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Saratoga County Landfill - Ruling 3, October 27, 1995

Ruling 3, October 27, 1995

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Application of SARATOGA COUNTY for permits to construct and operate
a solid waste landfill in Northumberland, Saratoga County.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

(DEC Project No. 5-4146-00018/00002-1)

Introduction

These rulings address disputes arising from the discovery demands of Saratoga County, the Town of Northumberland, and Department Staff. These disputes were noted in correspondence from the parties and then discussed with me during conference calls on October 24 and 25, 1995.

According to Section 3101 of the Civil Practice Law and Rules (CPLR), there shall be full disclosure of all evidence "material and necessary" in the prosecution or defense of an action. Given case law interpreting this provision and applying it to administrative hearings, discovery is required as to all evidence relevant to the hearing issues and as to all information reasonably calculated to lead to relevant evidence. [New York Practice, David D. Seigel, 344, p.422, c. 1978.]

While the scope of discovery is broad, the assigned Administrative Law Judge may deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice [6 NYCRR 624.7(d)].

These rulings address first the Town's requests for access to the proposed county landfill site and a neighboring site on which Scott Paper Company and Finch, Pruyn & Company, Inc., have been permitted to construct another landfill. Second, these rulings address, by each hearing topic, the remaining discovery disputes.

Site Access Requests

- -Access to the Scott/Finch Landfill Site

The Town requests of the County access to the Scott/Finch site to observe construction of the paper companies' landfill. (Town's Supplemental Demand of the County, p.2, para. 1.). Specifically, the Town wants to observe the trenches and other holes being dug now and in the future as part of the site construction, in order to observe soil stratigraphy (lenses, varves, etc.) and hydrogeology, with an allowance for still and video photography.

This request is inappropriate since the County does not have custody or control of the site of the paper companies' landfill. For this same reason, I have no authority to permit access to the site pursuant to 6 NYCRR 624.7(c)(4). The site is owned by the paper companies and the Town has made no similar request to them. While the Town argues that DEC has access to the site, such access is only to ensure compliance with DEC's Part 360 permit.

The Town now claims it made this discovery request to see if the County would object to it on its merits. The use of discovery for this purpose, where the County clearly has no authority to grant the request, is palpably improper.

Therefore, this request shall be stricken from the Town's demand.

- -Access to the County Landfill Site

The Town requests that it be able to conduct a noise survey on and in the vicinity of the County's proposed landfill footprint, in order to obtain evidence concerning the appropriate noise decay rate to be employed at the site. This request is made of the County (Town's Supplemental Demand of the County, p.2, para. 2.) and, since the County opposes it, to me pursuant to 6 NYCRR 624.7(c).

The Town argues that site testing is required since the County has raised atmospheric effects and the softness of the ground as considerations in projecting a sound level decay rate of 7.5 decibels per doubling of distance. The County indicates that this decay rate is based on literature and the past experience of its noise experts, not on its own site testing. Also, the County does not object to the production of all documents relating to its projected decay rate, including documents bearing on atmospheric conditions. The production of these documents is adequate for the Town's hearing preparation, and therefore site testing is not necessary.

Also, Deputy Commissioner Sterman's Second Interim Decision, dated October 3, 1995, limits consideration to noise from landfill operation. Once constructed and operating, the landfill site would have a different landscape (including berms near the property boundaries and a pit for waste disposal) and therefore any noise testing now would not be predictive of post-construction conditions. For this reason too, I will not grant permission for site access, and the request for testing shall be stricken from the Town's demand of the County.

Topical Discovery Disputes

These rulings address the remaining discovery disputes.

Groundwater Variance

The Town requests that the County gather additional information concerning the soil permeability at the site (Town's Supplemental Demand of the County, p.4, para.4) and that the Department require the County to gather this additional information (Town's Supplemental Demand of the Department, p.3, para.2).

In his July 14, 1995, decision, Deputy Commissioner Sterman instructed that the existing information regarding soil permeability be re-evaluated in the hearing as a forum to examine conflicting information of the County and the Town and a safety net to ensure proper engineering design. He added, however, that "should the County be required to gather additional site information to ensure an acceptable design, or if Staff require such information pursuant to 6 NYCRR 621.15(b), the Town, as well as Staff, should be provided the opportunity to observe the gathering of such information and the opportunity to evaluate it."

The Town wants additional testing to consist of test pits and auger holes on and in the vicinity of the footprint. I have previously ruled that the Town should have site access to dig its own test pits; however, on appeal by the County, this ruling was reversed by Deputy Commissioner Sterman in his July 14, 1995, interim decision. Deputy Commissioner Sterman said the sampling information already gathered by the Town raised a substantive and significant issue regarding permeability and that further site access by the Town was not necessary.

Deputy Commissioner Sterman clearly indicates that soil permeability can and should be considered based on existing information. While he holds open the possibility that additional information may still be required, the variance issue has not yet been litigated, and therefore I have no basis to recommend further testing. Also, the Department Staff and the County, to whom the Town's requests are now directed, see no basis for it either. My upholding the Town's demands - - and therefore directing the testing - - would have the effect of reversing Deputy Commissioner Sterman's decision, which I have no authority to do. Therefore, the Town's demands of the County and DEC Staff are stricken, and no additional testing is directed.

