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June 13, 2005.

JOHN P. CAHILL, Individually and as Commissioner of the New York State Department of Environmental Conservation, MARY ELLEN KRIS, Individually and as Regional Director, Region Two, WILLIAM R. ADRIANCE, Individually and as Chief Permit Administrator of Region Two, STUART M. FOX, Individually and as Deputy Chief Administrator of Region Two, and JEFFREY RABKIN, Individually and as Environmental Analyst, Region Two, Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


The plaintiff East Bay Recycling, Inc. ("East Bay") and the defendants John Cahill, Commissioner of the New York State Department of Environmental Conservation ("DEC") ("Cahill" or the "Commissioner"), Mary Ellen Kris, Regional Director, ("Kris" or "Regional Director"), William R. Adriance, Chief Permit Administrator ("Adriance" or the "Administrator"), Stuart M. Fox, Deputy Chief Administrator ("Fox" or "Deputy Administrator"), and Jeffrey Rabkin, Environmental Analyst ("Rabkin" or "Analyst") (collectively the "Defendants" or the "State"), have filed objections to the Report and Recommendation of Magistrate Douglas F. Eaton (the "Report and Recommendation"), dated February 8, 2002. For the reasons set forth below, the objections are overruled, and the recommendations are hereby adopted.

Prior Proceedings

  The proceedings in this action have proven to be difficult and unhappily marked by delay, both substantive and procedural. The action was commenced on August 17, 2000 by East Bay by the filing of a complaint that alleged due process and equal protection claims arising out of the refusal of the Defendants to approve East Bay's application for a permit to construct and operate a solid waste station in the Bronx, New York.

  The Defendants moved to dismiss, and the motion was referred by the Honorable Deborah A. Batts to Magistrate Eaton, who issued a Report and Recommendation on March 23, 2001. East Bay filed an amended complaint on April 10, 2001, the Defendants moved for summary judgment, and on February 8, 2002, Magistrate Judge Eaton filed the comprehensive 57-page Report and Recommendation at issue here.

  Magistrate Judge Eaton granted summary judgment dismissing the First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh and Fourteenth Claims and the Third Claim to the extent that it alleged a claim based on malicious intent. East Bay's Rule 56(f) motion for a continuance was granted with respect to the Third Claim to the extent it alleged a claim based on a lack of rational basis, the Sixth Claim as the Magistrate Judge construed it, the Twelfth Claim for declaratory judgment, and the Thirteenth Claim for attorneys' fees. The Magistrate Judge further recommended that claims for monetary damages against the Defendants in their official capacities be dismissed for lack of jurisdiction and that summary judgment be granted dismissing claims against the Defendants in their individual capacities.

  Objections to the Report and Recommendation were filed by the State on March 3, 2002 and by East Bay on March 8, 2002. The docket does not contain an entry with respect to a hearing on the objections.

  On July 23, 2004, upon the recusal of Judge Batts, the action was assigned to the Honorable Barbara S. Jones. On August 31, 2004 the action was reassigned to the Honorable Gerard E. Lynch. On October 13, 2004, the action was reassigned to this Court.

  A scheduling order was entered on December 6, 2004, supplemental materials were filed, and the objections were heard and marked fully submitted on February 16, 2005.

