Entergy Nuclear Indian Point 2, LLC v New York State Dept. of State

[*1] Entergy Nuclear Indian Point 2, LLC v New York State Dept. of State 2013 NY Slip Op 50701(U) Decided on May 6, 2013 Supreme Court, Albany County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2013
Supreme Court, Albany County

Entergy Nuclear Indian Point 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC., Petitioners-, Plaintiffs, For a Judgment Pursuant to Article 78of the Civil Practice Law and Rules

against

The New York State Department of State, CESAR A. PERALES, Secretary of the New York State Department of State, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and JOSEPH MARTENS, Commissioner of the New York State Department of Environmental Conservation, Respondents-, Defendants.



5450-12



For Petitioners/Plaintiffs:

Goodwin Procter LLP

(By: Elise N. Zoli, Esq., Kevin P. Marin, Esq.,

Joseph P. Rockers, Esq., and William M. Jay, Esq.

53 State Street

Boston, Massachusetts 02109

and

Nixon Peabody LLP

(By: Andrew C. Rose, Esq.)

677 Broadway, 10th Floor Albany, New York 12207

For Respondents/Defendants:

Eric T. Schneiderman

Attorney General of the State of New York

By: Lisa M. Burianek, Esq.

The Capitol

Albany, New York 12224-0341

Michael C. Lynch, J.

Petitioners Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3 LLC are the owners of nuclear power generating units operating as part of a nuclear power facility located on the Eastern shore of the Hudson River in Westchester County, New York (hereinafter, "Indian Point").Petitioner Entergy Nuclear Operations, Inc. is the licensed operator of the units.Hereinafter, the Court will refer to these entities as "petitioners".By verified petition/complaint filed on October 1, 2012, petitioners commenced this CPLR Article 78 proceeding to challenge the respondents' determination to designate a portion of the Hudson River adjacent to Indian Point as a "significant coastal fish and wildlife habitat areas" (hereinafter, "Coastal Habitat") pursuant to regulations promulgated by the Secretary of State and set forth at 19 NYCRR Part 602.Respondents answered the petition on or about December 20, 2012.Now, petitioners seek leave to conduct certain pre trial disclosure.In 1987, pursuant to its authority under Article 42 of the Executive Law (Executive Law §910 et. seq.), the Department of State first designated 39 Coastal Habitats on the Hudson River between Albany and Manhattan. At that time, the Coastal Habitats included the area at Hudson River Miles 44-56 and Hudson River Miles 35-41 but did not include Hudson River Miles 41-44. Indian Point is located along that stretch of the Hudson River at miles 41-44.

In May 2011, the Department of State announced its intention to modify thirty-five existing Coastal Habitats and to add seven new Coastal Habitats along the Hudson. On July 19, 2012, the Department of State adopted the proposed Coastal Habitat modifications (Lusic Aff ¶31).As a result, nearly 8,471 acres of the Hudson River, including the previously un-designated stretch of the River adjacent to Indian Point was designated a "Coastal Habitat". The area of the Hudson River relevant to this proceeding is that which covers the stretch of the River from miles 40 to 60. This area is, and will hereinafter be referred to as the "Hudson Highlands" (Wojtowicz Exhibit C, Attachment A).

In this proceeding, petitioners allege, inter alia, that the July 19, 2012 designation was "rulemaking" as defined by the State Administrative Procedure Act (SAPA) and that the respondents failed to comply with the procedures set forth in SAPA when the modifications were adopted.Further, they contend that the Department of State did not provide a proper justification for the modifications in accordance with 19 NYCRR §602.4(f) and that it relied on erroneous and flawed data during its evaluation of the characteristics of the area and applied an overly "generous scoring framework" to the data to arrive at its recommendation (¶ 86). Petitioners also assert a cause of action pursuant to the State Environmental Review Act [*2](SEQRA).

In response to the petition, respondents filed a return pursuant to CPLR 7804(e) and affidavits by Ms. Wojtowicz, a "Coastal Resource Specialist 1" with the New York State Department of State; Ms. Blair, a DEC biologist who serves as Manager of the Hudson River Habitat Protection Program and Hudson River National Estuarine Research Reserve; and Mr. Nieder, a DEC biologist who serves as Leader of the Agency's Steam Electric Unit. These individuals describe the history of the State's coastal resources management and the work that preceded the designation at issue in this proceeding. Now, petitioners seek leave to depose each of these individuals and, as set forth below, seek documents both in general and with specific reference to statements made in the affidavits.

