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4-C's Development Corporation - Ruling 9, February 27, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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 -

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

RULING: City's Motion to Admit FICA Documents into Evidence, etc.

DEC Application No.:

4-3824-00045/00001-0

SUMMARY

These Rulings deny the City's motion for a ruling that the Commissioner and I will not base any findings of fact on the application documents not received into evidence. The uncontested application documents constitute a prima facie showing that the proposal, as conditioned by the draft permit, would meet all regulatory criteria. In addition, the City's request to admit the "FICA documents" into evidence pursuant to CPLR Rule 4518 is denied. The City's reliance on the CPLR is misplaced. To be admitted into evidence, the FICA documents must be relevant as required by 624.9(a)(1), and their relevancy has not yet been determined.

To maintain order and to promote the efficient conduct of this proceeding, I will summon and examine Mr. Yavonditte as provided by 624.8(b)(1)(vi). The Parties will have an opportunity to cross-examine Mr. Yavonditte. Mr. Yavonditte's examination will be conducted in a manner consistent with the Department's Policies and Procedures Manual Part 1321. The Rulings provide a schedule for filing appeals.

PROCEEDINGS

With a cover letter dated January 31, 1997, the City of Rensselaer (the City) filed motions, and asked me to: (1) admit the "FICA documents" into the evidentiary record of the hearing in the captioned matter, and (2) issue a determination that would preclude the Commissioner and me from basing any findings of fact on the application documents that have not been received into evidence.

In a memorandum dated February 4, 1997, I notified the Parties that responses were due by February 10, 1997. CAN DO, RCEMC, the Town , the Applicant and the Department Staff duly filed responses. By letter dated February 10, 1997, the City filed a short reply.

DISCUSSION

The City has requested the following relief. First, the City wants me to receive the "FICA documents" into evidence as business records maintained by the Department pursuant to CPLR 2307 and Rule 4518. Second, the City wants a determination that the Commissioner and I will not rely on the application materials, which include the Draft Environmental Impact Statement, as the basis for any findings of fact because these application documents have not been received into evidence.

For the purposes of discussion here, I address the City's second motion concerning the application documents first. Attached to this Ruling as Appendix A is a list of application documents. They include various technical and engineering reports, as well as the Draft Environmental Impact Statement and appendices. The application documents in Appendix A of this Ruling correspond to the list provided in Exhibit B to the City's motion. Also attached to this Ruling is Appendix B which is a list of the "FICA documents." The City originally attached copies of these documents as Exhibit D, with a cover letter dated September 26, 1996, the Town attached Exhibit A to its motion papers. The documents in the Town's Exhibit A are the same as the ones in the City's Exhibit D. to its Supplemental Motion dated September 12, 1996.

CAN DO, RCEMC, and the Town support the City's motions. The intervening Parties generally adopted the arguments presented by the City, and emphasized the importance of including the FICA documents as evidence in this proceeding to balance and complete the record. The Department Staff and the Applicant oppose the City's motions.

I. The Application Documents

As part of its application, the Applicant prepared various technical and engineering reports, and a DEIS that includes several appendices. Appendix A is a list of the application documents. During the hearing, the Applicant did not ask me to mark the application documents for identification, or to receive them into evidence.

Based on the analysis in the December 10, 1996 Ruling (pp. 8 - 9) concerning my interpretation of the State Administrative Procedure Act (SAPA) 302(3), the City argued that no findings of fact can be based on the application documents because they have not been received into evidence. Since the application documents are not in evidence, the City wants a determination that the Commissioner and I will not base any findings of fact on them.

The City asserted that the documents lack any intrinsic probative value because private consultants prepared the application documents for the Applicant. By not moving them into evidence, the City argued that the Applicant made a conscious decision not to rely on the application documents as part of its case in this proceeding.

According to the Department Staff, the application documents are part of the record, and the adequacy of these documents is being considered in this hearing. The Staff argued that the City's objections about the application documents at this point in the proceeding are untimely, and asserted that the City is precluded from raising any objections about them now.

The Applicant argued that the application documents are part of the record of the proceeding as provided by 624.12(b). In addition, the Applicant pointed out that the Department Staff has made a completeness determination about the sufficiency of the application documents.

