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Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Ruling 2, May 10, 2001

Ruling 2, May 10, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of the Application of the

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY
for permits to construct and operate a solid waste landfill in Ava, Oneida County.

RULING OF THE ADMINISTRATIVE LAW JUDGE

DEC Project No. 6-3024-00009/00007

Background

In rulings dated January 30, 2001, I found four issues to adjudicate in this matter. One issue concerned whether construction or operation of the proposed landfill would cause or contribute to the adverse modification of the critical habitat of four bird species considered "threatened" according to Department regulation: the least bittern, northern harrier, upland sandpiper and Henslow's sparrow. This issue was raised by an offer of proof presented by a coalition of project opponents (herein referred to as "the Objectors"): the Town of Ava, the Town and Village of Boonville, the County and Town of Lewis, the Adirondack Communities Advisory League, the Harland J. Hennessey Post 5538 of the Veterans of Foreign Wars, the Charles J. Love D.S.C. Post 406 of the American Legion, and Veterans Defending Our Memorial Forest. My ruling certifying the issue for adjudication was appealed to the Department Commissioner by the Oneida-Herkimer Solid Waste Management Authority ("the Authority") and Department Staff. That appeal has not yet been decided.

By letter dated April 27, 2001, counsel for the Objectors requested my assistance in obtaining access to the site of the proposed landfill so biologists working for their consultant, Hudsonia, Ltd., could conduct a breeding bird survey. The request was made after the Objectors were unsuccessful in getting the Authority's permission for the survey, which, as proposed to the Authority, was to begin on April 25 and continue through July 20.

On April 30, I issued a memorandum allowing the Authority and Department Staff until May 7 to respond in writing to the Objectors' request. By papers dated May 7, the Authority moved for a protective order denying site access. By letter of May 7, Department Staff offered its comments. On May 8, I held a conference call with counsel for the parties:

  • For the Authority, Louis Alexander of Bond, Schoeneck & King in Albany;
  • For the Objectors, Michael Gerrard and Heidi Wendel of Arnold & Porter in New York City; and
  • For Department Staff, Randall C. Young, Assistant Region 6 Attorney in Watertown.

The call provided an opportunity for the parties to answer my questions and respond directly to each other's arguments.

Relevant Legal Authority

The Objectors' request is made pursuant to Section 624.7(c)(4) of Title 6 of the New York Codes, Rules and Regulations [6 NYCRR 624.7(c)(4)], which provides that with permission of the ALJ, a party may access real property in the custody or control of another for the purpose of conducting drilling or other sampling or testing, provided that all parties are given notice of such activities and allowed to observe and to take split samples or use other specified methods of verification.

The Authority's motion for protective order is made pursuant to 6 NYCRR 624.7(d), which provides that a party against whom discovery is demanded may make a motion for such order, in general conformance with Section 3103 of the Civil Practice Law and Rules, to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.

Position of the Objectors

The Objectors have argued that a bird survey must be conducted over the period between April and July in order to reliably assess the use of the landfill site by the four threatened bird species. They propose that biologists affiliated with their consultant, Hudsonia, Ltd., be allowed to perform an initial two-day reconnaissance (to identify the on-site areas where the birds are most likely to be found) that would be followed promptly by a more intensive survey for the birds and any nesting sites they have.

The reconnaissance would be during the daytime hours of 9 a.m. to 6 p.m., but the survey itself would be during the hours of early morning (5 to 10:30 a.m.) and night (10 p.m. to 4 a.m.). As outlined in the Objectors' April 27 letter, the survey would involve visits to the site on as many as 47 different dates between April 30 and July 14, with the final schedule dependent on weather conditions. The details of the survey would be developed after the reconnaissance, but in general Hudsonia's scientists expect to establish a number of observation points in the habitats that appear most suitable for the four target species. At each of these points, they would conduct listening and visual surveys for a pre-determined period during the hours of morning or night when the birds are most likely to be vocalizing. They would document observations of the birds and their behavior. They might broadcast tape-recorded calls of certain of the species to elicit responses, and might install tape recorders at certain locations to record calls at times when the investigators are not present.

The Objectors believe that the bird survey would provide relevant information bearing on the issue I have certified in my rulings. They also point out that my rulings state the Objectors must be given an opportunity to supplement the hearing record with their own observations about the threatened birds' use of the site. They claim that if site access is not granted now, another year will go by before a comparable survey can be conducted. Therefore, they say that consideration of their request should not be deferred until a decision is made on the Applicant's and Department Staff's appeals of my issues ruling.

