The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER
Presently before the Court are a motion to reconsider and two
opposing summary judgment motions. The motion to reconsider is premised
upon a discovery ruling that denied Plaintiffs, Bath Petroleum Storage,
Inc., and its parent company E.I.L. Petroleum, Inc. (collectively
"Plaintiffs" or "Bath") access to documents of Defendants, New York's
Department of Environmental Conservation ("DEC"). At issue in the summary
judgment motions is whether DEC is preempted
by several federal statutes from regulating the Bath facility.
MOTION FOR RECONSIDERATION
The first motion before the Court is Plaintiffs' motion for
reconsideration in part of the Magistrate Judge's Order of April 25,
2002. (Dkt. No. 92). Specifically, Plaintiffs seek reconsideration of
their request that 10 documents at issue in that Order be released. For
the reasons provided below, Plaintiffs' request for reconsideration is
I. Motion for Reconsideration Standard
There are three possible grounds upon which a motion for
reconsideration may be granted: (1) an intervening change in controlling
law, (2) the availability of new evidence not previously available, or
(3) the need to correct a clear error of law or prevent manifest
injustice. In re C-TC 9th Ave. Partnership,
182 B.R. 1, 3 (N.D.N.Y. 1995). A district judge may reconsider any pretrial
matter determined by a magistrate judge under a "clearly erroneous or
contrary to law" standard of review. See
28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a). A party seeking to overturn a ruling
under the clearly erroneous standard generally bears a "heavy burden."
See Corn-Tech Assoc., v. Computer Assoc., Int'l, Inc.,
753 F. Supp. 1078, 1099 (E.D.N.Y.1990), aff'd, 938 F.2d 1574 (2d
Cir. 1991). The Supreme Court has stated that "[a] finding is `clearly
erroneous' when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." U.S. v. United States
Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)
(quoted in Derthick v. Bassett-Walker Inc., Nos. 90 Civ. 5427,
1992 WL 249951 at * 8 (S.D.N.Y. Sept. 23, 1992)). Pursuant to this highly
deferential standard of review, magistrate judges are afforded broad
discretion and reversal is only appropriate if there is an abuse of
discretion. See Derthick v. Bassett-Walker Inc., 1992 WL 249951
at * 8
(S.D.N.Y. Sept. 23, 1992). See, e.g., Nikkal Industries.
Ltd, v. Salton, Inc., 689 F. Supp. 187, 189 (S.D.N.Y. 1988)
(magistrate judge's decision on discovery dispute should be afforded
substantial deference and overturned only if found to be an abuse
As Bath makes no claim that there has been an intervening change in the
controlling law, nor that there is new evidence that was not previously
available, the Court reads its' motion as claiming that the Magistrate
Judge's decision involved a clear error. Therefore, the motion for
reconsideration will be granted only upon a finding that the Magistrate
Judge abused his discretion.
II. Magistrate Judge's Ruling
In the instant case, the Magistrate's Judge's order of April 25, 2002
was issued in response to an on-going dispute concerning the discovery of
98 documents. Therein, Judge Treece ordered the release of 20 of the
disputed documents. Judge Treece further ordered that the remaining
documents were privileged and granted Defendant a protective order,
precluding Plaintiffs' discovery of them. Bath now seeks reconsideration
of this order with respect to 10 documents held to be privileged by Judge
(a) Deliberative Process Privilege
The deliberative process privilege "rests on the obvious assertion that
officials will not communicate candidly among themselves if each remark
is a potential item of discovery and front page news, and its object is
to enhance the quality of agency decisions by protecting open and frank
discussion among those who make them within the Government." Dep't
of Interior v. Klamath
Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001)
(internal citations and quotations omitted). To qualify for this
privilege, the documents must be (1) predecisional, and (2) deliberative.
Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d. Cir.
1999). "A document is predecisional when it is prepared in order to
assist an agency decisionmaker in arriving at his decision. . . . The
privilege protects recommendations, draft documents, and other subjective
documents which reflect the personal opinions of the writer rather than
the policy of the agency." Id. (internal citations and
quotations omitted). "A document is deliberative when it is actually
related to the process by which policies are formulated." Id.
