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4-C's Development Corporation - Ruling 7, December 10, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the 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 -

4-C'S DEVELOPMENT CORPORATION
241 NORTH PEARL STREET
ALBANY, NY 12201

Ruling on the City's Motions

dated September 4, 1996

DEC Application No.:

4-3824-00045/00001-0

SUMMARY

The Applicant's compliance history is not a substantive and significant issue for adjudication. I will allow Mr. Yavonditte to testify provided the City discloses the information that responds to the Applicant's Disclosure Demand No. 5. I deny the intervening Parties' untimely request for additional discovery about H2S remediation across the State. These rulings provide a schedule for filing appeals.

PROCEEDINGS

The hearing in the captioned matter reconvened at the Leonardo Da Vinci Lodge in Rensselaer on September 5, 1996 with the expectation that Mr. Yavonditte would testify. At the hearing, however, Mr. Sommer, the City of Rensselaer's attorney, handed the Parties and me a letter dated September 4, 1996 which listed eleven motions. The City's motions are identified and discussed below. The Town of East Greenbush (the Town), the Rensselaer County Environmental Management Council (RCEMC) and CAN DO also joined the City in these motions.

After some discussion at the September 5, 1996 hearing , I granted the City's motion to adjourn the hearing to allow the City to supplement its filing (City's Motion No. 7). In addition, I established a schedule to allow the Parties to file responses and replies. Appendix A is a complete list of the documents received from the Parties concerning these motions. Although the City, the Town and RCEMC had an opportunity to file sur-replies by October 24, 1996, the Office of Hearings and Mediation Services received the last set of papers on October 10, 1996.

DISCUSSION

The motion papers primarily address three concerns. First, the intervening Parties asserted there is a substantive and significant issue about the Applicant's compliance history. Second, the Applicant wants Mr. Yavonditte's testimony, and the documents related to the FICA Landfill excluded from the record of this proceeding. Third, the intervening Parties want additional information from the Department Staff about any H2S abatement measures that may have been implemented at other C&D landfills in the State. Finally, there are some motions not related to these three general topics that are also addressed below. For completeness, the following discussion identifies the City's motions by the number presented in the City's September 4, 1996 letter.

  1. The Applicant's Compliance History

    This discussion considers the following motions identified in the City's September 4, 1996 letter: (1) motion for an adjudicatory hearing on issue of past violations by Cristo Demolition and 4C's Development Corporation, (2) motion for disclosure by the Department of the names of all Staff members involved in the investigation of violations of 6 NYCRR Part 360 at the 4C's Landfill, (3) motion to compel the disclosure of reports, memoranda and all documents in the NYSDEC files relative to violations of 6 NYCRR Part 360 at the 4C's landfill, and (10) motion to adjourn the proceeding pending complete disclosure of the facts and circumstances giving rise to the August 1996 Order on Consent.

    CAN DO, the Town and RCEMC also asserted there is an issue for adjudication about the Applicant's compliance history. According to the intervening Parties, the Applicant is a persistent violator who cannot operate the proposed Facility in conformance with the applicable regulatory criteria. To show that the Applicant's compliance history can be an issue for adjudication, the intervening Parties cited the Record of Compliance Enforcement Guidance Memorandum (EGM), No. 11-24, dated August 8, 1991, revised February 1993, as well as administrative decisions, and case law.

    Since there is no admission of any liability in the August 1996 Order on Consent, the Applicant asserted that the Consent Order is a settlement document. The Applicant argued that none of the circumstances identified by the intervening Parties, including the events identified in the Consent Order, support the adjudication of the Applicant's compliance history.

    The Department Staff argued that the Applicant's compliance history should not be an issue for adjudication. The Staff characterized the violations alleged in the August 1996 Consent Order as minor. According to the Staff, the guidance in the EGM limits consideration to violations with civil penalties greater than $25,000 (p. 6 of 11). The Staff added that the activities identified by the intervening Parties did not caused any adverse environmental impacts. The Department Staff also argued that the administrative decisions cited by the City are distinguishable from this case.