The Applicant also argued that the scope of the hearing is limited to the issues identified for adjudication. The Applicant concluded that all the application documents do not need to be admitted into evidence since the adjudicable issues relevant to this proceeding relate to a very small portion of them. The Applicant also added that it is not significant that the co nsultants who prepared the application documents were not the Applicant's expert witnesses at the hearing.

Discussion and Ruling: There is no dispute that the application documents identified in Appendix A are part of the record of this proceeding as provided by 6 NYCRR 624.12(b). The City stated so in its reply letter dated February 10, 1997.

Contrary to the City's argument, however, the application documents are a prima facie showing that a proposal, as conditioned by a draft permit, would meet all regulatory criteria [In the Matter of Monroe County (Mill Seat Solid Waste Landfill), Interim Decision of the Commissioner, July 2, 1991]. As a result, the scope of any adjudicatory hearing is limited to the resolution of only contested issues. If the Department Staff or other Parties to the proceeding do not affirmatively raise substantive and significant issues about the application materials, including the DEIS where applicable, there are no factual disputes, and therefore, no basis for a formal adjudication about the contents of the remaining undisputed application materials. With respect to the uncontested application materials, the review and acceptance of the information contained in them by the Department Staff is comparable to that given to uncontroverted applications which are not subject to hearing [In the Matter of Wilmorite, Inc., Interim Decision of the Commissioner, October 7, 1981].

Three substantive and significant issues have been identified for adjudication with respect to the captioned application. They are: (1) the potential impacts from H2S, (2) stormwater management, and (3) the social and economic benefits of the Facility. Therefore, the information in the application documents which is not related to these substantive and significant issues is prima facie evidence that the Applicant's proposal, as conditioned by the draft permit, would meet all applicable regulatory criteria.

Therefore, the City's request for a ruling that the Commissioner and I will not base any findings of fact on the application documents that have not been received into evidence is denied. With respect to the uncontested application materials, the Commissioner may accept the factual information contained therein as true, and rely on that information when making the final determination on this application. With respect to the contested application materials which are associated with the substantive and significant issues for adjudication, the Commissioner's determination of these issues must consider the record as a whole, and must be supported by a preponderance of the evidence.

II. The FICA Documents and Mr. Yavonditte's Appearance

The FICA Landfill is a former solid waste management facility located in Dutchess County. The Department began to monitor the FICA Landfill in the late 1980's after a fire broke out at the site. Chemical analyses of the water used to extinguish the fire showed that hazardous materials were disposed of at the FICA Landfill. As a result, the Department listed the facility as an inactive hazardous waste site, and has monitored the Landfill ever since.

In June 1996, the City served Joseph Yavonditte, P.E., Environmental Engineer II, from the Department's Division of Hazardous Waste Remediation, with a subpoena duces tecum which required him to appear at the hearing and produce documents in the Department's control concerning the H2S abatement program at the FICA Landfill. Consistent with my Ruling dated July 11, 1996, the Department Staff provided the Parties with copies of the documents with a cover letter dated August 27, 1996. Later, with a cover letter dated September 25, 1996, the Department Staff also provided additional documents about the FICA Landfill to the Parties.

To its Supplemental Motion dated September 12, 1996, the City attached copies of the FICA documents as Exhibit D which are now listed in Appendix B of this Ruling. Within the context of the September 1996 motion, the City argued that the FICA documents are the written version of Mr. Yavonditte's factual testimony which obviated the need for his appearance at the hearing. In response, the Applicant cross-moved to exclude these documents from the record because the City had not laid a proper foundation for these documents to be included in the record.

In a Ruling dated December 10, 1996, I concluded that the FICA documents in the City's Exhibit D are part of the record of this proceeding pursuant to 624.12(b) and SAPA 302(1). In addition, I determined that the documents could not be the basis for any findings of fact because I had not yet received them into evidence [SAPA 302(3)]. I ruled that I would not receive the FICA documents into evidence until the other Parties had an opportunity to make objections on the record [SAPA 306(1)], and to cross-examine the witness through whom the documents were offered [SAPA 306(3)]. I also decided not to take official notice of the FICA documents.

The City, and other intervening Parties, now argue that the FICA documents are admissible as evidence in this adjudicatory proceeding because they are the Department's business records as that term is defined in CPLR 2307 and Rule 4518. According to the City, Mr. Keehn's cover letter dated August 27, 1996 certifies that the documents are responsive to the June 1996 subpoena, and that the documents are authentic [CPLR Rule 4518]. The City argued further that the documents are prima facie evidence of the facts contained therein [CPLR Rule 4518(e)]. The City also asserted that the July 11, 1996 Ruling determined that the documents were relevant to this proceeding. Consequently, the City also wants me to receive the documents into evidence pursuant to624.9(a)(1).

