SUPREME COURT OF THE STATE OF NEW YORK ORANGE COUNTY NINTH JUDICIAL DISTRICT ENVIRONMENTAL CLAIMS PART. In the Matter of PRESERVE HUDSON VALLEY, JOHN ALLEGRO, EMILY CONVERS, and LOUIS M. CERQUA, Petitioners/Plaintiffs, ‘TOWN BOARD OF THE TOWN OF MONROE, TOWN OF MONROE SUPERVISOR HARLEY DOLES, VILLAGE BOARD OF THE VILLAGE OF KIRYAS JOEL, ACTING COMMISSIONER MARC GERSTMAN as ‘Successor 1o JOSEPH MARTENS of the NEW YORK STATE. DEPARTMENT OF ENVIRONMENTAL CONSERVATION, NEW YORK Hon. Francesca E. Connolly STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Index No. 8118/2015 EMANUEL LEONOROVITZ, BASYA SABOY, MENDE FREUER, ELLA RJINo. BREUER, CONG BETH ARYEH, ESTHER STESSEL, 257 MOUNTAINVIEW TRUST/ERWIN LANDAU, DAVID GOLDBERGER, 483 105 CORP., 481 COUN. CORP., PORT ORANGE HOLDINGS, ISIDOR LANDAU, PROVIDER-HAMASPIC OC, JOEL BRACH, HENRY WEINSTOCK, BETH FREUND, JOSEPH STRULOVITCH 1, LLC, LILLIAN STRULOVITCH, PINCUS J. STRULOVITCH, HERBST FAMILY HOLDINGS LLC, HASHGUCHA PRUTIUS LLC, BE & YO REALTY, INC. BENNY WERCBERGER, RACHEL WERCBERGER, ISRAEL WEBER, SIGMOND BRACH, FOREST EDGE CEVELOPMENT, LLC, BRUCHA PROPERTIES LTD., FOREST ROAD, NAFTALI AUSCH, KENT NEIGHBORHOOD, LLC, RAFOEL A. KRAUSZ, ELYAHU POLATESECK, ROSA POLATSECK, MOISHE OPPENHEIM, WOLF WERCBERGER, ZALMEN STERN, RIVKA OPPENHEIM, LIPA OPPENHEIM, YEHUDA. BERGER, SEVEN SPRINGS CORP., MENDEL OPPENHEIM, RAIZEL EVA FREUND, ISAAC GLANZER, JUDY GLANZER, MOSES GOLDBERGER, SIMON GELB, SAMUEL KAHAN, 7 SPRINGS VILLAS LLC, CHAIM LANDAU, JOSEF FRIEDMAN, FRIDA FREIDMAN, SILAH ROSENBERG FAM, LLC, DEBORAH ROSENBERG, ABRAHAM ROSENBERG, ISAAC ROSENBERG, FOREST ROAD CAPITAL, LLC, COMMANDEER REALTY ASSOC. INC., ATKINS BROS INC., DER BLATT, INC,, BAIS YISSROEL CONG, BERSH STERN, ALEX NEUSTADT, CHAIM FRIEDMAN, GOLDY FRIEDMAN, SEVEN SPRINGS RLTY INC, SARA GELB, ERNO, BODEK, RACHEL BODEK, ARTHUR MEISELS, AM SEVEN SPRINGS LLC, JACOBS HICKORY LLC, 282 MOUNTAINVIEW CRIVE, LLC, JOEL REISMAN, PAULA. RESIMAN, VISTA PEARL LLC, KNOITZ ESTATES, JACOB WIEDER, CHAYA WEIDER, MARSHA WAGSCHAL, CONG LANZUT OF 0 C, ELIAZER GLANZER, ESTHER GLANZER, 72 SEVEN SPRINGS RD LLC, 131 ACRES RD LLC, BAKERTOWN ESTATES LLC, 12 BAKERTOWN HOLDING, HARRY ARNSTEIN, ESTHER ARNSTEIN, SHRAGA, GREEBAUM, RELY GREEBAUM, JACOB SCHWARTZ, RENEE SCHWARTZ, YEHOSUA WEINER, DEVORAH WEINER, ALFRED WEINGARTEN, SOLOMON ELLENBOGEN, HANA PERLSTEIN, SIMONKATZ, RAIZY ELLENBOGEN, BUILDING 4 LLC, MORDECHAI GOLDBERGER, MOUNTAINVIEW NY ESTATES, INC., ISRAEL WEZBERGER, VITTELE WERZBERGER, JOSSI LEIG WERZBERGER, NDS PROPERTY MANAGEMENT INC., BENJAMIN GREEN, CHAYA GREEN, CHAIM PARNES, MIRIAN PARNES, TOBIAS SCHREIBER, FEIGE SCHREIBER, MARTIN TERKELTAUB, ZIGMUND KLEIN, ORANGE NY HOMES, INC. VINTAGE APARTMENTS LLC, UPSCALE 4 HOMES CORP., JOSEPH STRULOVITCH I, LLC, AES 11-07 TRUST, BAKERSTOWN REALTY EQUITIES, and JACOB BANDUA TRUST, Respondents/Defendants. STATE RESPONDENT/DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS/PLAINTIFFS’ AMENDED VERIFIED MEREDITH G. LEE-CLARK SUSAN L. TAYLOR Assistant Attorneys General Of Counsel PETITION/COMPLAINT ERIC T. SCHNEIDERMAN Attorney General of the State of New York ‘Attorney for Respondents/Defendants Acting Commissioner Marc Gerstman, as Successor to Joseph Martens,of the New York State Department of Environmental Conservation and New York State Department of Environmental Conservation New York State Office of the Attorney General Environmental Protection Bureau ‘The Capitol Albany, NY 12224-0341 Tel: (518) 776-2401 iiTABLE OF CONTENTS TABLE OF AUTHORITIES STATUTORY BACKGROUND... STATEMENT OF FACTS. Lead Agency Decision.. ARGUMENT 1. _ Petitioners Lack Standing to Challenge DEC’s Lead Agency Decision. IL. Petitioners Challenge to the Lead Agency Decision is Moot 10 IIL. DEC's Lead Agency Decision was Rational and Supported by the Record... CONCLUSION.‘TABLE OF AUTHORITIES CASES Page(s) ‘Ass'n for a Beiter Long Island, Inc., Matter of v. New York State Department of Environmental Conservation, 23 N.Y.3d I (2014)... 8 Bath Petroleum Storage Inc. v. New York State Dep't of Envtl. Conservation, 272 A.D.2d 746 (3d Dep't 2000), Iv. denied 95 N.Y.2d 768 (2000)... 