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Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Ruling 3, May 8, 2002

Ruling 3, May 8, 2002

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

On April 2, 2002, the Commissioner issued an interim decision addressing appeals of my issues rulings in this matter. Part of the decision affirmed my ruling that an issue exists as to 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. After this issue was identified in my issues rulings but before the interim decision was issued, a project site bird survey was conducted during the spring and summer of 2001 on behalf of the Objectors opposing permit issuance: 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. Now, in the wake of the interim decision, the Objectors propose that a more limited survey, focused on the northern harrier and upland sandpiper, be conducted on six dates between May 13 and June 6, 2002.

The Objectors first detailed this survey in a letter to the Authority on April 29, 2002, requesting access to the project site. By letter of May 1, 2002, the Authority denied access, claiming there has been more than a full and fair opportunity to evaluate the site, and further access is, therefore, unnecessary.

On May 2, 2002, the Objectors sent me a letter requesting site access pursuant to 6 NYCRR 624.7(c)(4). This discovery provision of the Department's permit hearing regulations provides that with permission of the administrative law judge (ALJ), a party may access real property in the custody or control of another for the purpose of conducting drilling or other sampling and testing. It also provides that all parties must be given notice of such activities and be allowed to observe and to take split samples or use other specified methods of verification.

Once I received the Objectors' letter, I immediately set up a conference call with the parties' counsel. That call was held on May 3, 3002. Participating in the call were Louis Alexander for the Applicant, Michael Gerrard and Heidi Wendel for the Objectors, and Randall Young for Department Staff. Prior to the call, Mr. Alexander, with my permission, submitted a letter summarizing the Authority's objections to site access. At the conclusion of the call, after discussing the parties' various positions, I gave all counsel until 5 p.m. May 6, 2002, to make any additional submissions they considered necessary. Timely submissions were received from the Authority and the Objectors.

Relevant Legal Authority

The Department's permit hearing regulations [6 NYCRR 624.7(d)] allow a party against whom discovery is demanded to make a motion to the ALJ for a protective order, in general conformance with Civil Practice Law and Rules (CPLR) Section 3103 to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. For the purpose of these rulings, I am treating Mr. Alexander's May 3 letter as the equivalent of a motion for protective order.

Position of the Objectors

The Objectors propose to make six site visits between May 13 and June 3, four in the morning and two in the evening, to detect any activities of the northern harrier and upland sandpiper, in particular. They say a survey during this time frame is necessary because of these species' breeding habits, and claim that they have made every effort to keep the survey as short as possible to reduce the cost and inconvenience to the parties.

Acknowledging that last year's survey covered dates within this same period of the year, the Objectors say that observations conducted during only one year may well miss the species in question. They claim that it often takes intensive observations to find rare species, and highly mobile species like birds may be visible in some years but not others.

Position of the Authority

The Authority claims that, under the standards of 6 NYCRR 624.7(d), it is entitled to a protective order denying site access because the survey would expose it to unreasonable annoyance and expense. The Authority claims that the survey would be essentially repetitive of the one conducted last year; in fact, during the May 13-June 3 period in 2001, the Objectors had site access on May 14, May 24, May 25, May 30, June 1 and June 6. According to the Authority, its cost to attend and observe the 2001 survey was substantial, both in time and financial expense, and a second duplicative survey, even one involving fewer days than last year's, would also entail considerable cost for the Authority as a governmental entity.

Position of Department Staff

Department Staff agree with the Authority that there has already been sufficient site access for the Objectors, and that there is ample available information to adjudicate the pending issue of impacts to the four threatened bird species. Noting that the issue involves whether the site is critical species habitat, Department Staff argue that the 2001 survey provides more than enough information on this point, regardless of whether that habitat is used in any particular year.

Discussion

By requesting site access, the Objectors seek to continue into a second year a breeding bird survey that I first authorized in a May 10, 2001 ruling. In that ruling, over the Authority's objection, I granted the Objectors access under 6 NYCRR 624.7(c)(4), the same provision invoked by them now. I stressed in the ruling that I did not consider the survey proposed by the Objectors to be necessary, and that if it were, 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. However, I added that in considering the Objectors' request, I did not need to determine whether another study was necessary; I needed to determine only that it would provide relevant and material information, since that is the well-established standard for discovery. Finding no serious doubt that the study would provide material and relevant information, I found site access to be appropriate and, therefore, granted it to the Objectors. By that same reasoning, I am allowing site access again.

The only significant new issue raised by this second access request is whether, as the Authority argues, this year's survey would be duplicative of last year's effort, in the sense that it would provide no new information. In Mr. Gerrard's May 2 letter, he wrote that last year's survey missed the May breeding period of the northern harrier. However, during our conference call, he corrected himself after it was confirmed that survey visits occurred on May 14, May 24, May 25 and May 30, 2001.