Position of the Authority

In its motion for protective order, the Authority requests that site access for the Objectors be denied or, if access is allowed, that it be justified on scientific grounds, significantly limited in scope, and conditioned so as to protect the Authority from unreasonable, unwarranted and unnecessary expense.

Even though the Authority considers a new survey to be unnecessary, the Authority remains willing to provide site access to the Objectors for a survey limited to a couple of days, and possibly an evening or two, provided that agreement can be reached on appropriate access-related conditions. However, the Authority says it cannot consent to site access encompassing 49 dates over a three-month period. The Authority says that the four species referenced in my issues ruling are readily detectable by sight or sound in open habitat, and therefore any presence they have at the site can be ascertained in a much shorter, properly timed daytime-only survey. The Authority points out that previous bird surveys conducted on behalf of project opponents in 1993 and 1994 lasted only three days apiece (at a time when the proposed site was more than twice the size it is now), which suggests that a longer survey is unnecessary and unsupportable.

The Authority claims that the Objectors' request for site access is also premature because an appeal of my issues rulings is still pending before the Commissioner, and until it is decided one cannot know whether or in what form the bird issue will remain part of this hearing. The Authority also points out that it was not approached by the Objectors for site access until mid-April of this year, though my issues rulings were released on January 30. The Authority asserts that if the Objectors had wanted to begin their study in April, they should have approached the Authority and me sooner, and to the extent they have not yet been able to launch a survey they would like to have started last month, this is a problem they created for themselves.

Should it be determined that access must be provided, the Authority wants the survey scaled back in terms of the number of days involved. The Authority estimates that maintaining its own presence on-site to observe the survey for the 38 days and 11 nights requested by the Objectors would cost it, a governmental entity, upwards of $50,000 or more, and that these expenses would be reduced by a shorter survey period.

The Authority also wants to assure that any survey is restricted to the four species identified in the issues ruling, and that it not interfere with, disrupt or limit onsite activities, including haying and other farm-related chores of resident Joseph Paluck. Various conditions for site access (addressing prior identification of Hudsonia surveying staff, coordination of survey dates with the Authority's technical representatives and DEC Staff, prior approval of equipment that would be used, executions of indemnification agreements and "due care" statements) are outlined in a letter of April 17 from Mr. Alexander to Ms. Wendel; the Authority wants them incorporated as part of any discovery directive that I or the Commissioner should issue.

Finally, the Authority points out that of the six properties to which access is sought, the Authority owns only the Paluck and Card/Youngs parcels, and the former Daskiewich property located south of Route 294, and arrangements to enter non-Authority properties must be made with their respective owners.

Position of Department Staff

Department Staff point out that the question of site access does not directly involve them. However, assuming the Authority would have its own biologists observe any survey that is conducted, Staff contends that its personnel should also be there. Staff is concerned that due to the length and intensity of the survey proposed by the Objectors, and the lack of fixed survey dates, it cannot assure a constant presence. Staff is also concerned that if the threatened bird habitat issue does not survive the appeal to the Commissioner (Staff joins the Authority in arguing that the issue does not require adjudication) any survey conducted by the Objectors will ultimately have no use in this proceeding and therefore any Department time devoted to it would be wasted.

Discussion

The Objectors' desire to perform a breeding bird survey arises from my issues rulings of January 30, 2001, which identified as an item for adjudication whether construction or operation of the proposed landfill would cause or contribute to the adverse modification of the critical habitat of the four threatened bird species identified above, in violation of 6 NYCRR 360-1.7(a)(2)(iii). Issues for consideration, I said, would include the adequacy (in terms of timing and intensity) of the Authority's 1995 and 1997 breeding bird surveys, the credit to be given to other sightings referenced in the Objectors' petition (which are described in my rulings), and the value of the site as habitat for the four species. I said the adequacy of the Authority's bird studies must be considered to confirm those studies' conclusions (which suggest there is no critical onsite habitat for any threatened or endangered bird species), and that the Objectors must be given an opportunity to supplement the record with their own observations about use of the site by the least bittern, northern harrier, upland sandpiper and Henslow's sparrow. [These four species are considered "threatened" according to 6 NYCRR 182.6(b)(6)(ii), (iv), (vi) and (x), and therefore deserving of special protection.]

My ruling did not mandate or even endorse the survey that is now proposed by the Objectors; in fact, at the time of the issues conference, the Objectors did not propose to conduct such a survey themselves. According to the Objectors, their intent to do the survey (and take on its associated cost) follows from my ruling certifying threatened bird habitat as a hearing issue. With the issue now identified, the Objectors are willing to risk its being dismissed on appeal so that they can augment their case for its anticipated adjudication.