9 Coca-Cola Bottling Co., Matier of v. Board of Estimate, TINY 2d 674 (1988)... ELG Utica Alloys, Ine. v. Department of Envil. Conservation, 116 A.D.3d 1200 (3d Dep’t 2014)... Flacke v. Onondaga Landfill Sys., Inc., 69 N.Y.2d 355 (1987)... Hearst Corp., Matter of v. Clyne, 50 N.Y.2d 707 (1980). Incorporated Vil. of Poquott, Matter of v. Cahill, 11 A.D.3d 536 (2d Dep’t 2004), I. dismissed in part and denied in part 5N.Y.34 819 (2005). - King, Matter of v. County of Saratoga Indus. Dev. Agency, 208 A.D.2d 194 (3d Dep't 1995), Iv. denied 85 N.Y.2d 809 (1995)... Sierra Club, Matter of v. Village of Painted Post, 2015 N.Y. Slip Op. 07452 (2015 STATUTES Environmental Conservation Law (“ECL”) §E.CL. § 8-0109(4) §ECL. §8-0111(6) REGULATIONS Official Compilation of New York State Codes, Rules and Regulations (“N.Y.C.R.R.”) 6NYCRR. § 617.2(0) § 617.28Official Compilation of New York State Codes, Rules and Regulations (“N.Y.C.R.R.”) cont'd ONYCRR. § 617.2(u). § 617.9(a)(1) . iiiPetitioners challenge the determination by the Commissioner of the New York State Department of Environmental Conservation, designating the Village Board of the Village of Kiryas Joel as lead agency for the review of environmental impacts of a proposed 507-acre annexation, pursuant to the State Environmental Quality Review Act. This Court lacks subject ‘matter jurisdiction over this challenge because only “involved agencies” have standing to challenge a lead agency designation, and no petitioner is an “involved agency.” Additionally, prior to any vote on the proposed 507-acre annexation, the Town Board of the Town of Monroe disapproved the annexation petition, which ended all consideration of that proposed 507-nere annexation; thus, petitioners’ challenge to the lead agency decision is moot. Even if petitioners’ challenge were justiciable, the Commissioner thoroughly and rationally applied the facts to the statutory factors for designating a lead agency and concluded that the Village Board of the Village of Kiryas Joe] was the proper lead agency to conduct the environmental review. ‘Accordingly, petitioners’ challenge to DEC’s determination must be dismissed for this reason, too. STATUTORY BACKGROUND Under the State Environmental Quality Review Act (SEQRA), a state or local agency ‘must determine whether an action itis funding, approving or directly undertaking might have at least one significant adverse environmental impact. See E.C.L. § 8-0109(4); 6N.Y.C.RR. §§ 617.2), 617.7. In carrying out this obligation, this “lead agency” must identify relevant areas of environmental concern, take a “hard look” at them, and make a reasoned elaboration of the basis of its determination, 6N.Y.CRR. § 617.7(b).. Where more than one agency is responsible for decisions related to an overall action, calling for coordinated review, the lead agency is an “involved agency,” making the significance 1determination and overseeing the coordinated development and review of any required impact, statement. See 6 N.Y.C.R.R. §§ 617.2(s), (u); 617.6(b); 617.7(a); 617.9(a) (1). An “involved agency” is one that has jurisdiction to fund, approve or directly undertake an action. 6 NLY.CRR. § 617.2(3). The lead agency is “the governmental entity ‘principally responsible for carrying out, funding or approving’ the proposed action” and the “agency that must initially determine whether a proposed action may have a significant effect on the environment.” Matfer of Coca-Cola Bottling Co. v. Board of Estimate, 72.N.Y.24 674, 680 (1988), quoting E.C.L. § 8- 011106); 6NY.CRR. §§ 617.2(u), (v). The lead agency is also responsible for making key ‘SEQRA determinations during the review process including whether to require the preparation of an EIS for the action. If the involved agencies cannot agree as to which of them should serve as the lead agency, any involved agency or the applicant can ask the DEC Commissioner to resolve the dispute. See E.C.L. § 8-0111(6), as implemented by 6N.Y.C.R.R. § 617.6(0)(5)(). After confirming the jurisdiction of the involved agencies, the Commissioner looks to three criteria, set forth in order of importance: a. _ whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance . .. b. which agency has the broadest governmental powers for investigation of the impact(s) of the proposed action; and ¢. which agency has the greatest capability for proving the most thorough environmental assessment of the proposed action. 