Monitorability

The Town requests that the County produce all documents relating to, used to develop, or including, inputs made by the County's consultants into the modeling of groundwater elevation during operation of the proposed county landfill (issues conference exhibit No. 101). This request [Town's Initial Demand of the County, p.4, para. 3(a)] includes all raw data files or configuration files used to create input files, both on computer disc and hard copies. The County is willing to provide the hard copies but not the computer discs, arguing that the discs required extensive preparation and that, at any rate, the modeling is simply "icing on the cake" to demonstrate that the County's and the paper companies' landfills would be independently monitorable.

I affirm the Town's request that the computer discs be provided, subject to the parties' understanding that all computer discs produced for each other be returned to the producing party immediately after a final permit decision is made. Even if the Town could itself create the model from the hard copy, there is no reason why it should have to. The County's argument that the model took a lot of time to create is not, by itself, a cognizable objection to its production. Also, production of the disc will facilitate the Town's consideration of the model, including use of different inputs to see how this would affect the results.

Separation from Airports

The issue here concerns aircraft safety due to the proximity of the proposed county landfill to the Heber Airpark. At the time of my issues ruling, the Town had indicated that the Army National Guard was flying AH-1, UH-1 and OH-6 turbine-powered helicopters into the airpark. During our conference call the Town's attorney, Ms. Gura, indicated that based on information by Neil Goodrich of the Army National Guard, other types of turbine-powered helicopters (the UH-60 Blackhawk and OH-50 Jet Ranger) are now also using the airpark. Assuming the Town is correct, consideration of this fact is consistent with Commissioner Sterman's decision, which requires submittal of a variance request in light of the actual or potential use of Heber Airpark by turbine-powered helicopters.

Prior to our conference call the parties reached a stipulation that for purposes of this hearing, the Army National Guard helicopters using the Heber Airpark are considered to be "turbojet aircraft" as that term is used in 6 NYCRR 360-2.12(c)(3). The parties believe that such an interpretation is necessary to support Deputy Commissioner Sterman's requirement that the County submit a variance application, and that otherwise this requirement is not legally supportable.

I cannot accept this stipulation since Deputy Commissioner Sterman's second interim decision states explicitly that the helicopters in question are not turbojet aircraft. Therefore, to accept the parties' stipulation would in effect reverse that decision. Modification of the decision could only be accomplished by a motion for its reconsideration, which none of the parties have made. Beyond that, the County has agreed to make a variance application, and indicated during our call that it would be completed within the next two weeks.

The Town requests of the County and the Department Staff all documents relating to the definitions and/or intended meanings of "turbojet," "turbine-powered," piston-type aircraft," and any other types of aircraft as they relate to aircraft and public safety concerns. [Town's Initial Demand of the Department, p.4, para. 5(a); Town's Initial Demand of the County, p.5, para. 6(a)]. The County and Department Staff object to this demand as unnecessary in light of others to which they have not objected. I agree with them and therefore strike this demand.

The Staff and the County did not object to demands that they produce for the Town all documents relating to considerations concerning siting of solid waste management facilities in the vicinity of airports, specifically relating to aircraft and public safety concerns, as well as all documents relating to considerations concerning the risks of bird strikes for helicopters, fixed-wing turbojets, and fixed-wing piston-type aircraft. Except as noted below, compliance with these demands is adequate to meet the Town's requirements for pre-hearing preparation.

Beyond that, the hearing shall not be concerned with the proper classification of the helicopters for purposes of 6 NYCRR 360-2.12(c)(3). That question is relevant only to whether the landfill would comply with the siting restriction and therefore whether a variance is required. As confirmed by Mr. Bergen, the assistant commissioner for hearings, Deputy Commissioner Sterman has already determined that a variance application must be submitted and that the County must demonstrate at the hearing why the variance should be granted.

The Department Staff objects to the Town's demand that it produce all documents concerning the substitution in the Part 360 restriction of the word "turbine-powered" for "turbojet" in reference to aircraft protected by that restriction. I agree with the Town that these documents could provide information relevant to the aircraft safety issues to be addressed by the hearing, or at the least could lead to other documents that would be relevant. Also, the Staff indicates that this information would be available from its central office files. The request is narrowly written and there appears to be no undue burden in Staff's securing this information, which at any rate would not be privileged. Therefore, the Town's request is affirmed.

The Town requests of the Department Staff and the County all documents relating to the Round Lake Airport, and/or relating to the potential preliminary landfill site considered by the County in the Town of Stillwater. (Town's Initial Demand of the Department, p.3, para. 4; Town's Initial Demand of the County, p.4, para. 5.) The Department Staff and the County object to these demands as requesting information that is outside the scope of issues for adjudication and therefore irrelevant.