Furthermore, the privilege does not generally extend to material which is
purely factual, and factual material once severed from the privileged
material in a document is discoverable. Id. (collecting cases).
In assessing DEC's claims of privilege to the documents at issue, Judge
Treece relied on the April 5, 2002 affidavit of Bradley J. Field,
Director of Mineral Resources of DEC.*fn2 Mr. Field's affidavit was
filed and continues to be under seal. Plaintiffs acknowledge that the
affidavit's contents have not been revealed to them. (Dkt. No. 93 at 2).
Because they have not reviewed the document that provide the basis for
Judge Treece's decision, Plaintiffs recognize that they "cannot
substantively challenge Field's assertions in support of the claim of
privileges as to these particular documents at issue." (Dkt. No. 93 at
2). Rather, Plaintiffs go on to say that "they are confined to putting
forth, as best they can, reasons why the documents would appear, from the
made, to fall outside of the asserted privileges." (Dkt. No. 93 at
2). While Bath puts forth specific arguments for each document, Bath has
not seen the documents nor Mr. Field's detailed affidavit and its
arguments amount to conjecture. Such conjecture on the part of Plaintiffs
can hardly be sufficient to carry the "heavy burden" placed on them to
demonstrate that the Magistrate Judge abused his discretion. Plaintiffs
recognize that they "cannot knowledgeably evaluate whether [Mr. Field's
affidavit's] contents comply with the legal requirements necessary to
sustain the privileges asserted" and they "ask this Court to make that
independent analysis." (Dkt. No. 93 at 3). Such requests indicate that
rather than meeting their burden, Plaintiffs have redistributed it to the
Mr. Field's April 5, 2002 affidavit satisfies the requirement that the
affidavit specifically designate and describe the information that is
purportedly privileged for eight of the ten disputed documents.*fn3
Mobil Oil v. Dep't. of Energy, 520 F. Supp. 414, 416 (N.D.N.Y.
1981). Mr. Field's affidavit provides for each of these documents: (1) a
description, (2) the type of deliberation(s), and (3) the agency position
or decision to which it led. The descriptions of the documents in Mr.
Field's April 5, 2002 affidavit are often extensive and leave little
mystery as to the contents of the disputed material. Those descriptions
that are brief describe documents which themselves are short, or
otherwise, additional information describing the documents appear in the
column specifying the type of deliberation.
1. Documents must be deliberative
The government bears the burden of proving that the document is
Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 44
(N.D.N.Y. 1991). Mr. Field's affidavit satisfies this requirement by
explaining for each document the "type of deliberation(s)". Mr. Field
provides an extensive explanation of such matters, noting whether the
document contains the writer's own analysis, viewpoint, or
recommendations. The deliberative process privilege is intended to
protect documents with such personal opinions from dissemination. The
sworn explanations of Mr. Field, in addition to a review of the
documents, provide sufficient evidence that the Magistrate did not abuse
his discretion in finding that the documents at issue were deliberative.
2. Documents must be pre-decisional
The government also bears the burden of proving the documents were
pre-decisional. Mary Imogene Bassett Hosp., 136 F.R.D. at 44.
The Magistrate did not abuse his discretion in holding that this
requirement was satisfied as to the contested documents. The DEC's policy
positions, or decision, that the documents fueled are explained by Mr.