6NY.CRR. § 617.6(b)(5)(v). These are the sole factors upon which the Commissioner may base his or her lead agency decision. See Affirmation of Lawrence Weintraub (Weintraub Aff), at q 11.STATEMENT OF FACTS In December 2013, the Town Board of the Town of Monroe (Town Board) received a landowner-initiated petition to annex approximately 507 acres of land from the Town of Monroe to the Village of Kiryas Joel (507 Petition).' See Weintraub Aff. 13. Around the same time, the Board of ‘Trustees of the Village of Kiryas Joel (Village Board) notified the Town Board of its intent to serve as lead agency for the anticipated SEQRA review of the 507 Petition. See id. In January 2014, the Town Board passed a resolution calling for the Town Board to serve as “joint lead agency” with the Village Board. R543-544. Soon after, the Monroe-Woodbury Central School District (School District) requested, pursuant to DEC’s SEQRA regulations, that the DEC Commissioner designate the School District as lead agency for the environmental review of the proposed annexation. See RS47-579. In February 2014, the Village Board asked the DEC Commissioner to designate the Village Board as lead agency. See R460-542, Simultaneously, the landowners sponsoring the 507 Petition asked the DEC Commissioner to designate the Village Board as lead agency. See R453-459. Also in February 2014, the Town Board requested that the DEC Commissioner designate the Town Board as lead agency for the 507 Petition. See R445-448. 1 The Commissioner's lead agency decision explains that “{t]he 507 acre total, which was provided in the Full Environmental Assessment Form, Part 1, does not equal the 510 acres identified in the original lead agency dispute correspondence.” R2, n 1. ‘The Village’s subsequent SEQRA findings all refer to this proposed annexation as the 507- acre petition and there is no dispute that these findings arose out of the Commissioner’s January 28, 2015 lead agency decision. 3In March 2014, DEC sought additional information to facilitate the Commissioner's lead agency determination. See Weintraub Aff. 4 23; R415-416. Both the Town Board and the Village Board provided additional information, including each municipal body’s comprehensive plan. See R112-409. Between January and April 2014, the Department received several letters regarding the lead agency dispute from nearby municipalities, legislators, and citizens, including several requests that DEC designate either itself or Orange County as lead agency. See Weintraub Aff. $9 24-26; R37. Lead Agency Decision On January 28, 2015, the Commissioner issued his decision, designating the Village Board as lead agency. As an initial matter, the Commissioner noted that the requests to designate DEC, the School District, or Orange County as lead agency had to be denied because none fit the definition of an “involved agency” under the SEQRA regulations, therefore disqualifying all three from possible lead agency status. The Commissioner likewise rejected requests that he deny lead agency to both the Town Board and the Village Board because of alleged past motivations of each body. The Commissioner explained that, “[iJn past lead agency disputes involving annexations, the Commissioner has indicated that a municipality's possible motivation is not relevant to resolution of the dispute.” R3, citing Commissioner's lead agency decision in Town Board of the Town of North Greenbush v. Common Council of the City of Rensselaer (9-25-08), Weintraub Aff. Exh, 1; Commissioner's lead agency decision in Town of Queensbury v. City of Glens Falls (04-14-97), Weintraub Aff., Exh. 2. The Commissioner further concluded that, as the lead agency is usually the body that undertakes the direct action, the two candidates for lead agency in the proposed annexation were the Town Board and the Village Board. See R3; see also E.C.L. § 8-0111(6), 6N.Y.CRR. § 617.2(u). 