The project application states that a site in Stillwater was excluded from further consideration after a determination was made in conjunction with DEC, the Federal Aviation Administration (FAA) and the National Guard that a 10,000-foot setback would be appropriate for the Round Lake Airport based on the use of turbojet helicopters by that facility. The Town contends these same types of helicopters have been used at the Heber Airpark and therefore that these documents could be relevant to the aircraft safety issue to be litigated here. I agree generally with the Town; however, its request is too broad. The Town shall therefore modify its request to limit it to documents related to the determination to exclude the Stillwater site from those under preliminary consideration by the County, including all documents stating the views of the County, DEC and FAA on this issue.

During the course of our conference call the parties agreed that, to narrow their requests, all demands for documents bearing on "aircraft safety" would be reframed in terms of "helicopter safety." That stipulation is hereby confirmed.

Noise

The Department Staff objects to the Town's request for all documents relating to the issue of the appropriate sound level decay rate to be applied to outdoor sites in general and to the proposed landfill site in the present case. (Town's Initial Demand of the Department, p.5, para. 9.) Separately, the Town demands all documents relating to, used to evaluate, or including analysis or testing concerning appropriate noise decay rates in general. (Town's Initial Demand of the Department, p. 6, para. 11(c).)

Department Staff considers these demands overbroad and says that at the least they should be limited to landfill cases and have a specified timeframe. In light of these objections, the Town said it could modify these demands to limit them to documents produced by DEC during the last 10 years and concerning what DEC considers to be an appropriate decay rate.

I agree with Staff that, as written, the demands are overbroad. They are, in effect, a fishing expedition through the Department's case files, making the Department a research arm of the Town. I also note that the dispute over appropriate decay rates concerns the Town and the County, who have conflicting expert offers on this point. The Department has not itself recommended a decay rate and does not even propose to present a witness on this issue.

In light of this, the Town's demand must be limited to any official Department guidance now in effect concerning use of decay rates in calculating noise impacts, as applied to landfill applications or any other matters before the Department. Whether or the extent to which such guidance exists should be easily confirmed with the Department's central office, placing a minimal burden on Staff.

Miscellaneous

The Town objects to the County's demand for all documents prepared by the Town regarding the Town of Northumberland landfill off of Peters Road with respect to noise impacts, bird investigations and aircraft safety. (County's Demand of the Town, p. 5, para. 8.) (Demands for documents concerning hydraulic conductivity, soil permeability and the potential for contaminant migration have been withdrawn.)

The Town says these documents are irrelevant since the Town's landfill was more than 3,000 feet away from the County's proposed landfill and, at any rate, was closed and capped in late 1992, while turbine-powered helicopters have been using the Heber Airpark only since February, 1993.

I affirm the County's demand since it is reasonably limited to documents prepared by the Town and since the information they contain could be relevant to this proceeding. On the other hand, a reasonable time limit needs to be placed on this demand, and therefore I direct that it be limited to documents produced within the last 10 years. The Town doubts whether there any documents responsive to this request, but the Town needs to verify this by review of its files.

The Town also objects to the County's demand for all documents provided to the Town by members of the public relating to the northern harrier, aircraft safety, soil or groundwater conditions and noise levels at or in the vicinity of the proposed County landfill site since January 1, 1989. (County's Demand of the Town, p.6, para. 15.) The Town contends this demand is overly burdensome and says that at the least it should be limited to documents addressed to the Town (as opposed to documents on which it was merely copied). While I recognize the demand is quite extensive, there is no question these documents could be relevant to the hearing issues or at least lead to others that could be. The County has agreed to accommodate the Town by inspecting the documents at the Town offices, or at the offices of its attorney, and excluding newspaper articles from its request. These are reasonable restrictions and, with them incorporated to the demand, I affirm the County's request.

Directives to the Parties

The parties requested an opportunity to revise their demands consistent with these rulings. Since the rulings resolve all discovery disputes that were brought to my attention before and during our call, this revision should eliminate the need for formal motions for protective orders. Also, no other discovery should be required except perhaps in relation to the County's request for an airport separation variance, which is now expected to be filed and distributed during the week of November 6, 1995.

All future discovery demands shall be considered "late requests" pursuant to 6 NYCRR 624.7(c) and therefore require my permission prior to service. In granting or denying permission, I will consider whether the late submittal is warranted, since discovery cannot proceed indefinitely.

Again, I encourage the parties to cooperate on the establishment of discovery deadlines and parameters, and to resort to the formal process in the Part 624 regulations only to the extent your informal efforts with each other are not successful.

Finally, I acknowledge receipt of Ms. Gura's October 27, 1995, letter, which sets out a proposed schedule for the hearing. On the issue of pre-filing testimony, I would like a call with the parties' counsel to discuss how cross-examination and rebuttal testimony would be handled under your proposal. You should be prepared to explain these matters to me so I can weigh your proposal against the pre-filing timetables and procedures I have used in other cases.

Because of the poor service offered by the state's phone system, resulting in disconnections during our recent calls, future conference calls that I want established shall be set up by the Applicant, who shall also bear their cost. In line with this, I want a conference call established as soon as possible to discuss the agreements in Ms. Gura's October 27 letter. I am available throughout the week of October 30, 1995, but will require some advance notice prior to the call being placed.

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
October 27, 1995

TO: Attached Service List

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