Field in his affidavit. It is clear from such descriptions that the
documents were created prior to the DEC's final decision on the matters
contained in each. Hence, the Magistrate Judge did not abuse his
discretion in finding that these documents were pre-decisional, and the
documents therefore satisfied the requirements for the deliberative
3. No need for discovery outweighs the privilege
Plaintiff makes no convincing argument that the need for discovery of
these documents outweighs the privilege. See, e.g., Mary Imogene
Bassett Hosp., 136 F.R.D. at 44 (instructing that the deliberative
process privilege is a qualified one, and the court must conduct a
balancing test, considering (i) the relevance of the evidence sought to
be protected; (ii) the availability of other evidence; (iii) the
seriousness of the litigation and the issues involved; (iv) the role of
government in the litigation; and (v) the possibility of future
timidity by government employees who will be forced to recognize that
their secrets are voidable). While Plaintiffs argue that an in
camera inspection of the documents cannot substitute for a
comprehensive affidavit, (Dkt. No. 93 at 4), in the present case, the
inspection of the documents, coupled with the Field affidavit that
Plaintiffs have not seen, supply the Court with sufficient knowledge of
the documents' contents. See Grand Cent. P'ship, 166 F.3d at
483. The Magistrate did not abuse his discretion and there was no clear
error in finding that privilege attaches these eight documents.
4. Privilege question is moot with respect to the remaining
The Court now takes up consideration of the remaining document, namely
Document Bates No. 800101-800103.*fn4 As ordered by a subpoena served
upon the Governor's Office of Regulatory Reform on December 31, 2001,
Plaintiffs obtained an un-redacted copy of the 800101-800103 document.
(Dkt. No. 95 at 7). As this document is in Plaintiffs' possession, the
question of discovery is moot. The Court declines to decide whether the
Magistrate Judge abused his discretion in holding that the deliberative
process privilege was properly invoked as to this document.
Plaintiffs argue that New York is preempted from regulating its
facility by Congress' grant of authority to the Environmental Protection
Agency ("EPA") in the Safe Water Drinking Act ("SDWA"),
42 U.S.C. § 300f (2001), et seq. Specifically, Bath asks the Court
to hold that the state is preempted based on two permits that were issued
to Bath by the EPA under the SDWA's Underground Injection Control ("UIC")
program, 42 U.S.C. § 300h to 300h-8. Bath further argues
that the DEC is preempted because of the assertion of jurisdiction
by the Federal Energy Regulatory Commission ("FERC") under the Natural
Gas Act ("NGA"), 15 U.S.C. § 717, et seq., and Natural
Gas Pipeline Safety Act ("NGPSA"), 49 U.S.C. § 60101, et
Bath further seeks to preclude DEC action by claiming that the agency
has failed to enact regulations that would allow it to require sonar
surveys. Finally, Bath objects to the enforcement action that DEC is
pursuing against it.
Bath operates a facility in Steuben County, New York that stores
liquified petroleum gas ("LPG") in salt storage caverns which lie
approximately ½ mile below the surface of the earth. (Dkt. No.
116, ¶ 7).
Bath created these caverns by "solution-mining." In this process, a
well is first drilled from the surface of the earth until it reaches the
permeable salt layer. Fresh water is then pumped into the salt layer. The
water becomes saturated with salt, and the resulting mixture, brine, is
contained in the newly created cavern. When Bath receives LPG product, it
transfers brine from the underground caverns into holding ponds on the
surface to create storage space in the caverns. In response to delivery
requests, Bath pumps brine from the holding ponds into the caverns to
displace LPG that is stored there.
On March 8, 1996, Bath filed an application with the EPA for a Class
IID UIC Permit ("Class IID permit"). On May 21, 1996 Bath filed for a
Class III UIC Permit ("Class III permit").
(Dkt. No. 112, ¶ 15). Around August 1998, the EPA issued both
permits.*fn5 The scope of these permits is a source of contention
between the parties.
Bath and DEC agree that the Class IID permit allows Bath to dispose of
solution mined brine through a Class IID underground injection well,
Bath's Well No. 8. Bath argues that this permit gives it the authority to
operate that well as a brine disposal well, and the DEC is preempted from
further regulating Well No. 8 in any way that interferes with the rights
granted in that permit. DEC contends that to operate the well, a State
Pollutant Discharge Elimination System ("SPDES") permit, pursuant to New
York's Environmental Conservation Law ("ECL") Article 17, is also
required. DEC argues that in contrast to the UIC permit ...