4‘The Commissioner then analyzed the lead agency dispute within the context of the three lead agency criteria listed in the SEQRA regulations: (1) the geographic scope of the anticipated impacts of the action being considered, (2) which involved agency has the broadest powers to investigate environmental impacts, and (3) which involved agency can conduct the most thorough environmental review. See R3-7; 6 N.Y.CR.R. § 617.6(b(5)(v). The Commissioner determined that the first factor favored neither municipal body because the impacts of the proposed annexation “are primarily local,” though the Commissioner noted that the Village’s “comprehensive plan would, if followed, result in a more environmentally sustainable plan for development.” R4. ‘The Commissioner further concluded that the second factor favored the Village Board, as “the Village has an incrementally greater breath [sic] of authority as the provider of water and sewer services and will continue to have a role in land use decisions [alffecting properties that are the subject of the annexation petition,” regardless of whether the annexation is ultimately approved. R6, Finally, as both municipal bodies have the ability to hire experienced consultants to assist with an environmental review, the Commissioner determined that the third criterion favored neither body. See R7. ‘After reviewing the three lead agency criteria, the Commissioner concluded that the Village Board should be designated lead agency because it “has the broadest governmental powers for investigation of the impacts of the proposed actions whether annexation occurs or not.” Jd. In particular, the Commissioner noted that the Village Board’s Comprehensive Plan included planning for continued water and sewer services in light of planned development, while the Town Board’s Comprehensive Plan did not anticipate any significant expansion of municipal services. Id. However, the Commissioner noted that the lead agency designation “does not change or diminish the jurisdiction of the Town Board in its role as an involved agency.” Id. 5Rather, the Village Board must consider the impacts that the Town Board identifies and should incorporate those substantive issues that other interested parties identify during the environmental review process. See id; see also Weintraub Aff. 4 30. The Commissioner further noted that, in its correspondence with DEC, the Village Board had committed “to implement an ‘enhanced’ and transparent coordinated review,” including steps beyond the requirements in SEQRA: “conducting a public scoping session, the establishment of a publicly accessible internet website to make documents available electronically and the intention to conduct a public SEQR{A] hearing on a Draft Generic Environmental Impact Statement.” R7. Accordingly, the Commissioner designated the Village Board as lead agency, encouraging active participation from all interested parties, and urging the Village Board to facilitate such participation. See R8 ‘The Commissioner was not asked for, and did not make, any lead agency decision regarding the 164-acre annexation petition, On March 10, 2015, persons opposed to the 507 Petition commenced a C.P-L.R. article 78 proceeding, secking nullification of DEC’s lead agency decision and an order requiring DEC to act as lead agency in the environmental review of the proposed annexation. See Verified Pet., Matter of Preserve Hudson Valley, Inc, etal. v. New York State Department of Environmental Conservation, et al., Index No. 2015-001707. The Department moved to dismiss that proceeding on the grounds that the petitioners’ challenge was not ripe for review. This Court has not yet issued a judgment on this proceeding. Subsequently, after the Village Board conducted a coordinated environmental review under SEQRA, the Village Board consented to and approved the 507 Petition. See Pet, Exh, D. The Town Board issued its Involved Agency Findings Statement on September 8, 2015, which concluded, among other things, that “the 507.4-acre annexation cannot be approved as one which minimizes or avoids adverse environmental effects 6to the maximum extent practicable.” Jd., Exh. A, at 11. Thereafter, the Town Board refused its consent to and disapproved the 507 Petition as “not in the over-all public interest.” Jd., Exh. B, at 21-22. Accordingly, the special election scheduled for November 9, 2015 only addressed the proposed 164-acre annexation. See Pets,” Brf. re: Order to Show Cause (dated 10-29-15), at 12. On October 5, 2015, petitioners commenced this hybrid action/proceeding challenging, insofar as it relates to DEC, the