    Discussion and Ruling: The Parties do not dispute that the Department may consider an applicant's compliance history to determine whether to issue a permit. All Parties acknowledged that the Record of Compliance EGM establishes the policy that persistent or significant violators of the ECL should not receive new permits or be able to renew existing permits if they violate laws directly related to their ability to carry out regulated activities in a lawful and environmentally responsive manner (p. 1 of 11).

    As explained below, however, I deny the intervening Parties' motion to adjudicate the Applicant's compliance history. In addition, I deny the City's motions that relate to this topic including any requests for additional discovery.

    The intervening Parties contended there have been 6 separate instances when the Applicant allegedly violated the ECL or the applicable regulations. First, there are correspondence dated February 17, 1987 from F. Joseph Stockbridge, P.E., then Senior Sanitary Engineer in DEC Region 4, and April 8, 1992 from George Elston, Environmental Engineering Technician III from DEC Region 4. According to the City these letters are enforcement documents that identify two separate instances when several violations occurred at the Facility during prior operations. The City also argued that the August 28, 1996 Consent Order identifies three additional violations. Finally, CAN DO alleged that the Applicant violated the ECL on at least one other occasion.

    Contrary to the City's assertions, the Staff's correspondence dated February 17, 1987 and April 8, 1992 are not notices of violations, complaints, or consent orders. Rather, the February 17, 1987 letter verifies the Staff's inspection on February 13, 1987. The letter identifies three deficiencies concerning daily cover, the proximity of waste to surface water, and site access. In addition, the letter identifies other requirements that the Applicant needed to do to qualify for the exemption from Part 360.

    The deficiencies described in the Department Staff's February 1987 letter were never the subject of any enforcement action. Moreover, I reasonably infer that the Applicant corrected the deficiencies because the Applicant received a permit from the Department in December 1988.

    Similarly, the Department did not pursue any enforcement action as a result of the inspection documented in Mr. Elston's letter dated April 8, 1992. Rather, Mr. Elston states that the Applicant corrected the problems identified during the inspection before he wrote the April 1992 letter.

    With respect to the August 28, 1996 Order on Consent, the Applicant admitted no liability. On that basis, the guidance outlined in the EGM would exclude the Order on Consent from further consideration. To demonstrate the insignificant nature of the circumstances identified in the August 28, 1996 Order on Consent, the following discussion, nevertheless, assumes that the alleged violations actually occurred.

    According to the Order, the 4C's Development Corporation and Cristo Demolition, Inc. allegedly violated 360-1.5(a) on November 30, 1994 and again on November 30, 1995 by disposing of solid waste at the site of the proposed landfill without a permit. Section 360-1.5(a) prohibits the disposal of solid waste except at authorized facilities.

    The Applicant contended, and the Parties do not dispute, that the Applicant undertook these actions, with notice to the Town and the Department Staff, to preserve the Applicant's rights concerning the continuous use of the Site. Providing the Town and the Department Staff with notice before undertaking the actions that took place on the Site on November 30, 1994 and November 30, 1995 substantially mitigates the significance of these actions for the following reasons.

    First, despite prior notification, the Department Staff did not react unfavorably to these events until this summer. Similarly, neither the City nor the Town included this information in their respective petitions for full party status even though Town officials may have actually seen these events. Moreover, the context in which the Applicant undertook these actions, leads me to conclude that the intervening Parties are inappropriately attempting to link the Applicant's compliance history to the local zoning dispute. Any dispute concerning local zoning is wholly outside the scope of this proceeding, and will not be considered further.

    The Consent Order also states that the 4C's Development Corporation and Cristo Demolition, Inc. allegedly violated 360-11 in June 1996 by storing dumpsters loaded with C&D debris at the site of the proposed landfill. Depending on the circumstances outlined in the regulations, subpart 360-11 requires operators either to register the facility with the Department or to get permits from the Department.

    The Applicant's attorney notified all Parties and me, by letter dated June 20, 1996, that the Applicant had placed dumpsters load with C&D debris at the Site. According to the Applicant, the New Options on Waste (NOW) facility, which was the final destination for the debris, was closed temporarily.