The Objectors point out that, during their 2001 survey, they noted harriers foraging at the landfill site, which would be consistent with the presence of nearby off-site nests. Citing a text on North American birds, they argue that because harriers tend to return to the same general area but not to the same nests from year to year, any harriers that were nesting near the site last year may well nest on the site this year. This is a reasonable theory worth investigating through the short survey proposed by the Objectors. Whatever the survey results, they will provide valuable information about the actual use of the site by the northern harrier (and, for that matter, by the other three threatened bird species), which is relevant to whether the site may be considered critical species habitat. Needless to say, the survey may or may not be helpful to the Objectors' position.

In another context where repeated rounds of testing would more certainly yield the same results (for instance, testing to locate geologic features) I would give more weight to the Authority's argument about the duplicative (or repetitive) nature of the site investigation. However, as the Objectors argue, birds are highly mobile species, and their presence can be hard to discern, so it is somewhat difficult to use the 2001 survey to predict what might be observed at the site this spring. Also, as noted in the Objectors' references, densities of northern harriers can fluctuate greatly from year to year in response to the availability and abundance of prey species, such as voles, which is why a multi-year survey best presents an accurate picture of site use.

Of course, the issue presented in this case could be adjudicated without the continuation this year of the Objectors' bird survey. However, as I point out above, access should be viewed not in terms of what is necessary, but what would provide relevant new information and therefore productively add to the evidentiary record. Even if the survey is repetitive as to time frame and methods employed, it does not necessarily follow that the observations will be the same.

The Authority argues that because of the duplicative nature of the survey, its monitoring of the survey would involve unreasonable annoyance and expense, and therefore a protective order is warranted. An affidavit of Authority representative Michael Wolak, attached to Mr. Alexander's May 6 letter, indicates that the Authority incurred costs of about forty-one thousand dollars ($41,000) in having its experts monitor last year's survey and arranging for site access. Needless to say, a second survey this year would entail additional costs to the Authority, as well as to Department Staff, which, like the Authority, has the right to observe all survey activities. While I am mindful of the costs, in terms of time and financial resources, to monitor the survey proposed by the Objectors, the shortened time frame and the limited number of visits proposed this year should curb costs for the Authority and Department Staff, and I do not consider such costs unreasonable in light of the benefit the survey would have in helping assure a correct decision on the issue the Commissioner has now certified for adjudication. Incidentally, the anticipated costs to the Authority of monitoring the survey, in proportion to the total cost of the landfill project, have no bearing on my decision, since, as the Authority argues, by that approach, cost would not be a consideration for any proposed study, no matter how duplicative or unnecessary, at the latter stages of a project's development. Instead, following the Authority's proposed approach, I have weighed the Authority's anticipated monitoring costs against the utility (or worth) of the survey, though, as to the survey's utility, I disagree with the Authority's assertions.

Addressing other points raised by the Authority:

  • The Authority points out that, when the Objectors reported the results of last year's survey, they did not request a continuation of the survey into this year, so one could conclude that the access given in 2001 was more than satisfactory. I should note that, at the time the results were reported (in August, 2001) it could not reasonably have been foreseen that an opportunity to continue the survey this spring would exist. As it turned out, with the Commissioner issuing her interim decision in early April, 2002, and the hearing not now scheduled to commence until early September, a window has opened for the limited survey the Objectors now propose to conduct. This survey can be concluded before the parties turn their attention to the preparation of pre-filed testimony.
  • The Authority objects to what it considers the Objectors' late notice of their intent to continue the survey this year, pointing out that the Commissioner's interim decision was issued on April 2 and Objectors' counsel did not request site access of the Authority until April 29. I appreciate the Authority's concern on this point, but should also note that in prior conference calls among the parties and me, the Objectors had discussed the possibility of seeking site access on this issue, and I presume a final decision had to await their decision whether it was worthwhile funding a new survey effort or relying on the evidence already available to them. Even if the Objectors could have acted sooner, I have given the Authority a full opportunity to make its objections while also meeting the Objectors' interest in a timely ruling that allows access according to their proposed schedule.
  • The Authority argues that there have been many site-specific breeding bird surveys conducted not only the Objectors but, as part of the site selection and environmental review processes, by the Authority itself. That is true, but whatever the adequacy, in terms of timing and intensity, of the Authority's prior efforts (part of the issue pending adjudication), the Objectors' proposed survey would still provide additional relevant information. Also, while on the issue of the northern harrier, the Objectors also rely on visits conducted by Dr. Robert Andrle in 1993 and 1994 (before the Authority acquired the project site), those visits apparently occurred in July, so they would not provide information about the early part of the harrier breeding season.
  • The Authority objects to authorization for five Objectors' consultants to access the site, questioning this in light of the Objectors' previously stated need to limit the number of survey participants so as not to frighten birds away. The Objectors have stated that field visits would be conducted primarily by Mickey Scilingo, the biologist who conducted much of the survey last year, and by Gerald Smith, an ornithologist formerly with The Nature Conservancy, both of whom would be working for Hudsonia, Ltd. They claim that on most days, only these two would be on the site, but on a few days Erik Kiviat, Gretchen Stevens or Kathryn Schneider, a northern harrier expert formerly with the New York Natural Heritage Program, might accompany them for a field visit. The Authority has no objection to any one of these individuals, but says that five people is excessive, and the more individuals participating for the Objectors at any one time, the more monitors the Authority and Department Staff would need to observe activities and confirm sightings of birds or their nests.