Department's lead agency determination regarding the 507 Petition. On October 30, 2015, petitioners sought, via an Order to Show Cause, a preliminary injunction staying the special election, See Order to Show Cause (10-30-15). The Department submitted a letter, taking no position on the request for injunctive relief but disputing petitioners’ claims as to their likelihood of success on their challenge to the Commissioner's lead agency decision. Thereafter, this Court denied petitioners’ motion for preliminary relief as to the special election, but stayed the effect of the election pending the outcome of this proceeding. See Dec. & Order (11-05-15), at 7. The Court further denied petitioners’ request for a stay pending the resolution of proceedings in the Appellate Division relating to the 507 Petition. See id. at 8. ARGUMENT L Petitioners Lack Standing to Challenge DEC’s Lead Agency Decision. “A challenge [to the lead agency decision] may only be commenced by another involved’ agency.” Mauter of King v, County of Saratoga Indus. Dev. Agency, 208 A.D.24 194, 201 (3d Dep’t 1995), Iv, denied 85 N.Y.2d 809 (1995); see also Matter of Incorporated Vil. of Poquott v. Cahill, 11 A.D.3d $36, 539 (2d Dep't 2004), 1v. dismissed in part and denied in part 5 N.Y.3d 819 (2005) (because Village was not an involved agency, it “was not entitled to notice that a lead agency was to be established, or to participate in or fo challenge LIPA's selection as ead agency”) (emphasis added).To establish standing, a petitioner must show both an injury-in- 7fact and an injury within the zone of interests sought to be protected by the statute alleged to have been violated. See Matter of Ass'n for a Better Long Island, Ine. v. New York State Department of Environmental Conservation, 23 N.Y.3d 1, 6 (2014). This harm cannot be purely speculative but must be direct and concrete, an injury that is in some way “different in kind or degree from the public at large.” Matter of Sierra Club v. Village of Painted Post, 2015 N.Y. Slip Op. 07452, *4 (2015), citing Matter of Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 778 (1991). Here, none of petitioners is even an agency or municipality, let alone an involved agency. None of petitioners sought lead agency status, and any injury-in-fact that petitioners claim arises out of the Department's determination does not differ in kind or degree from any injury suffered by the public at large, which is a requirement for challenging state action under SEQRA. See Matter of Sierra Club, 2015 N.Y. Slip Op. 07452, *4; Matter of Incorporated Village of Poquott, 11 A.D.3d at 539. Accordingly, petitioners lack standing to challenge the Department's lead agency decision, I Petitioners Challenge to the Lead Agency Decision is Moot. Even if petitioners had standing, the Town Board denied its consent to and disapproved the 507 Petition; thus, the proposed annexation has been effectively halted and any challenge to the Commissioner's lead agency decision regarding environmental review of that Petition is now moot. As no genuine dispute exists between petitioners and the Department, and any ruling by the Court would constitute an advisory opinion, the Court should dismiss petitioners’ fourth cause of action in its entirety. Courts may rule on “the rights of persons which are actually controverted in a particular case pending before the tribunal.” Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713-114 8(1980); see also Bath Petroleum Storage Inc. v. New York State Dep't of Envtl. Conservation, 272 A.D.2d 746 (3d Dep't 2000), iv. denied 95 N.Y.2d 768 (2000) (where DEC modified a permit, which later expired and an application to renew was denied and petitioners already sought judicial review of the denial, the proceeding was deemed moot). Here, once the Town Board refused consent for and disapproved the 507 Petition, the SEQRA process ended and any questions about the environmental effects of the proposed annexation became hypothetical and ‘academic. Thus, any preliminary decisions, including the Department's lead agency decision, have no effect and inflict no injury. Furthermore, none of the exceptions to mootness — (1) the likelihood of repetition, (2) an action that typically evades review, or (3) a case