    Although the intervening Parties argued that this activity was a flagrant violation that occurred during the pendency of this permit hearing, the Applicant does not have any control over operations at the NOW facility. Furthermore, the record of this proceeding, as currently developed to date, strongly suggests that no other disposal facility was available. Finally, the storage at the Site was temporary, and ceased when the NOW Facility reopened. Therefore, these circumstances are not significant.

    CAN DO did not substantiate its allegation with any offer of proof. In fact, CAN DO did not even provide any details about the nature of the violation or when it may have occurred. Therefore, this unidentified and unsubstantiated allegation cannot be the basis for an issue about the Applicant's compliance history.

    The Department Staff correctly pointed out that the circumstances discussed above are distinguishable from the administrative decisions cited by the intervening Parties. In Matter of Leo Dickson and Sons, Inc. (Interim Decision of the Commissioner, dated June 29, 1992), the Permittee had received two Notices of Appearance tickets. There was an Order on Consent dated November 1989 that required the Permittee to change operations significantly. The November 1989 Consent Order was changed twice when the Permittee did not meet the compliance schedule outlined in the Order. This persistent lack of compliance resulted in a second Order on Consent dated September 23, 1991. Unlike CAN DO's unsubstantiated allegations, the intervening Parties in Dickson also had made substantive and significant offers of proof concerning additional allegations (Rulings of the ALJ, dated May 20, 1992).

    In Matter of A-1 Recycling and Salvage (Interim Decision of the Commissioner, dated March 19, 1992), the Commissioner affirmed the ALJ's determination to adjudicate the Applicant's compliance history. At the Issues Conference for the A-1 matter, the Staff proposed permit denial based on that Applicant's compliance history.

    In both Matter of Seaboard Contracting and Material, Inc. (Interim Decision of the Commissioner, dated June, 1990) and Matter of CECOS International, Inc. (Interim Decision of the Commissioner, dated February 19, 1988), the Commissioner determined that the Applicants' compliance histories would be issues for adjudication based on a lengthy list of proven violations. In Seaboard, the violations included previous activities by the principals of that corporation. In CECOS, the inquiry included illegal activities by the corporation in other states as well as by the parent company.

    I deny the intervening Parties' proposed motion to include the Applicant's compliance history as an issue for adjudication. This denial specifically applies to the City's motions numbered 1, 2, 3, and 10 as identified in the City's September 4, 1996 letter.

    Citing 624.8(b)(1)(xv) and arguing that I should use the rules of the Courts of the State of New York(22 NYCRR Part 130) as guidance, the Applicant cross-moved for an order assessing financial sanctions against the City. According to the Applicant, the City has made baseless allegations about the Applicant's compliance history. In its response, the City argued that the Applicant's request for sanctions was frivolous. The Town objected to the Applicant's motion for sanctions against the City.

    Discussion and Ruling:

    I deny the Applicant's request for financial sanctions against the City.

    Although 624.8(b)(1)(xv) allows me to take any measures necessary for maintaining order and the efficient conduct of the hearing, assessing financial sanctions against the City will not accomplish that objective. In addition, it would be inappropriate for me to rely on 22 NYCRR Part 130 even as guidance because these rules do not apply, in any way, to this administrative proceeding.

    I note here that this is the second time that the Applicant has requested financial relief. I denied the Applicant's request for reimbursement of legal fees in a ruling dated July 19, 1996.

  2. Exclusion of Mr. Yavonditte's Testimony and the Documents related to the FICA Landfill

    The Applicant seeks to prevent Mr. Yavonditte from testifying because his testimony would compromise the attorney-client relationship that existed between Attorney Moore and Mr. Yavonditte. In addition, the Applicant alleged that Mr. Moore inappropriately communicated with Mr. Yavonditte outside the presence of DEC counsel twice. According to the Applicant these inappropriate communications took place on June 4, 1996.