Although petitioners characterize their discovery request as a "limited" one (Rose Affirmation ¶ 5, Memorandum of Law pp 18), in this Court's view it is quite comprehensive. For example, petitioners seek, generally, "all documents concerning" the DEC's creation of the Technical Memorandum and scoring system that were used as the basis for the determination that the designation was warranted; the information shared between the DOS and DEC pursuant to a Data Use Agreement; and draft narratives, scoring or maps, including any "communications or feedback" in response to the drafts (Rose Affirmation Exhibit D, ¶¶5, 23, 9). Further, with specific reference to the affidavits filed by respondents, the petitioners have requested "all documents concerning" each affidavit, relied upon by each affiant, and referenced by each affiant (Id., ¶¶ 2,3,4).In addition, and with specific reference to certain statements by the affiants, petitioners seek, inter alia, "all documents" concerning field visits, communications, meetings, deliberations, collaborations, drafts and consultations attended or shared by and between the DOS and DEC dating back to 2003 (Id., ¶¶1, 6-8, 10-12; 15-22).

In a special proceeding pursuant to CPLR Article 78, this Court may, in its discretion, permit pre-trial disclosure "only where there is a demonstrated need" for discovery (Matter of Lally v Johnson City Cent. Sch. Dist., ___ AD3d ___ , 2013 NY Slip Op 02311 [3d Dept. April 4, 2013].When determining whether disclosure is appropriate, this Court "must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality" (Chaka Mosi Kamau Zulu v. Egan, 1 AD3d 649 [2003]). If the Court finds, after balancing the interests, that disclosure is appropriate, discovery proceeds in accordance with CPLR 3101 (a), "which provides generally that [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action'" (Town of Pleasant Valley v. New York State Bd. of Real Prop. Servs., 253 AD2d 8, 15-16 [1999]).

Here, petitioners argue that the affidavits submitted by the respondents are an attempt to "bolster their defense of [the] process" that is challenged in this proceeding. According to petitioners, because none of the documents sought by their demands were made available during the public comment process or included as part of the administrative record, they "had no chance to review and evaluate the materials and their impact, if any, on this proceeding" (Memorandum of Law p. 18). In petitioners view, the materials are necessary to provide a "more equal playing field on which to prosecute its case" (Id., p. 19).Further, petitioners argue that they should be given an "opportunity to explore and test" the statements made in each of the affidavits (Memorandum of Law p. 20).

In response to petitioners' motion, respondents submit affidavits by Ruth L. Earl, an [*3]employee who serves as the Records Access Officer for the DEC and Christopher Wilcox, Esq., who provides counsel to the Department of State's Records Access Officer.Both review the history of petitioners' counsel's requests for records pursuant to the Freedom of Information Law (Public Officers Law §84 et. seq., hereinafter, "FOIL').For example, petitioners' counsel submitted separate, comprehensive requests for records dated September 27, 2011, October 10, 2011, and October 20, 2011 seeking documents related to each agency's activities with respect to the Coastal Habitat modifications at issue. In response, the DEC and DOS provided 1,770 pages of records responsive to the requests and withheld approximately 200 pages of documents.Mr. Wilcox avers that in addition to the coordinated response, the DOS provided an additional 2,507 pages of records and withheld 120 pages of records in response to the September and October 2011 requests. Thereafter, on July 23, 2011, petitioner's counsel submitted a FOIL request seeking records related to the determination that the proposed Coastal Habitat modifications at issue in this proceeding would not have a significant impact on the environment.In response to this request, Mr. Wilcox avers that he provided 5,778 pages of documents in electronic format and withheld 130 pages of records. On August 8, 2012, petitioner's counsel submitted a fifth FOIL request to the DOS requesting, inter alia, records related to the Department's determination the modification at issue herein was "justified" and a "routine program change" pursuant to the regulations (Exhibit J).In a response, Mr. Wilcox provided 1,904 pages of records and withheld certain documents as exempt confidential records and/or intra agency materials.

In addition to the above, both Ms. Earl and Mr. Wilcox also describe a related FOIL request submitted to each agency in August 2012 seeking records related to Indian Point, the State's Coastal Management Program, and a proposed action at Indian Point, including records pursuant to SEQRA. In response, Ms. Earl avers that the DEC provided records in electronic format; Mr. Wilcox avers that the DOS provided 7,677 pages of records, and, after an appeal, provided an additional 22 pages that had not previously been produced.In sum, according to Mr. Wilcox, approximately 41,942 pages of records ("inclusive of duplication") have been provided to petitioners' counsel and, "there is simply nothing new to produce that is not deliberative or otherwise exempt from disclosure pursuant to FOIL" (Wilcox ¶19).

In this Court's view, petitioners have not established a "demonstrated need" for discovery in this special proceeding. In this special proceeding, the issue before the Court is whether the the respondents' July 19, 2012 determination was arbitrary and capricious or made without a rational basis (Matter of Port of Oswego Auth. v Grannis, 70 AD3d 1101, 1103 [2010]).Similarly, "judicial review of an agency determination under SEQRA is limited to whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination' ***" (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231-232 [2007]). "It is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence" (Id.). The "reasoned elaboration" must be express and manifested by the record before the Court (Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 AD3d 1377, 1378 [2011]).

