Saratoga County Landfill - Ruling, May 4, 1995
Ruling, May 4, 1995
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
the Application of SARATOGA COUNTY for permits to construct and operate a solid waste landfill in Northumberland, Saratoga County.
RULING OF THE ADMINISTRATIVE LAW JUDGE
(Project Application No. 5-4146-00018/00002-1) (DISCOVERY)
This matter involves an application by Saratoga County to construct and operate a 23-acre, double-lined, county-wide municipal solid waste landfill on a portion of a 350-acre tract at the eastern end of Kobor Road in Northumberland, Saratoga County.
On April 24, I received a motion from special counsel for the Town of Northumberland indicating that the Town would be seeking intervenor status at the issues conference concerning this permit application. That conference is scheduled for May 17 and 18. Timely responses to the motion were received on May 2 from counsel for the Applicant and DEC Staff.
To prepare its petition for party status, the Town requests an order pursuant to 6 NYCRR 624.7(a) permitting its representatives to enter the proposed landfill site in order to dig test pits, obtain soil samples, perform pump tests, make field measurements, and observe water levels in existing wells. In the alternative, the Town requests that I determine that certain issues proposed by the Town warrant adjudication based on the evidentiary showing made in an affidavit by the Town's engineering consultant, Thomas F. Zimmie, a professor at Rensselaer Polytechnic Institute. The Town's proposed issues relate to the permeability of soils and the County's request for a variance from the provisions of 6 NYCRR 360-2.13(d), which requires a minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater elevation.
The Town's request for an order allowing entrance to the project site prior to the issues conference is denied. According to 6 NYCRR 624.7(a), discovery prior to the issues conference is generally limited to what is afforded under the Department's regulations implementing the state's Freedom of Information Law. In the absence of "extraordinary" circumstances, the ALJ cannot grant petitions for further discovery.
The regulations are clearly intended to restrict discovery prior to the issues conference to a much greater extent than would be the case once issues and parties are identified and an adjudicatory hearing is anticipated. At this point issues have not been identified, parties have not been designated, and it has not been determined if an adjudicatory hearing will be held.
According to the Town, the Department will require "very specific and conclusive evidence" on its issues to get beyond an issues conference to a full adjudicatory hearing. This is not an accurate description of the "substantive and significant" test employed to review issues proposed by a prospective intervenor. According to the 6 NYCRR 624.4(c)(2), an issue is "substantive" if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. This doubt can be created without the intervenor having to present specific and conclusive evidence to rebut assertions in the application documents. In fact, in its response to public comments on 6 NYCRR 624.7, the Department explains its restriction on discovery prior to the issues conference as follows: "We view the application documents as normally being sufficient to alert any intervenors to matters which could potentially lead to an issue." [DEC Comments/Response Document on Part 622 and 624 Regulations, December 1993, page 30.]
The Town's request that I certify issues for adjudication now is also denied. The purpose of the issues conference is to determine what issues require adjudication. At the conference the Town's issues will be entertained provided they are first framed in a petition for party status. That petition may include a discussion of Dr. Zimmie's analysis of the project application and the testing he has performed at sites adjacent to the proposed landfill. If, in conjunction with any proposed issue, the Town wants discovery not now available to it, that request should also be part of the petition. A precise description of the testing proposed, how and by whom it would be done, how long it would take, and how other parties would be able to verify the results must be provided.
The Town should also be prepared to discuss what authority I have to direct access to the project site under 6 NYCRR 624.7(c)(4). It appears that section allows a party, with the ALJ's permission, to access real property in the custody or control of another party for the purpose of conducting drilling or other sampling or testing. While the Town says the County has refused to grant Dr. Zimmie access to the landfill site, the County denies this and adds that, even if requested, it would not have the authority to grant access because it does not own the property. According to the County, the property is owned by Mr. Jamon Baker and Scott Paper Company/Finch, Pruyn & Company, and the County only has options to buy their parcels. The Town should be prepared to explain how, if at all, it sees the Applicant as having "custody or control" of the project site, what efforts it has made to request access from the property owners, and what responses these owners have given them.
This ruling does not address the merits of the Town's proposed issues as argued in the parties' papers since that is appropriate for an issues ruling, which would result from the upcoming conference.
Administrative Law Judge
Albany, New York
Dated: May 4, 1995
BY FAX AND MAIL TO:
Laura Zeisel, Esq.
169 Main Street
P.O. Box 9
New Paltz, New York 12561
ATTN: Rachelle Gura, Esq.
FAX No. 914-255-7734
(Special Counsel to the Town of Northumberland)
Louis A. Alexander, Esq.
Bond, Schoeneck & King, LLP
111 Washington Avenue
Albany, New York 12210-2280
FAX No. 518-462-7441
(Attorney for Saratoga County)
Steven L. Brewer, Esq.
NYSDEC Region 5 Office of Legal Affairs
Route 86 - PO Box 296
Ray Brook, New York 12977-0296
FAX No. 518-897-1394
(Attorney for DEC Staff)