    If Mr. Yavonditte testifies, the Applicant alternatively argued that it has a right to full disclosure from all Parties. The Applicant contended that the attorney-client relationship between Messrs. Moore and Yavonditte could potentially impact Mr. Yavonditte's testimony in this proceeding. Recognizing this potential impact, the Applicant served a discovery demand on the City on August 5, 1996 in which the Applicant asked the City to:

    Provide a list and description of all communications which have been undertaken between Mr. Yavonditte and representatives of the City and/or CALP and/or its attorneys. Specifically indicate the dates upon which such communications took place, including the location, duration, and subject matter of such communications (Disclosure Demand No. 5).

    The City explained, in a letter dated August 28, 1996, that it would not respond to the Applicant's discovery request because the request was too broad, irrelevant, immaterial and without probative value to any issue in the proceeding. The Applicant argued, however, that it cannot prepare its cross-examination of Mr. Yavonditte without this information.

    The Applicant also objected to Exhibit D which the City attached to its Supplemental Motion. Exhibit D includes the FICA Landfill documents that the Department Staff provided to the City in response to the June 1996 subpoena. The Applicant moved to exclude Exhibit D from the record because the City has not properly offered them.

    The City opposed the Applicant's motions to prevent Mr. Yavonditte from testifying and to exclude the documents in Exhibit D. According to the City, the documents are the written version of Mr. Yavonditte's factual testimony. The City argued that the documents speak for themselves, and that Mr. Yavonditte's appearance is unnecessary. The City contended that the documents are part of the public record and, therefore, should be part of the record of this proceeding.

    The City also contended that Mr. Moore's communications with Mr. Yavonditte on June 4, 1996 were proper. To support its contention, the City attached Opinion #652-8/27/93 (20-93) by the NYS Bar Association, Committee on Professional Ethics.

    The Town argued there is no legal authority to prevent Mr. Yavonditte from testifying in this proceeding. According to the Town, the Applicant has known from the beginning of this proceeding that the City's attorneys were former Assistant Attorneys General, and that only after the City subpoenaed Mr. Yavonditte did the Applicant object to the City's choice of counsel. The Town contended that the Applicant waived its right to object to the City's choice of counsel when the Applicant did not object at the beginning of this hearing.

    The Town asserted that the documents in Exhibit D (The Town attached copies of the same documents to its motion papers as Exhibit A.)are public records, and are, therefore, part of the record of this proceeding as provided by State Administrative Procedures Act (SAPA) 302(1). According to the Town, the Department's disclosure of the documents in response to the June 1996 subpoena, demonstrates their authenticity.

    Discussion and ruling: I have already addressed these concerns. In a ruling dated July 11, 1996, I addressed the Parties' motions about subpoenas for Ward Stone and Joseph Yavonditte. At that time, the Department Staff raised a concern about the disclosure of "secrets" in this proceeding that the City's attorneys learned through a previous attorney-client relationship with Mr. Yavonditte. I ruled that the policy outlined in 1321.5 of the Department's Policies and Procedures Manual would prevent the disclosure of inappropriate information, and preserve any previously established attorney-client relationship.

    In a Memorandum and Ruling dated July 31, 1996, I determined that issues related to any allegedly improper communications with Mr. Yavonditte by the City's attorneys would not be addressed during this hearing. I recommended that the Parties seek a more appropriate forum to resolve this question.

    The Applicant has presented nothing new that causes me to reconsider by prior rulings. Therefore, I deny the Applicant's motion to prevent Mr. Yavonditte from testifying based on a previous attorney-client relationship with the City's attorneys, or that the City's attorneys may have communicated with Mr. Yavonditte without notice to DEC counsel.

    Before turning to the Applicant's alternative request concerning its disclosure demand, I will address the Applicant's objections about Exhibit D. As explained above, the City attached Exhibit D to its Supplemental Motion. The Town also attached copies of the documents to its motion papers as Exhibit A. These documents relate to H2S abatement at the FICA Landfill. At issue is whether, and to what extent, the Commissioner may rely on these documents in making a final decision.