presenting substantial and novel issues not previously passed on —applies in this case. See Matter of Hearst Corp., 50 N.Y.2d at 714-715. ‘The Town Board has disapproved the 507 Petition, a decision that is not being challenged in this litigation. Thus, all review of that petition has ended and, if the proponents of the 507 Petition were to resubmit that proposal, the SEQRA process ~ including the selection of a lead agency ~ would begin anew. Challenges to the lead agency decision here would not evade review because DEC’s lead agency decision could be challenged if the Village Board were to revise its environmental review of the 507 Petition and both the Village Board and the Town Board approved it. Finally, the Department routinely makes lead agency decisions such as the one challenged here, and there is nothing unusual or unique about this lead agency decision. Because the 507 Petition has been disapproved and none of the exceptions to mootness applies, the Court should dismiss petitioners’ fourth cause of action in its entirety.Til. DEC's Lead Ageney Decision was Rational and Supported by the Record. Even if petitioners’ claims against the Department were justiciable, the Court should nonetheless dismiss them because the Administrative Return amply demonstrates that the lead agency decision was rational. Judicial review of administrative actions is limited to determining, whether the challenged determination is rational, or arbitrary and capricious. See Flacke v. Onondaga Landfill Sys., Inc., 69 N.Y.2d 355, 363 (1987). “Moreover, where, as here, the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference.” Id. An agency is also entitled to deference when interpreting its own regulations. See Matter of ELG Utica Alloys, Inc. v. Department of Envtl, Conservation, 116 A.D.3d 1200, 1202 (34 Dep't 2014). Here, the Department's lead agency decision and the accompanying administrative return demonstrate that DEC thoroughly reviewed the facts surrounding the 507 Petition, considered the large volume of public comments, and examined the capabilities of the only two involved agencies within the meaning of SEQRA ~ the Village Board and the Town Board — within the regulatory framework of 6 N.Y.C.R.R. § 617.6(b)(5)(v). DEC determined that the first and third regulatory criteria did not favor either the Village Board or the Town Board; thus, the second criterion would be determinative. After considering each municipality’s Comprehensive Plan, the Commissioner concluded that the second criterion —“which agency has the broadest governmental powers for investigation of the impacts) of the proposed action” — favored the Village Board as lead agency. The decision noted that, regardless the outcome of the annexation petitions, the Village Board is and would continue to provide critical water and possibly sewer service to some of the parcels at the heart of the 507 Petition; as a result, the Village Board 10‘would have a significant role in land use decisions by the Town under any scenario. See R5-6. This conclusion was consistent with the Commissioner's previous lead agency decisions and is supported by the documents submitted by the Town, the Village, and other interested members of the public. There is no merit to petitioners’ allegations that the Department's lead agency decision was arbitrary and capricious. CONCLUSION Because petitioners are not involved agencies within the meaning of 6 N.Y.C.RR. § 617.2(3) and the Town Board’s disapproval mooted the 507 Petition, petitioners’ fourth cause of action is not justiciable and should be dismissed. Altematively, because the Commissioner's lead agency decision was rational and based upon the administrative record, the Court should confirm the decision and dismiss the proceeding in its entirety as against the Department. Dated: January 12, 2016 ‘Albany, New York ERIC T. SCHNEIDERMAN ‘Attorney General of the State of New York By: | MEREDITH G. ‘LEE-CLARK SUSAN L. TAYLOR Assistant Attorneys General Attorneys for the State Respondents ‘New York State Department of Law Environmental Protection Bureau The Capitol Albany, New York 12224-0341 ‘Tel: (518) 776-2401 Fax: (518) 650-9364 Meredith. Lee-Clark@ag.ny.gov MEREDITH G. LEE-CLARK SUSAN L. TAYLOR Assistant Attorneys General ul