Considering these standards, petitioners' effort to obtain information that may contradict, [*4]supplement, or bolster the record before the agency, and thus, the return before the Court, may be of interest to petitioners but would serve limited purpose in the resolution of the proceeding before the Court.It is well-settled that " judicial review of an administrative determination is limited to the grounds invoked by the agency' ***and, consistent with this bedrock principle of administrative law' ***, this Court cannot search the record for a rational basis to support the Board's determination, substitute its judgment for that of the [Agency] or affirm the underlying determination upon a ground not invoked by the [Agency] in the first instance" (Matter of Office Bldg. Assoc., LLC v. Empire Zone Designation Bd., 95 AD3d 1402, [2012] [cit. om.]).

It is largely undisputed that petitioners have sought and obtained nearly every record related to Indian Point and the DOS's determination to designate the Hudson Highlands as a "Coastal Habitat" pursuant to the regulations.Petitioners contend that they are now seeking only those documents that were not produced in response to the prior FOIL requests.Although a petitioners' use of FOIL to obtain documents here does not necessarily preclude its ability to obtain discovery in this special proceeding, it may be relevant to this Court's consideration whether, on balance, discovery is warranted (see, e.g Held v State of NY Workers' Compensation Bd., 103 AD3d 1063, 1064 [2013]). For example, if a document is confidential, disclosure may be prejudicial to the agencies without regard to whether it is sought pursuant to FOIL or CPLR 403 (Grossman v. McMahon, 261 AD2d 54, 57-58 [2013]) and further or additional disclosure may burden already limited agency resources (Matter of Protect the Adirondacks! Inc. v Adirondack Park Agency, 38 Misc 3d 1235(A), [2013]).

Here, respondents explain the relatively limited number of records that were withheld from petitioners as exempt pursuant to State statute (Public Officers Law §87 (2) [a]). More specifically, respondents claim that the records were not subject to disclosure because they constituted confidential attorney-client communications (CPLR 4503) and/or identified the location or habitats of rare, threatened or endangered species or ecological communities (Environmental Conservation Law §11-0539(4)).Respondents also determined to withhold documents pursuant to Public Officers' Law 87(2)[g] (exempt inter-agency or intra-agency materials) The purpose of this exemption "is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure (NY Times Co. v. City of New York Fire Dep't, 4 NY3d 477, 488 [2005]).Further, according to respondents, because all of the original materials that were obtained and reviewed in response to the comprehensive FOIL requests have been returned, agency personnel would have to renew their searches in order to respond to the instant demands.

Petitioners did not appeal the FOIL determinations and do not now contend that the records sought herein should have been disclosed in response to the prior FOIL requests.In this Court's view, the respondents' interest in maintaining the confidentiality of the records and in allowing the candid exchange of "opinions, advice and criticism" (Supra) remains valid even though disclosure is now sought pursuant to CPLR 403 (Grossman, Supra). In contrast, the petitioners have failed to demonstrate that the requested disclosure is necessary to resolve the issues raised in this proceeding.Accordingly based on the foregoing, it is

ORDERED AND ADJUDGED that the petitioners' request for leave to conduct discovery pursuant to CPLR 403 is denied.

This represents the Decision and Order/Judgment of this Court. All papers are being [*5]returned to the Attorney General. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.

SO ORDERED!

Dated: Albany, New York

, 2013

______________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

(1.)Notice of Verified Petition/Complaint dated October 1, 2012; Verified Petition and Complaint dated October 1, 2012; Affidavit of Corrine Lusic sworn September 28, 2012, with Exhibits thereto; Affidavit of Patric W. Conroy sworn September 27, 2012, with Exhibits thereto; Affidavit of David Harrison Jr. PhD., sworn September 27, 2012, with Exhibits thereto; Affidavit of Lawrence W. Barnthouse, PhD., sworn September 27, 2012, with Exhibits thereto;

(2)Answer and Return dated December 20, 2012, with Affidavit in Support sworn December 20, 2012 (Stephanie Wojtowicz) and Exhibits thereto; Affidavit in Support sworn December 18, 2012 (Elizabeth A. Blair) and Exhibits thereto; Affidavit in Support sworn December 18, 2012 (William C. Nieder) and Exhibit therto;

(3)Notice of Motion dated February 8, 2013 with Affirmation in Support (Andrew C. Rose, Esq.), Exhibits thereto and Memorandum of Law;

(4)Affidavit sworn February 19, 2013 (Ruth Earl) and Exhibits thereto, Affirmation dated February 21, 2013 (Christopher Wilcox, Esq.) and exhibits thereto, Memorandum of Law;

(5)Reply Memorandum of Law dated March 1, 2013;

(6)Correspondence dated March 21, 2013 and March 28, 2013.