    Section 624.12(b) states that the record of the hearing must include, among other things, the application materials including the DEIS, all notices and affidavits of their publication, motions, the transcript of any testimony taken at the hearing, the exhibits entered into evidence, and the hearing report. SAPA 302(1) expressly identifies these items too. Since the documents in Exhibit D are part of the City's motions, they are, therefore, part of the record of this hearing. This conclusion also applies equally to the documents in the Town's Exhibit A.

    Up to this point, however, I have not received the documents in Exhibit D into evidence. Although the City may offer the documents in Exhibit D as records and documents in the possession of the Department, a state agency [SAPA 306(2)], I am not obliged to receive them unless they are relevant [6 NYCRR 624.9(a)(1)], and then only after the Parties have had an opportunity to make objections on the record [SAPA 306(1)], and to cross-examine the witness through whom the documents are offered [SAPA 306(3)]. SAPA 306(4) and 6 NYCRR 624.9(a)(6) also permit me to take official notice of all facts of which judicial notice could be taken after every Party has had an opportunity to dispute the facts or their materiality.

    In a letter dated September 6, 1996, the City proposed that the Parties stipulate to my receiving into evidence the documents in Exhibit D. Alternatively, the City asked me to take official notice of the documents as provided by 624.9(a)(6). CAN DO, the Town, and RCEMC accepted the City's proposal; however, the Applicant objected. Therefore, before I can receive these documents into evidence, the Applicant, and any other Party to this proceeding, must have an opportunity to raise objections about the documents and to cross-examine Mr. Yavonditte as provided by SAPA and Part 624.

    Findings of fact must be based exclusively on the evidence and on matters officially noticed [SAPA 302(3)]. Consequently, unless I receive the documents in Exhibit D or take official notice of them, they cannot be the basis for any findings of fact.

    I will now turn to the Applicant's alternative request concerning discovery. When a demand for discovery is made, the Party served with the demand may request a protective order within 10 days to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice [624.7(d)(1)]. If a Party does not disclose the requested information without making a timely objection, the proponent of the discovery demand may request an order to compel disclosure [624.7(d)(2)]. This is the situation here.

    The City did not request a protective order within the period prescribed by the regulations. Therefore, the City's attorneys shall disclose the information that is responsive to Disclosure Demand No. 5, as stated in the Applicant's August 5, 1996 letter. This disclosure shall take place within 10 business days from receipt of a copy of this ruling unless an appeal is duly filed with the Commissioner. This directive does not require the City to disclose privileged information.

    In addition, to respond adequately to the Applicant's disclosure demand, the City is not required to create a document. Rather, the City must disclose the information that is responsive to the Applicant's demand and which already exists. For example, this information may be in the form of telephone logs, or documents used to substantiate billable hours. These examples are not meant to be exhaustive of the information and documents that may exist, and that are responsive to the Applicant's demand.

    If the City chooses not to obey my directive, then I will not allow Mr. Yavonditte to testify [624.7(d)(2)]. If Mr. Yavonditte does not testify, then the other Parties will not be able to raise objections about the documents provided in Exhibit D, or cross-examine Mr. Yavonditte as required by SAPA 306(1), and 306(3), respectfully. Consequently, I would not receive into evidence the documents included in the City's Exhibit D (or the Town's Exhibit A). As a result, no findings of fact could be based on the information contained in those documents [SAPA 302(3)].

    Taking official notice is reserved for facts considered true without offering the evidence. Given the circumstances associated with these documents, I deny the City's request to take official notice of them.

  3. Additional Discovery about H2S Abatement

    The City wants an order directing the Department Staff to disclose documents concerning the abatement of H2S emissions from C&D sites across the State. The City also wants the hearing suspended until the Department complies.

    The City's discovery request specifically included all information about: (1) siting C&D debris facilities in residential areas, (2) problems with H2S at such sites, or any other sites at which C&D debris has been disposed, (3) the record of reliability and effectiveness of abatement technology, (4) the precautions that have been proposed and implemented to address H2S emissions, including the exclusion of wall board and other gypsum containing materials from such sites, (5) any communications with the US Environmental Protection Agency concerning problems associated with H2S emissions as well as the effectiveness and timeliness of abatement implementation.