Furthermore, the City argued that I had incorrectly interpreted SAPA when I concluded that the FICA documents must be introduced into evidence through Mr. Yavonditte. To support that argument, the City cited Gray v. Adduci, 73 NY2d 741 (1988) 2 This is the first time that the City, or any other Party to this proceeding, referred to Gray v. Adduci, supra. The City's appeals from the December 10, 1996 Rulings dated January 31, 1997 do not refer to this case from the Court of Appeals. , and argued that the Court of Appeals held that no statutory or constitutional right of cross-examination is violated by admitting State agency documents into evidence without the testimony of the State official who maintains or creates the documents. The City further contended that the Applicant may subpoena Mr. Yavonditte if the Applicant feels that his testimony is necessary.

According to the Department Staff, the August 27, 1996 cover letter is not the authentication required by CPLR 2307. Mr. Keehn stated that the Staff uses a specific certification when the Staff elects to invoke this provision. If the FICA documents are admitted into evidence, the Staff argued that Mr. Yavonditte's testimony would still be necessary to address the question of what weight should be assigned to them.

According to the Applicant, CPLR 2307 and Rule 4518 pertain to the authenticity of documents. The Applicant asserted, however, that the real issue of admissibility is whether the FICA documents are relevant. The Applicant argued that the appropriate rules to consider here are 6 NYCRR 624.9(a)(1) and (2), rather than the CPLR.

To be admitted into the evidentiary record, the Applicant contended that the FICA documents must be relevant [624.9(a)(1)], and that even if they are relevant, they may be excluded if there is a potential for unfair prejudice and confusion of the issues [624.9(a)(2)]. The Applicant asserted that the intent of 624.9(a)(2) cannot be satisfied without testimony from Mr. Yavonditte who would explain the content and context of the FICA documents. Therefore, if the City wants the FICA documents in the evidentiary record, the Applicant argued that the City must call Mr. Yavonditte as a witness. If the City chooses not to call Mr. Yavonditte, then the Applicant contended that I should not receive the FICA documents into evidence because the City has not shown why the documents are relevant.

Discussion and Ruling: Based on the December 10, 1996 Ruling, the FICA documents are part of the record of this proceeding as provided by 624.12(b). The Parties have not appealed this determination. Unlike the application documents which constitute a prima facie showing [Monroe County, supra.], the FICA documents are an offer of proof by the City which are intended to refute the Applicant's presentation about abating H2S if the proposed Landfill generates significant amounts of hydrogen sulfide.

Since abating H2S is a substantive and significant issue for adjudication, the Commissioner's determination of this issue must consider the record as a whole, and must be supported by a preponderance of the evidence. Therefore, it is understandable why the City and the other intervening Parties want the FICA documents received in evidence.

However, the City's reliance on CPLR 2307 and Rule 4518 as the basis for admitting the FICA documents into the evidentiary record of this proceeding is misplaced. The Civil Practice Law and Rules (CPLR) govern the procedures in civil judicial proceedings in New York State courts [CPLR 101]. The CPLR does not apply to administrative proceedings because they are not "civil judicial proceedings" within the meaning of CPLR 101 [United States Power Squadrons v. State Human Rights Appeal Bd., 84 AD2d 318, 445 NYS2d 565 (2d Dept. 1981), aff'd. 59 NY2d 401, 465 NYS2d 871 (1983)]. Therefore, I deny the City's request to admit the FICA documents into evidence pursuant to CPLR Rule 4518.

The ruling in Gray v. Adduci, supra. may permit me to receive the FICA documents into evidence without denying the other Parties' rights provided in SAPA and the NYS Constitution 3 In the dissenting opinion, Judge Kay with then Chief Judge Wachtler and Judge Hancock, Jr. agreed with the Appellate Division's finding that the petitioner in Gray (supra., p. 744) "suffered a serious loss" by not being able to cross-examine the arresting officer who had prepared the police report.. The Court's determination, however, does not require me to receive the FICA documents into evidence without providing the other Parties with an opportunity to cross-examine the State official who maintains them.