I should point out that even if my ruling survives the appeals of the Authority and Department Staff, I do not consider another study (by the Objectors or anyone else) to be necessary at this time. (If I did, I would require the Authority to do it, at its expense, pursuant to 6 NYCRR 621.15(b), so that the issue identified in my rulings could be determined.) As noted above, both the Authority and project opponents have previously inspected the site, and a record can be developed based on their observations to date, expert testimony from all parties, and other material that was referenced at the issues conference.

However, in considering site access for the Objectors, one does not need to determine that another study is necessary; one needs to determine only that it would provide material and relevant information, since that is the well-established standard for discovery. On that point there can be no serious doubt, and therefore site access is appropriate and should be allowed.

As proposed by the Objectors, the survey would be directed at the four bird species in question, it would go forward during their breeding seasons (so the use of the site for nesting could be considered), and it would be conducted by wildlife biologists, with an opportunity for the Authority and Department Staff to verify any findings that are made. The survey would be more intensive than past site surveillance, it would provide current information, it would be focused in relation to the identified issue, and I do not foresee it delaying that issue's adjudication provided it wraps up, as intended, by July 20. Even if the birds are not located, that by itself would be relevant to whether the site is critical habitat.

I recognize that any thorough survey costs considerable time and money to conduct and observe. However, the Objectors are willing to incur their own expenses even in the face of two apparent risks: one, that the bird issue will not survive the appeals of my issues rulings; and two, that their survey may not produce evidence helpful to their position. As for costs that would be shouldered by the Authority and Department Staff, it is up to them how closely they want to observe Hudsonia's work; the regulations' allowance for them to observe the bird survey is not a requirement that they do so. Provided that the Objectors are willing to abide by the conditions in Mr. Alexander's letter of April 17 (which their counsel voiced no objection to during our call), the Authority's interests in site security appear to be adequately protected. If conditions under which I allow the survey to go forward are violated, this can be brought to my attention and, if warranted, site access can be terminated. While I see no need for the Authority (or Department Staff, for that matter) to maintain a regular monitoring presence, it is fair to insist that the Objectors report any observations of the four species at issue, or any location of their nests, to the Authority's and DEC Staff's chosen representatives within 24 hours of their occurrence, so that these parties are made aware of significant findings as the survey progresses and can do whatever follow-up they want, in conjunction with or separate from the Objectors' own work.

The Department's permit hearing regulations [6 NYCRR 624.7] specifically address a range of discovery devices (including property inspection) that is allowed within 10 days after service of "the final designation of issues," which has not yet occurred here since the Commissioner's decision on appeals of my issues rulings is still pending. However, the regulations do not preclude discovery at earlier hearing stages; for instance, an ALJ may allow discovery even prior to the issues conference in the presence of extraordinary circumstances. The Authority and Department Staff prefer that any site access for the Objectors be deferred until it is clear whether the bird issue will be adjudicated; however, by the time the Commissioner's decision on appeals is made, the window on the breeding season for these birds may be closing or closed, so that site access at that later time would have sharply diminished value. It is better to allow site access now, and if the Authority or Department Staff disagree, they should seek leave of the Commissioner to file an expedited appeal, consistent with 6 NYCRR 624.8(d)(2)(v). [Such a request by itself would not stay the effect of this ruling; however, the Commissioner could in her discretion issue a stay while any appeal is entertained.]

Ruling

In summary, I conclude that site access must be afforded now, with two key understandings. First, all activities of Hudsonia must be done with adequate prior notice to the Authority and Department Staff and with an opportunity for them to observe all aspects of the work. Second, Hudsonia's activities must be done in ways that are not damaging to the site or disruptive or hazardous to activities that already occur there.

Given these understandings, I hereby grant site access so that Hudsonia may conduct site reconnaissance and a follow-up survey in relation to the four threatened bird species and the habitat they might use on-site for their activities. The initial reconnaissance shall be allowed on two weekdays between May 14 and 18, between the hours of 9 a.m. on 6 p.m., on dates that are also available to the Authority's technical representatives and representatives of DEC Staff, if they also wish to participate. (The Authority and Department Staff shall make good faith efforts to assure availability of such representatives so that the Objectors' intent to commence surveillance promptly is not frustrated.)

I understand from the Objectors' correspondence and our conference call that the purpose of the initial two-day reconnaissance is to find (and potentially flag) the areas on-site where the bird species are most likely to be found or nesting, and that the findings of the reconnaissance will affect the type of survey that will follow. As desired by the Objectors, permission shall be granted for up to three Hudsonia biologists (who already have been identified) to perform the surveillance. Needless to say, to the extent that portions of the site and its adjacent area are not controlled by the Authority, the Objectors will have to obtain separate permissions of the other landowners to visit their properties.

