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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of NATURAL RESOURCES DEFENSE COUNCIL INC., et al., Petitioners-Respondents, For Judgment, etc., v. The NEW YORK CITY DEPARTMENT OF SANITATION, et al., Respondents-Appellants.

Decided: February 10, 1998

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI and RUBIN, JJ. Michael B. Gerrard, for petitioners-respondents. Janet L. Zaleon, for respondents-appellants.

Order and judgment (one paper), Supreme Court, New York County (Stuart Cohen, J.), entered June 13, 1997, which, insofar as appealed from, declared that, absent formal rulemaking by respondent Commissioner of Sanitation, respondent Department of Sanitation may not consider construction and demolition debris in meeting the tonnage requirements of the New York City Recycling Law (Local Laws, 1989, No. 19 of City of New York, § 2, Administrative Code of City of N.Y. § 16-301, et seq.), as set forth in Administrative Code § 16-305 and revised by prior court orders (83 N.Y.2d 215, 220, 608 N.Y.S.2d 957, 630 N.E.2d 653, 214 A.D.2d 41, 631 N.Y.S.2d 10), unanimously affirmed, without costs.

Respondents erroneously graft the definition of Department-collected solid waste in Administrative Code § 16-303(n) into the tonnage requirements of Administrative Code § 16-305.   Construction and demolition is a solid waste under the former, but not a recyclable material under the latter, which limits the types of recyclables that may be counted in meeting the tonnage requirements to that contained in solid waste required to be separated by households and city agencies as designated by the Commissioner, and to composted yard waste, Christmas trees, batteries and tires.   Construction and demolition debris has not been designated by the Commissioner under either 16 RCNY 1-08 or 1-09 dealing with household and city agency recycling.   Nor is construction and demolition debris similar to the type of materials subject to the sorting requirements contemplated by 16-305 (see, e.g., 16 RCNY 1-08 [e] [3] ).   As the motion court held, “[c]onstruction and demolition debris is not even remotely like any of [the specifically described] items and, therefore, is not properly included”.


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