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Saratoga County Landfill - Ruling 4, January 2, 1996

Ruling 4, January 2, 1996

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.

RULING OF THE ADMINISTRATIVE LAW JUDGE

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

Background

By a letter of December 22, 1995, the Town of Northumberland, intervenor in this proceeding, moved for late discovery of the Applicant, Saratoga County, and of DEC Staff regarding the northern harrier. One of the hearing issues is whether the proposed county landfill will cause or contribute to the taking of the northern harrier, a threatened species, or the destruction or adverse modification of its critical habitat, in violation of 6 NYCRR 360-1.14(c)(3).

By letters dated December 28, 1995, the County and DEC Staff objected to this late discovery request.

Discussion

The parties agreed to a schedule for discovery, which was to be completed by the end of November. The Town now claims that on or about December 5, 1995, its attorneys realized that in circulating their demands to the other parties, they had mistakenly omitted any discovery request on the northern harrier issue. When the Town brought this to my attention during a conference call on December 18, I indicated that any new demand on this issue must be considered late and therefore would require my permission to be served. This was confirmed in my memorandum to the parties, dated December 19.

The Department's permit hearing regulations provide for certain discovery as of right [6 NYCRR 624.7(b)] and allow that any party may also submit late requests for discovery with the ALJ's permission [6 NYCRR 624.7(c)(3)]. While there are no regulatory criteria for when a late discovery request should be allowed, I would not authorize such a request absent some showing of special circumstances or indication why the request could not have been made in a timely manner. Here the Town's only reason for the late request is its own oversight. Apparently the Town had included a discovery request pertaining to the harrier in its own internal drafts, but somehow omitted it in the final demand that was sent to the County and DEC Staff. This mistake is inadequate to justify the relief the Town seeks at this late date.

Considerable time and effort has already been expended to meet the discovery schedule previously agreed to by the parties so that pre-filed testimony could be prepared. The parties should now be compiling that testimony and it would be prejudicial to DEC Staff, the County, and their attorneys to have to turn their attention to a broad new discovery demand when the Town had an adequate opportunity to present it in a timely manner.

Furthermore, it appears that DEC Staff has already acted reasonably with regard to the late request, agreeing to provide the Town with any discoverable documents located within its Region 5 files as well as any exhibits and relevant backup material used to prepare its pre-filed testimony, and urging the Town to submit Freedom of Information Law (FOIL) requests for documents that might be held elsewhere in the agency.

The Town indicates that it made FOIL requests of the likely records custodians on December 21. Frankly, these requests could have been made much earlier since FOIL operates separately from the hearing process, and the Town did not need party status or a certified issue to exercise its FOIL rights. I do not control the FOIL process, but nevertheless request that Staff act promptly on any demands received by the Town, given the time constraints of this hearing. The Town may want to forward a copy of this memorandum to any office on which a request has been made, confirming my desire that it be processed promptly.

I should also note that the Town's failure to secure formal discovery at this late juncture does not jeopardize its ability to present its own proof on the harrier issue. This issue was certified based on the Town's own offer regarding the various uses of the site and the surrounding area by this threatened species, as noted in my issues ruling. The ruling stated that the Town's offer included three expert witnesses, Mr. Munoff, a biology teacher and raptor researcher, John DeLisle, a resident of Mott Road, and Dr. Kenneth Able, a biologist and ornithologist at the State University of New York. The Town has confirmed that all three of these witnesses will appear at the hearing and therefore the Town's own case, as outlined at the issues conference, will be heard.

Beyond that, the County's own studies on the harrier have long been available, and the agreement between the County and the paper companies on harrier habitat management was released during the conference.

Ruling

For the reasons cited above, the Town's motion for late discovery on the harrier issue is hereby denied.

Addendum - - Scheduling Matters

I have received the County's letter of December 28 regarding the parties' mutual proposal for a complete hearing schedule. I had previously held open all dates through March 15 based on our understanding that the evidentiary record would be completed by then. With your proposal that we now postpone the airport separation issue and reserve it for the last week of March, I have re-adjusted my schedule to be available then. However, in doing so, I cannot be available on March 15, another reserved date. This is the only date I have to cancel but, if necessary, I could be available on March 11 instead. At any rate, I would hope that with the schedule you have negotiated, we would not need to use that whole week anyway. For your information, I plan to be out-of-state between March 15 and March 25.

As adjusted, the scheduled hearing dates are now as follows: January 30 and 31; February 1, 2, 13-16, 21-23, 27 and 28; and March 1, 5-8, 12-14, and 26-29. Other dates have been avoided by your mutual agreement due to unavailability of counsel or witnesses for the parties.

I hereby adopt the parties' agreement that there be one round of written closing statements to be submitted in writing after the evidentiary record is completed on all issues and transcripts have been distributed. As you have proposed, the date for submitting these closings will be fixed at the end of the hearing.

Also in accordance with the parties' agreement, the date for filing and service of pre-filed direct testimony is extended from January 12, 1996, to January 19, 1996, except with regard to the airport separation issue, as to which the deadline is extended to January 29, 1996, in light of the filing of the variance application only recently.

The County had proposed our conducting a conference call after the initial pre-filing deadline. The County may do so by setting up a conference call to be held after January 19 with me and counsel for the other parties. Mr. Alexander should call me in mid-January to confirm a time and date when I will be available for this call.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge
Albany, New York

Dated: January 2, 1996

TO: Attached Service List

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