  An Overview

  The Magistrate Judge in the Report and Recommendation, familiarity with which is assumed, presented an overview of the issues presented by East Bay's complaint. That overview states, in pertinent part, as follows:
Plaintiff's primary argument (contained in the First and Second Claims) . . . attacks DEC's decision to review (rather than automatically rubber-stamp) the environmental analysis performed by the New York City Department of Sanitation ("DOS").
To outline the context of this argument, I insert here a brief description of the legal provisions governing environmental reviews, and a few key facts. . . . Responsibility for the environmental review of solid waste transfer stations in New York City is shared by DEC and DOS pursuant to a 1992 Stipulation and Order (the "Stipulation"). The Stipulation calls for a "coordinated review," and sets forth a procedure in which each agency sends to the other a "draft" declaration — either "negative" (indicating that there would be no significant environmental impact) or "positive" — concerning specified environmental factors. With respect to Plaintiff's application, DEC sent DOS a draft negative declaration as to certain environmental factors. DOS then conducted a lengthy review (in which DEC failed to participate) concerning other environmental factors, and sent a draft negative declaration ("DOS's East Bay Negative Declaration") to DEC. The Stipulation provides that DEC "may" co-sign such a draft negative declaration. DEC informed Plaintiff that DEC was required to conduct its own review of DOS's environmental findings before it could co-sign DOS's East Bay Negative Declaration. . . . Plaintiff alleges that, for other applicants who have obtained a draft negative declaration from DOS, DEC relies on DOS's analysis and co-signs DOS's negative declaration without any independent DEC review of DOS's analysis. The record shows that this was indeed DEC's practice from 1992 to 1998, with respect to all applicants previous to Plaintiff. However, Defendants assert that, commencing with Plaintiff's application, DEC adopted a practice of independently reviewing DOS's environmental analyses. Defendants provide information as to three instances (subsequent to Plaintiff's application) where DEC, after reviewing DOS's analysis, has required the applicant to provide further information and to make revisions or take other action relating to the application. Defendants also contend (a) that there are misstatements and inconsistencies in Plaintiff's application which provide a rational basis for Defendants' actions, and (b) that there is no evidence of malicious intent.
I conclude that Defendants have established as a matter of law (a) that their decision to review DOS's analysis of Plaintiff's application did not violate Plaintiff's equal protection rights, and (b) that Plaintiff is not entitled to a declaratory judgment that DOS's East Bay Negative Declaration is binding on DEC.
Plaintiff also alleges an equal protection claim with respect to DEC's delay in processing Plaintiff's application and DEC's subsequent insistence (following Plaintiff's eventual demand for a decision and DEC's letter denying the permit) that Plaintiff could not "reactivate" the application review (as DEC's denial letter recommended) but must re-start the entire application process. (Third, Sixth and Seventh Claims). The result has been that DEC has refused to listen to Plaintiff's response to DEC's criticisms and has told Plaintiff to go back to "square one" and start the lengthy application process all over again.
A brief reference to key facts is again necessary to understand the basis for Plaintiff's claim. For over 14 months after DEC received DOS's East Bay Negative Declaration, DEC failed to inform Plaintiff as to the matters about which DEC was concerned (thus withholding from Plaintiff the opportunity to respond to those concerns), despite a specific promise by DEC of prompt action and despite Plaintiff's repeated inquiries (and offers to provide additional information, if required). Plaintiff filed a demand for a decision on its application, and DEC responded in a letter which cited deficiencies in the application and "strongly suggest[ed]" that Plaintiff contact the DEC regional office "to discuss how to reactivate application review with a re-submission of a revised application." Plaintiff, seeking to follow that recommended course, submitted further information and revisions to its original application in response to DEC's expressed concerns. DEC did not deal with the merits of Plaintiff's responses. It did not reactivate Plaintiff's original application, but rather insisted that Plaintiff would have to file an entirely new application and repeat, from the beginning, the expensive and time-consuming application process (including a new environmental review).
Plaintiff alleges that, by these actions, Defendants intentionally treated Plaintiff differently from others similarly situated. Plaintiff further alleges both (a) lack of a rational basis and (b) malicious intent.
February 8, 2002 Report and Recommendation of Magistrate Judge Eaton to Judge Batts, No. 00 Civ. 6147 (DAB)(DFE) ("Report and Recommendation"), at 4-5.

  The Objections Of The Plaintiff Are Overruled

  In its March 4, 2002 written objections to the Report and Recommendation, East Bay raised two objections: First, East Bay argued that the Magistrate Judge erred in his dismissal of the Eighth Claim because of his misunderstanding of the Environmental of Assessment Statement process. Second, East Bay alleged that the Magistrate Judge erred in dismissing the First Claim when he concluded that DEC was not precluded from making its own review and not required to approve the Negative Declaration of the Department of Sanitation ("DOS"). After making these objections, East Bay also sought by Supplemental Affirmation of February 11, ...

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