate and independent basis for remediating FMC’s contamination under title 9, ECL § 27-0916(1). 18 Third, FMC argues that determining whether a remedy is “cost- effective” under ECL § 27-1313(5)(d) requires DEC to consider “the ability of the department to identify” a responsible party with sufficient financial resources to remediate. (See FMC Br. 38-39.) Of course, DEC complied with that directive: the Statement of Basis clearly identified FMC as a responsible party. (R2556; compare FMC Br. 40.) But while the statute lists identification of a responsible party as a “factorO to be considered,” see ECL § 27-1313(5)(d), it goes no further. There is no statutory basis for FMC’s contention that DEC “may not proceed under section 27-1313(5)(d)” where “there is an identified responsible party that has the financial resources to develop and to implement a remedy” (FMC Br. 40). The Legislature knew how to set conditions, see, e.g., ECL §27-1313(4), and did not do so here. Because the Legislature did not make the issuance of an administrative order a condition to DEC’s cleanup under section 27-1313(5)(d), or prohibit DEC from cleaning up without such an order, courts should not imply such a condition. See Anderson v. John L. Hayes Constr. Co., 243 N.Y. 140, 147 (1926); accord N.Y. Statutes §§ 240, 363. 19 Fourth, the legislative history that FMC cites does not support its position. The letter from the Department of Health (see FMC Br. 50-51) does not purport to summarize every one of title 13’s provisions. The passage cited by FMC describes the substance of ECL § 27-1313(5)(a), which applies when an owner or operator fails to comply with a previously issued cleanup order. See Letter, State of New York Department of Health to Counsel to the Governor re: Assembly A 8176-A (June 28, 1979) at 1. But DEC did not proceed under that provision here. And the letter’s June 28 date and its stamp— “Received After Action by Governor” — establish that it could not have influenced the Governor’s approval and the statute’s ultimate passage on June 26, 1979. In its incomplete quotation from the Budget Report (FMC Br. 51), FMC omits language expressly acknowledging DEC’s “practical ability to develop and implement remedial plans.” See Budget Report on Bills, “Arguments in Support,” A8176-A (1979) at 2 (cited at FMC Br. 51). Additionally, the passage quoted by FMC addressed situations in which the owner/operator is “unable to act or unknown.” Id. The Budget Report elsewhere recognizes that DEC may also “develop and implement a 20 remedial plan if the responsible person is unwilling,” id. at 1, the very situation presented here. No weight at all should be assigned to the Legislature’s failure in 2017 to overturn the Third Department’s decision while it remained on appeal to this Court. {See FMC Br. 51.) As this Court has recognized, legislative inaction “affords the most dubious foundation for drawing positive inferences.” Matter of NYC C.L.A.S.H., Inc. v. N.Y.S. Office of Parks, Recreation & Historic Preservation, 27 N.Y.3d .174, 184 (2016) (internal quotation marks and citations omitted). Finally, FMC’s proposed rule would not make sense in operation. It would render useless the State Finance Law’s requirement , that DEC “make all reasonable efforts to recover the full amount of any funds expended from the fund,” among other things “through litigation” leading to “court orders.” SFL § 97-b(6). More fundamentally, a responsible party like FMC might have “financial resources” to develop and implement an effective remedy {see FMC Br. 40), but might refuse to do so, as FMC did here. Under those circumstances, DEC is empowered to move forward on its own using the State Superfund. 21 C. DEC Made All Reasonable Efforts to Obtain FMC’s Cooperation, and Proceeded with Cleanup Only in the Face of FMC’s Failure and Refusal. FMC asserts that DEC should have administratively ordered it to clean up the neighboring properties because FMC was “willing to remediate.” (FMC Br. 41.) The record belies that claim. The record shows that, for almost a year after issuing the Statement of Basis outlining the necessary cleanup, DEC attempted to negotiate an administrative order on consent with FMC to implement CMA-9. (R2771; compare R2551 [Statement of Basis dated May 24, 2013] with R2711 [FMC email discontinuing negotiations dated April 28, 2014].) During that time, DEC participated in numerous meetings and conference calls with FMC, and exchanged several draft orders with FMC. (R2879-2880.) DEC’s efforts to