Once the reconnaissance is completed, the Objectors shall file a report with me, the Authority and Department Staff briefly summarizing their findings and detailing the follow-up survey they intend to conduct, including the precise purpose of the survey and all techniques that it will employ. Provided that proposed site activities are limited to those already anticipated (walking the site, flagging trails and observation points, broadcasting calls, and placing tape recorders so that they are not an obstacle or hazard) I do not foresee any basis for the Authority's objection to them prior to survey commencement.

For the survey itself, the Objectors desire access for one or two Hudsonia biologists, who would be at the site between 5 a.m. and 10:30 a.m. or 10 p.m. to 4 a.m. on pre-designated dates. The Objectors request access at these times (and allowance to leave tape recorders at the site) with the understanding that some of the targeted birds are shy, vocalize more at night, and vocalize in a way that can be difficult to detect in conjunction with other sounds. This provides a reasonable basis to allow for survey activities outside of normal daytime work hours, and for taping that would supplement direct observations.

Assuming pre-conditions for site access are met (as outlined below) so that the two-day surveillance occurs next week, the survey itself may begin five days after the Objectors' report is received by me and the other parties. I recognize that the Objectors would like to have started work sooner; however, initial reconnaissance may go ahead next week, and I agree with the Authority that had they wanted a survey to encompass the birds' entire breeding season, the Objectors should have acted promptly after my issues ruling was issued. At this point any delay in commencing the survey must be laid at the Objectors' own feet. It is not fair to the other parties to speed activities forward; instead, a step-by-step approach is important to assure that the survey methodology is defined in advance, and that the interests of the Authority and Department Staff are protected.

It is especially important that the Authority and Department Staff have an opportunity to witness the survey as it proceeds. Therefore, fixed survey dates must be established as soon as possible. The Objectors shall propose the dates and the Authority and Department Staff shall be expected to take all reasonable measures to accommodate them, so that the survey timetable remains in the Objectors' control except to the extent that the survey would interfere with other site activities. (The conduct of the survey in the early morning hours and at night should minimize any conflict.)

The Objectors' approach so far of establishing only tentative dates subject to substitution based on weather conditions and other unforeseen circumstances that may not be known until the last moment does not provide meaningful notice to the other parties. Instead, fixed dates must be announced at the outset (in the report I and the other parties shall receive), and a notification mechanism established so that if any date is canceled, adequate advance notice is given to representatives of the Authority and Department Staff who have indicated they would attend. The number of survey dates shall be up to the Objectors; however, once the schedule is set, Hudsonia shall be expected to meet it unless for any reason Hudsonia decides to conclude the survey.

My allowance for site access is subject to the following conditions:

  1. Site access for the Objectors shall be limited to the three Hudsonia biologists they have previously identified: Erik Kiviat, Gretchen Stevens and Mickey Scilingo. Access to all other representatives of the Objectors shall be prohibited. The three biologists shall carry appropriate identification for presentation if requested by Authority representatives. They shall sign the indemnification agreement and statement of due care furnished by Authority counsel in his letter of April 17.
  2. Any observations of members of the four threatened species, location of their nests, or other evidence indicating actual use of the site by the four bird species (including detection of their calls) shall be reported within 24 hours to the Authority and Department Staff through their pre-designated representatives.
  3. In general, Hudsonia's biologists shall have unrestricted access to all portions of the site controlled by the Authority, and, as requested by Hudsonia, any accompanying observers for the Authority and Department Staff shall be expected to appear at the pre-announced start times and locations of survey visits, and remain quiet and reasonably still in the field so as not to upset any surveillance activities. On the other hand, Hudsonia's biologists shall not be allowed to disturb or interfere with other site activities including but not limited to haying that may occur on the Paluck parcel. The Authority shall provide the Objectors reasonable advance notice of other site activities so that any conflicts are avoided.
  4. As requested, Hudsonia's biologists shall be allowed use of field gear including binoculars, waders, compasses, tape measures, spotting scopes, and cameras. They may also use audio equipment, including one tape recorder for call playback and a maximum of two tape recorders for remote recording, which may be left on-site provided they are not a hazard. They will be allowed the use of flagged wooden stakes for observation points and trails, provided the stakes are not an obstruction and are removed upon completion of survey activities. No excavation or removal of vegetation is authorized. Any need for equipment beyond that listed above shall be addressed in the report detailing planned survey activities.

It is expected that the parties will cooperate through designated representatives to assure that onsite activities are conducted in a way that is both productive and orderly. If, however, my intervention is needed to resolve conflicts or address compliance with this ruling, the parties' counsel should contact my office.

/s/
By: Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
May 10, 2001

TO: Service List

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