    The Authority's concern in this respect is legitimate, so while allowing site access for the Objectors, I am hereby limiting them to two individuals per survey visit. (The Authority shall be allowed one or two representatives per visit, at their discretion, and Department Staff may send one, to keep the total survey party reasonably small.) Also, in the expectation that the Authority will want to monitor each visit, all survey participants shall remain together at all times, though the Objectors shall determine what portions of the site are visited and for how long the participants remain at any one place.

  • The Authority notes that the site access request does not address insurance and indemnification matters. This is an important point, but should be easily resolved. In my ruling last year granting site access, I required that the Objectors' consultants sign an indemnification agreement and statement of due care that had been furnished by Authority counsel. That same requirement shall apply to this year's survey. Objectors' counsel shall promptly address these matters with Authority counsel, to eliminate any obstacle to commencement of survey activities on May 14.

Ruling

The Objectors' named consultants are hereby granted permission to access the project site for the breeding bird survey outlined in Heidi Wendel's April 29, 2002 letter. As described in Ms. Wendel's letter, the survey will entail morning and evening field visits covering the approximately 75 hectares (180 acres) of meadow and shrubland on the landfill site on six dates between May 13 and June 6, 2002. The scheduled dates and times are as follows:

  1. Mornings from 8:00 a.m. through 11 a.m. on May 13, May 20, May 23 and May 28.
  2. Evening from 5:00 p.m. through 8:00 p.m. on May 17
  3. Evening from 5:00 p.m. through 10:00 p.m. on June 3.

The schedule of alternative dates and the cancellation procedures set out in Ms. Wendel's letter are adopted, as the Authority made no objection to them during our conference call and Ms. Wendel indicated that the cancellation procedures are essentially similar to those used during last year's survey.

As the Objectors propose, the survey will be conducted by means of a slow "walk-about" through the parts of the site considered by the Objectors to be potential breeding habitat for the northern harrier and upland sandpiper. All bird species observed by sight or by sound will be recorded. Routes and directions of travel will vary on each visit so that each area of the site is visited at different times of the day in the course of the survey. The Objectors' consultants will broadcast recorded calls of the upland sandpiper and Henslow's sparrow to attempt to elicit a vocal response. These "playbacks" will not exceed five minutes at any location in any single day or evening survey period to minimize disturbance to the birds. If a breeding pair of any threatened or endangered species is discovered, the Objectors' consultants will avoid the actual or potential nest location to avoid disturbing the birds unnecessarily. Field gear including binoculars, compasses, tape measures, spotting scopes, cameras and audio equipment may be used, but shall not be left on-site between visits.

The Objectors' consultants shall notify representatives designated in advance by the Authority and Department Staff within 24 hours of any detection of a threatened or endangered species at the site, or evidence that such a species is nesting there. Additionally, to the extent representatives of the Authority and Department Staff are part of a survey visit, those representatives shall be notified immediately, so contemporaneous verification of the Objectors' finding is possible.

The point of site entry for each visit shall be controlled by the Authority, to assure that the survey group is gathered and identified before each visit is scheduled to commence. The Objectors' consultants shall carry appropriate identification for presentation if requested by Authority representatives. Except for the five consultants already identified by the Objectors, no one else may enter the site on their behalf. Also, as noted above, the Objectors shall be limited to two survey participants per visit.

Survey observers for the Authority and Department Staff shall remain reasonably quiet and still in the field so as not to upset survey activities. The Authority shall provide the Objectors' consultants with reasonable advance notice of site activities that might be disturbed or interfered with by the survey, and the Objectors shall avoid any disturbance or interference with them.

As with last year's survey, it is expected that the parties will cooperate through their designated representatives to assure that the survey is 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 shall contact me and, if necessary, I will set up a conference call. The Objectors' non-compliance with any of my directives regarding the survey shall be a basis for terminating the survey before its scheduled conclusion.

/s/
By: Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
May 8, 2002

TO: Service List

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