    The City argued that the Commissioner's review of other sites is necessary to decide whether to permit the proposed Facility. According to the City, experiences throughout the State concerning other C&D debris facilities would help the Commissioner evaluate the appropriateness of siting the 4C's Landfill in a residential community. In addition, the information would help develop the conditions under which the Applicant should operate.

    RCEMC and the Town also moved to suspend the hearing for the same reasons. According to the Town, engineers have struggled for three years to abate H2S emissions at the FICA facility using the technologies identified by the Applicant's experts. The Town contended that this information outweighs the Applicant's arguments concerning its ability to abate H2S at the proposed facility if H2S emissions become a problem.

    According the Applicant, any request for additional information about C&D debris landfills throughout the state is a fishing expedition that will further delay this proceeding. The Applicant opposed the City's motion and argued that it should be denied. The Department Staff also opposed the City's motion for additional discovery about H2S abatement for the same reasons.

    Ruling: I deny the intervening Parties' untimely request for additional discovery about H2S abatement. In addition, because the request is overly broad, the discovery demand will further delay this proceeding.

  4. The Remaining Motions
    • City's Motions Nos. 4 and 6

      The City and CAN DO want to reopen Ms. Cristo's testimony. According to these Parties, I improperly prevented them from examining Ms. Cristo about violations of groundwater quality standards. The City asserted that the groundwater quality data in the Response to Comments on the Draft Environmental Impact Statement (DEIS) contradicts information presented in the DEIS. According to the City, these contradictions show that the application materials are inaccurate, and that the Applicant has violated groundwater standards. The City also alleged that these inconsistencies compromise Ms. Cristo's credibility as a witness.

      According to the Applicant, the City's allegations about groundwater violations are without merit. The Applicant explained that the exceedances for iron, magnesium, and sulfate are the result of placing the monitoring wells in the "Normanskill Shale" formation. Because monitoring well MW-1 is up gradient from the Site, the Applicant argued that the data collected from this well shows that the standards are exceeded before the groundwater reaches the other monitoring wells on the Site. The Applicant concluded that this information shows that the 4C's landfill has not had any impact on groundwater quality.

      The Department Staff argued there is no merit to the City's attempt to raise an issue about groundwater. According to the Staff, the monitoring well data are consistent with natural conditions at the Site.

      Discussion and ruling: The City is inappropriately trying to raise a new issue about groundwater impacts from prior operations at the Site. No petition for full party status or amicus status alleged any groundwater quality issues for adjudication. No issues conference participant requested an opportunity to supplement its petition to address this concern further. The Commissioner's Interim Decision did not certified any issue about the quality of the groundwater.

      As provided by 624.5(c), I allowed the City to propose an issue about the Applicant's storm water management plan after the deadline for filing requests for party status (Supplemental Rulings on Issues, dated March 7, 1997). Therefore, the City is aware of the proper procedures. Yet, the City did not attempt to address the criteria outlined in 624.5(c) in its motion papers with respect to this proposed issue. Therefore, I deny the City's Motions Nos. 4 and 6.

      Furthermore, Ms. Cristo's testimony relates exclusively to the economic need and benefits of the proposed Facility. Although on direct examination, Ms. Cristo testified about how the 4C's Development Corporation's would operate the Facility in the future, I later ruled that this line of questioning was irrelevant to the issue of need. I explained that I would disregard that portion of Ms. Cristo's testimony. All Intervenors with full party status had an opportunity to cross-examine Ms. Cristo about the economic need and benefits of the proposed Facility. No further examination is necessary.

    • City's Motion No. 5

      The City moved to disqualify Spectra Environmental Group from submitting a revised storm water management plan. Originally, the City alleged there was a conflict of interest related to the preparation of the plan. Later, the City withdrew its motion to disqualify Spectra.

    • City's Motion No. 7

      The City wants the hearing adjourned to supplement the motion papers filed on September 5, 1996. At September 5, 1996 hearing, I granted this motion.