The City does acknowledge that the FICA documents need to be relevant as required by 624.9.(a)(1). Nevertheless, the City has misinterpreted the July 11, 1996 Ruling. The Ruling [p. 4] determined that the area of inquiry (i.e., whether a passive gas collection system can be converted successfully into an active one to abate H2S) was relevant, not that the documents themselves were relevant. Other than the Department Staff, no one knew what information the FICA documents actually contained until after the Staff disclosed them in August 1996. Therefore, before I can admit them into evidence, there must be a showing that the FICA documents are relevant [624.9(a)(1)].

This brings us to the question of Mr. Yavonditte's appearance. Consistent with the July 11, 1996 Ruling, the hearing convened on September 5, 1996 to allow the Parties to examine Mr. Yavonditte. As directed, Mr Yavonditte appeared, but he did not testify. Rather, the proceedings on that date were consumed with a series of motions filed by the City. I ruled on the City's motions and the other Parties' counter-motions in a Ruling dated December 10, 1996. Presently, the Commissioner is considering appeals from the December 10, 1996 rulings.

An inordinate amount of time and effort has been devoted to issues surrounding the FICA documents and Mr. Yavonditte's testimony. Yet the record about H2S abatement is incomplete. Therefore, to maintain order and to promote the efficient conduct of this proceeding, I will summon and examine Mr. Yavonditte as provided by 624.8(b)(1)(vi). This process will insure that a complete record is developed so that the Commissioner can make an informed decision about the Applicant's proposal should H2S abatement at the 4C's Landfill become necessary.

My examination of Mr. Yavonditte will also eliminate the dispute between the attorneys for the City and the Applicant concerning discovery. In the December 10, 1996 Ruling [pp. 7 - 9], I directed the City to respond to the Applicant's Disclosure Demand No. 5 if the City intended to call Mr. Yavonditte as a witness. Alternatively, I ruled that if the City did not obey my directive, then I would not allow Mr. Yavonditte to testify [See 624.7(d)(2)]. Since I am calling Mr. Yavonditte, the Applicant's August 5, 1996 discovery demand of the City is now immaterial. On cross-examination, however, the Applicant may ask Mr. Yavonditte about the information sought in the Applicant's Discovery Demand No. 5. The Applicant has explained, and I generally agree, that such information would go to Mr. Yavonditte's credibility. When the hearing reconvenes, I will address objections to specific questions, and rule accordingly.

Mr. Yavonditte's examination will be conducted in a manner consistent with the Department's Policies and Procedures Manual Part 1321. Generally, I will ask Mr. Yavonditte how long he has worked for the Department, his previous and current job titles and duties at the Department, his role in monitoring the FICA Landfill, and the information he has maintained for the Department concerning the FICA Landfill. Also, I will ask Mr. Yavonditte to identify the FICA documents listed in Appendix B of this Ruling.

All Parties with full party status will have an opportunity to cross-examine Mr. Yavonditte. If, after completing my examination, I decide to receive any of the FICA documents into evidence, I will also provide the Parties with an opportunity to make objections, and present argument about the appropriate weight that should be assigned to the FICA documents.

I, therefore, modify Section II of the Rulings dated December 10, 1996 [pp. 6 - 9] so that the December 10, 1996 Rulings are consistent with the preceding discussion.

APPEALS

Pursuant to 6 NYCRR 624.8(d), the Parties may appeal these Rulings. The Commissioner must receive any appeals by March 10, 1997. Appeals shall be double-spaced and not longer than 10 pages. Replies are authorized, and the Commissioner must receive them by March 17, 1997. Replies shall be double-spaced and not longer than 5 pages. Faxed documents will not be accepted.

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.

To conserve judicial resources, the Commissioner will hold the appeals from the December 10, 1996 Rulings in abeyance until the schedule for filing appeals from these Rulings has passed. Subsequently, the Commissioner will issue an Interim Decision that will address all matters appealed from the December 10, 1996 Rulings and these Rulings.

FURTHER PROCEEDINGS

If necessary, I will schedule a conference call with the Parties after the Commissioner reviews any duly filed appeals from these Rulings and from the December 10, 1996 Rulings. Depending on the outcome of the Commissioner's review of the appeals, it may necessary to reconvene the hearing for Mr. Yavonditte's examination.

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

Dated: Albany, New York
February 27, 1996

To: Service List

Attachments: Appendix A, Application Documents.
Appendix B, FICA Documents.

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