obtain an agreement with FMC went well beyond the six-month maximum time frame established by DEC regulations for determining whether “all reasonable efforts” to secure a voluntary commitment have been made. See 6 N.Y.C.R.R. § 375- 2.11(c)(1)(i)(d)(4). On April 28, 2014, FMC’s General Counsel informed DEC that “FMC does not see a mutually agreeable path forward to allow us to 22 proceed with signing a new agreement” founded on the Statement of Basis. (R2711.) That email was clear and unequivocal. Nine days after receiving it, DEC decided to expend State funds to conduct the remediation itself, and to use all available means to recover its costs from FMC. (R2758.) Even after announcing its intention to spend State funds, however, DEC continued to seek agreement with FMC. (R2771.) Among other things, on June 26, 2014, DEC provided two alternative consent orders for FMC’s consideration, reflecting various proposed compromises on the scope of remediation and corrective action to be ordered. (R2825-2826.) DEC also offered FMC the option of implementing a portion of CMA-9 “without prejudice to FMC’s rights with respect to performance of the remainder” of the required cleanup. (R2845-2846.) DEC’s efforts did not succeed; FMC would not enter into an agreement. (R2881, 2905.) Ultimately, “[b]ased on FMC’s continuingfailure to agree to sign an order on consent encompassing implementation of [CMA-9], and the fact that FMC has failed to implement any corrective action at these OUs to date,” DEC concluded that FMC was not going to act. (R2849 [emphasis in original].) No agreement could be reached because FMC fundamentally 23 disagreed with DEC’s decision on cleanup levels as set forth in the Statement of Basis. (R2880.) Given the extensive history of DEC’s good-faith negotiation and FMC’s recalcitrance, FMG’s claim that DEC has not “acted with alacrity” (FMC Br. 38) rings hollow. Indeed, once DEC abandoned the attenuated and fruitless negotiations with FMC and moved forward to remediate the neighboring properties, FMC redoubled its efforts to block any cleanup. FMC brought three successive article 78 proceedings against DEC;5 a federal lawsuit against EPA; and, most recently, an April 24, 2017 motion for emergency relief asking this Court to enjoin DEC’s cleanup efforts. (See DEC Br. 25-26 n.6; FMC Corporation’s Motion for Emergency Relief and Order to Show Cause [April 24, 2017].) In short, DEC’s decision to proceed with remediation was reasonable and appropriate in light of FMC’s failure and refusal to undertake the remediation that DEC determined was necessary. 5 As FMC acknowledges (FMC Br. 18), after DEC’S opening brief was filed in this Court, the Appellate Division affirmed the dismissal of FMC’s third article 78 petition. Matter of FMC Corp. u. N.Y.S. Dep’t of Env. Conserv., 151 A.D.3d 1416 (3d Dep’t 2017). 24 D. The Hearing Provided by Title 13 Does Not Encompass Review of DEC’s Remedial Decisions. As DEC previously demonstrated (DEC Br. 41-42), even if a hearing were required before DEC could access the State Superfund under title 13— and none is— the scope of the hearing would be limited to “which persons are responsible” for cleanup. See ECL § 27-1313(4). Although FMC urges that section 27-1313(4) guarantees “procedural due process” (FMC Br. 24), it fails to address the specific limitation in that section. Because there is no dispute that FMC is a responsible party, the hearing contemplated by ECL § 27-1313(4) is unnecessary. E. FMC’s Challenges to Particular Remedial Actions are Immaterial to the Issues on Appeal FMC’s brief contains scattered attacks on particular remedial actions that DEC has taken in this matter, including conducting additional remediation on the school property and giving the surrounding property owners a voice in the remedial decisions for their individual properties. FMC’s arguments on those points are immaterial to the issue on appeal, namely, whether DEC had statutory authority to clean up contamination using State Superfund money under titles 9 and 13. Moreover, the arguments are meritless. 