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4-C's Development Corporation - Ruling 11, November 13, 1997


In the Matter of

an Application for permits to operate and construct a
Construction and Demolition Debris (C&D) Landfill pursuant to
Environmental Conservation Law of the State of New York (ECL) Article 27 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 360
in the Town of East Greenbush, Rensselaer County

- by -

ALBANY, NY 12201



No. 4-3824-00045/00001-0

The following ruling addresses motions made by the City and RCEMC to include additional evidence in the record of the adjudicatory hearing. These motions are denied for the following reasons.

By letter dated September 16, 1997, the City asked the Department, pursuant to the Freedom of Information Law (FOIL), to produce all DEC permits issued since June 1996 for C&D debris facilities in DEC Regions 3, 4, 5 and 6. Subsequently, with a cover letter dated September 25, 1997, the City enclosed a copy of a permit issued to Transfer Systems, Inc. in Frankfort, Herkimer County (DEC Permit No. 6-2126-43/4). In a letter dated October 14, 1997, the City stated that the Department had permitted three C&D debris facilities in Region 5 since June 1996.

Arguing that the information relates to the social and economic benefits of the Project (i.e., the need for the Project), the City moved to include it as evidence in the record of the adjudicatory hearing. The other intervening Parties support the City's motion while the Applicant and the Department Staff oppose it.

The question of the social and economic benefits of the Project was identified as an adjudicable issue in February 1996. Subsequently, the adjudicatory hearing convened on several days from May 1996 to May 1997. During the adjudicatory hearing, the City had an opportunity to examine the Applicant's evidence with respect to this issue, and to present its case. In addition, the City provided argument about this issue in closing briefs and replies, which were filed on June 20, 1997 and June 30, 1997, respectively. In its motion, the City does not explain why it waited until September 16, 1997 to make its FOIL request.

The City's motion to include the information obtained through the September 16, 1997 FOIL request in the evidentiary record of the hearing is untimely. Therefore, I deny the City's motion.

This ruling is consistent with the April 7, 1997 Interim Decision in this matter. In affirming my December 10, 1996 ruling, then Deputy Commissioner Frank M. Dunstan denied the City's September 4 and 12, 1996 discovery request for information related to H2S abatement because the adjudicatory hearing concerning H2S abatement had already been completed.

In a letter dated October 2, 1997, RCEMC moved to include page 20 from a report prepared by the Legislative Commission on Solid Waste Management entitled, Where Will the Garbage Go?(July 1997) as evidence in the record of the adjudicatory hearing. The other intervening Parties support RCEMC's request while the Applicant and the Department Staff oppose it.

I deny this request. RCEMC has amicus status in this proceeding and, therefore, does not have the right to present evidence [624.5(e)(2)].

Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
November 13, 1997

To: Service List dated September 11, 1996

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