    • City's Motion No. 8

      The City wants an order compelling the Department Staff to comply with the June 1996 subpoena. At the September 5, 1996 hearing, the City argued that the Staff had not provided all the documents requested by the June 1996 subpoena, such as any referenced documents, like the Health Consultation Report, dated March 1994. Also, some copies of documents, like Document No. 18, were illegible. The City also stated that the Staff did not provide copies of any documents related to the use of alternative grading materials.

      The Staff argued that they provided the City with all relevant documents, other than privileged materials. According to the Staff, the documents related to alternative grading materials were not relevant. Nevertheless, the Staff provided the City with copies of those documents with the Staff's response dated September 25, 1996.

      Ruling: The Department Staff has complied with the June 1996 subpoena by disclosing any remaining documents with the Staff's September 25, 1996 response. The City's subsequent reply dated October 7, 1996 does not allege that the Staff should disclose any more documents concerning the FICA Landfill.

    • City's Motions Nos. 9 and 11

      The City moved to adjourn the adjudicatory proceeding pending determination of these motions. In addition, the City moved to adjourn the adjudicatory hearing pending immediate appeal to the Commissioner from these rulings.

      Ruling: The hearing in the captioned matter has not reconvened during the pendency of these motions. These rulings provide a schedule for filing appeals with the Commissioner. Therefore, the hearing will continue, if necessary, after the Commissioner has reviewed any duly filed appeals.

      Applicant's Request for Copies of the Videotaped Proceedings

      Finally, the Applicant requested a copy of the videotape produced during the hearing on September 5, 1996. According to the Applicant, Gloria Fonda from the City of Rensselaer Improvement Committee (the Improvement Committee) made the videotape. Although a verbatim transcript of the proceeding was taken on that day, the Applicant expressed concern that the videotape includes the off-record discussions. The Applicant objects to any future tapings of the proceedings.

      The Town objected to the Applicant's request for a copy of the videotape from the September 5, 1996 hearing. The Town argued that the Improvement Committee and Ms. Fonda are not parties to this proceeding. According to the Town, the Applicant offered no authority that requires the disclosure of the tape from these non-parties. The Town contended that the transcript of the proceeding will provide a record of the proceeding.

      Discussion and ruling: In addition to the proceedings on September 5, 1996, I understand that other portions of this hearing have been videotaped. During the examination of witnesses, I have directed the operator to turn off the video camera based on 6 NYCRR 624.6(f) which refers to Section 52 of the New York State Civil Rights Law. Nothing suggests that my directive was not carried out on those occasions.

      The Parties have not provided me with any information about how the Improvement Committee is associated with the City of Rensselaer who is a Party to this proceeding. The Committee's name suggests strongly that it is an agency of the Rensselaer City government. However, absent more definitive information about the Committee's association with the City, I will not direct the Committee to hand over a copy of the videotape. Therefore, the Applicant's request is denied.

      Nevertheless, I encourage the Committee and the Applicant to consider the following proposal. The Applicant could provide the Committee with blank tapes on which the Committee could copy the taped proceedings for the Applicant.

APPEALS

Pursuant to 6 NYCRR 624.8(d), the Parties may appeal these rulings. The Commissioner must receive any appeals by January 10, 1997. Appeals shall be double-spaced and not longer than 20 pages. Replies are authorized, and the Commissioner must receive them by January 24, 1997. Replies shall be double-spaced and not longer than 15 pages.

Send one copy of any appeal and reply to the Commissioner, NYS Department of Environmental Conservation, Room 608, 50 Wolf Road, Albany, New York 12233-1010. Also, send one copy of any appeal and reply to everyone named on the Service List. Send three copies of any appeal and reply to the Administrative Law Judge. Participants who use word processing equipment to prepare the brief and reply also must submit a copy of their appeal and reply to the ALJ in electronic form on a 3.5 computer disk (double density, not high density) formatted in either WordPerfect 5.1 or ASCII.

The Parties must distribute appeals and replies to everyone at the same time and in the same manner.

/s/
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
December 10, 1996

To: Service List

Attachment

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