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Saratoga County Water Authority - Ruling 2, May 11, 1995

Ruling 2, May 11, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application of SARATOGA COUNTY WATER AUTHORITY for a Water Supply Permit pursuant to Environmental Conservation Law (ECL) Article 15, Title 15 and Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR) Part 601

RULING on Companies' Motion to Preclude Witnesses

File No. 5-4100-22-1

WATER SUPPLY APPLICATION NO. 8858

PROCEEDINGS

Under cover letter of Usher Fogel, Esq., dated April 28, 1995 (received in the Office of Hearings May 1, 1995), Saratoga Water Services, Inc. (SWSI), and the Luther Forest Corporation (LFC) (both collectively "the Companies") moved for an order precluding certain named persons from testifying on behalf of the Applicant (the Saratoga County Water Authority or SCWA), and other and further relief. The Applicant's answering papers were received May 8, 1995. DEC Staff did not take a position on the motion.

THE COMPANIES' POSITION

The Companies move to preclude Ted Willette, David Wallingford, James Garrison, Donna Bush, George Gasser, all members of the SCWA, David R. Meagher, Lawrence DeVoe, Marvin LeRoy, Richard Kukuk, Anita Daley and William Dake from testifying on behalf of the Applicant. The Companies note that the Applicant listed these persons in its Response to [the Companies'] Demand for Fact Witnesses, and categorized these persons within group (a), members of SCWA or named Saratoga County officials, and group (b), individuals residing within the service territory of the utility [SWSI] and receiving water service from the utility.

The Companies note that the proposed testimony of persons within group (a) relates solely to the Applicant's attempt to regionalize the water system for the entire county and their related planning efforts to acquire the system owned by the Companies. The Companies argue that such testimony does not address whether the acquisition will improve the physical operation of the existing system or enhance the efficiency or economics of the existing system. The Companies contend that issues concerning the planning by county officials and Authority members to operate and maintain a county-wide water system and their desire to regionalize the water system go far beyond the gambit of scrutiny and examination in this proceeding, which, the Companies argue, should be confined to examining the impact of the acquisition upon the system to be acquired. The Companies cite language in the December 1994 Rulings, the Interim Decision, the March 11, 1976 decision in the Matter of the Application of the Village of Florida (WSA 6283), and the court decision in the Matter of Ton-Da-Lay Ltd. v Diamond, 44 AD2d 430,435 (3d Dept., 1974), to support a contention that broader planning or regionalization issues should not be examined here. For these reasons, the Companies argue that the proposed testimony from the named persons within group (a) is irrelevant and immaterial, and should be precluded.

As for the named persons within group (b) [specifically, Ted Willette, David Wallingford, James Garrison, Donna Bush, and George Gasser], the Companies claim that they are not and have never been customers of SWSI, that the proposed acquisition will not directly affect them, and that they can provide no information regarding the existing operation of SWSI. Thus, the Companies argue that the proposed testimony of these persons should be precluded.

THE APPLICANT'S POSITION

Applicant argues that SWSI seeks "to stifle public comment," deprive DEC of receiving relevant material testimony, and eliminate the interest of the County and NY State Legislature in forming SCWA to provide a consolidated and unified water system throughout the area. Applicant identified the interests of the particular individuals named, among whom are town supervisors for the Town of Malta and towns nearby, a member of a local water authority that serves an area near that served by SWSI, a County Treasurer and Chairman of the Saratoga Lake Association Long Range Planning Committee, Chairman of the County Planning Board, a Commissioner representing the County and Saratoga Lake Protection and Improvement District, and persons who live in or near the service area. These persons would testify on planning for the Exit 12 Malta area including that served by SWSI, efforts to develop water supplies in and around this area and the need for water in areas nearby, the desirability of having a water supply under the auspices of Applicant, and the services they can render "in curing the many faults which have been testified to by residents at the legislative hearing." Applicant corrected the name of one person and noted that she lived in Luther Forest. Applicant cited the comments that a number of these persons made at the legislative session [before Judge Dickerson].

Applicant argues that to restrict testimony as proposed by the Companies would do a disservice to the area, the efforts of Applicant, and impair the consideration which should be given to the application. Applicant claims that the Companies wish to have the issue of public necessity decided in a "Star Chamber" proceeding.

DISCUSSION

It's noted that this proceeding has completed its public comment and issues conference phases and is now entering the adjudicatory phase. The adjudicatory phase is not an opportunity to receive additional public comment, nor to add parties.

The testimony that the Applicant wants to present and the Companies would like to have precluded purportedly relates exclusively to the "public necessity" requirement found in ECL 15-1503(2).

The test of public necessity is the public need for the particular water supply proposed, not necessity to the state as a whole. Ton-Da-Lay v Diamond, 44 AD2d 430, 435 (3rd Dept., 1974), apps dism 35 NY2d 789, 36 NY2d 856. It is the interests of those directly affected by the application, not those of people of the state generally, which the commissioner must take into account. (see Practice Commentary by Weinberg, ECL 15-1503).

Applicant is proposing to take over an existing water supply system, and provide service to a particular geographic area. Information on how Applicant expects to meet the needs of the service area would be relevant. The relevancy of some of the testimony mentioned (such as the needs of nearby areas) is not clear at this point. However, it would be premature to preclude it now without knowing exactly what testimony will be elicited and giving Applicant an opportunity to demonstrate its relevance. It similarly would be premature to make a blanket preclusion of the testimony of witnesses simply because they do not reside in the service area.

Since the testimony that will be offered may wind up being a mix of probative and non-probative information, the best and most efficient way of addressing questions of relevancy would be through the usual process of receiving and ruling on objections to particular questions during the hearing itself.

RULING

The Companies' motion to generally preclude testimony from certain individuals is denied. Determinations of relevancy and admissibility of particular testimony will be determined in the usual fashion at the time it is offered at the hearing.

_____________/s/_____________
Frank Montecalvo,
Administrative Law Judge
Albany, NY

Dated: May 11, 1995

To: Official Service List (5/10/95) attached
OFFICIAL SERVICE LIST - May 10, 1995

NAME OF HEARING: SARATOGA COUNTY WATER AUTHORITY; Application No. 5-4100-22-1; WATER SUPPLY APPLICATION NO. 8858
Article 15, Title 15 (Water Supply)

APPLICANT: SARATOGA COUNTY WATER AUTHORITY c/o
Tabner, Laudato and Ryan
26 Computer Drive West
Albany, New York 12205
attn: John Tabner, Esq.
FAX 518 459-9165; PHONE: 518 459-9000

STAFF : DEC Region 5 c/o
Paul Van Cott, Esq., Assistant Regional Attorney
New York State Department of Environmental Conservation Region 5, Route 86 - P.O. Box 296
Ray Brook, New York 12977-0296
FAX 518 897-1394; PHONE: 518 897-1227

INTERVENOR - Saratoga Water Services, Inc. & Luther Forest Corporation c/o
Roland, Fogel, Koblenz and Carr, LLP
1 Columbia Place
Albany, NY 12207
attn: Usher Fogel, Esq.
FAX 518 434-3232; PHONE: 518 434-8112

ALJ:
Frank Montecalvo
Department of Environmental Conservation, Office of Hearings
50 Wolf Road, Room 409
Albany, NY 12233-1550
FAX 518 485-7714; PHONE 518 457-3468

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