25 Initially, contrary to FMC’s contention (see FMC Br. 9, 13; R36), DEC has not reversed course on remediation at the school. Rather, the agency adjusted its remediation plans based upon additional required testing. The 1991 Order directed FMC to perform interim corrective work at the school athletic fields. (R2559, 2896.) In a May 2000 letter, DEC and EPA indicated that the schoolyard was suitable for use based on the agencies’ review of “currently available information.” (R1300-1301.) In the same letter, however, the agencies also observed that FMC was required to “perform and complete a RCRA Facility Investigation and subsequent Corrective Measures Study with regard to the entire Royalton-Hartland School property” and stressed that “[n]o final remedial decisions can be made with regard to the school yard until this process is completed.” (R1301.) And indeed nofinal remedial decision was made at that time. Subsequently, after reviewing FMC’s Investigation and Corrective Measures Study reports, DEC found in its Final Statement of Basis that additional cleanup at the school was necessary in areas other than those where interim corrective measures had previously been undertaken. (R2579.) 26 FMC’s contention that CMA-9 is “optional” for neighboring property owners (see FMC Br. 37; R35) is equally flawed. DEC is not required to remediate the entire area at once. And regardless of who conducts the remediation, residential property owners will want input into the decision on what work is done. DEC therefore reasonably built into the Statement of Basis an opportunity for property owner input and a requirement for property-specific plans. (R2579-2580, 2905.) The Statement of Basis gives current and future property owners, each year, a renewed opportunity to choose remediation. (R2576, 2918.) We are informed that, out of 71 property owners approached so far, 65 have agreed to remediation. Finally, FMC’s assertion that DEC and EPA sent “no further action” letters to property owners in 2013, after FMC performed interim corrective measures (FMC Br. 9), is misleading. The properties that received “no further action” letters are not the ones presently being remediated. 27 F. Allowing DEC to Access the State Superfund Without an Administrative Hearing Would Not Deprive FMC of Any Process Due. FMC is wrong to argue (FMC Br 39-40) that DEC has given it “no way to challenge” the selection of CMA-9. As DEC explained in its opening brief, FMC has two opportunities to do so. First, courts traditionally review DEC’s cleanup decisions under C.P.L.R. article 78. (See DEC Br. 41-42.) Here, FMC took advantage of that opportunity by bringing the underlying article 78 proceeding challenging the rationality of DEC’s cleanup decision. The lower courts are best entrusted with the task of determining whether any portion of that petition remains viable after this Court decides the instant appeal. Second, if and when DEC brings a cost-recovery action under CERCLA §§ 107(a)-(b), 42 U.S.C. §§ 9607(a)-(b), the defendant receives appropriate process and is able to assert defenses as permitted by the statute and case law. (See DEC Br. 47-48.) FMC should be restricted to those two well-established routes for challenging DEC’s remedial action. An administrative hearing is not necessary for “procedural due process” as FMC contends (FMC Br. 24). The discussion quoted by FMC considered a scenario in which DEC 28 orders a responsible party to conduct remediation. See Matter of N.Y. State Superfund Coal., Inc. v. N.Y.S. Dep’t ofEnvtl. Cons.,18 N.Y.3d 289, 299 (2011). Here, DEC has opted to conduct remediation itself rather than commencing a hearing pursuant to ECL § 27-1313(3)(a) to obtain a Commissioner’s order. (See Point 11(B).) Under these circumstances, FMC is not entitled to block DEC from “spending] the money in the first place” (FMC Br. 44). FMC will not sustain injury unless DEC prevails in a CERCLA action to recover its costs. If FMC ultimately prevails in the CERCLA action, DEC will be unable to recover its costs. Because article 78 and CERCLA amply protect FMC’s rights, this Court should reject FMC’s invitation to impose new administrative hearing requirements that impede DEC’s ability to clean up neighboring properties. 29 CONCLUSION The Appellate Division’s order should be reversed. Dated: Albany, New York August 11, 2017 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent-Appellant FREDERICK A. BRODIE Assistant Solicitor General BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General MAUREEN F. LEARY Assistant Attorney General FREDERICK A. BRODIE Assistant Solicitor General of Counsel The Capitol Albany, NY 12224-0341 (518) 776-2317 Reproduced on Recycled Paper 30 CERTIFICATION Pursuant to section 500.13(c)(1) of this Court’s Rules of Practice, I certify that, according to the word-processing system used to prepare this brief, the body of the brief (including footnotes) contains 5,460 words. Frederick A. Brodie