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Scott Paper Co/Finch, Pruyn & Co - Ruling, May 19, 1994

Ruling, May 19, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application of Scott Paper Company -and- Finch, Pruyn & Company Inc.

RULING

The Town of Northumberland has moved for an order pursuant to 6 NYCRR 624.7(a) authorizing representatives of the Town to enter the proposed paper sludge landfill site to take soil borings, dig test pits, make field measurements and observe water levels in existing wells. This Motion is based on the opinion of Dr. Thomas F. Zimmie, a consultant for the Town, that the site is not suitable for the proposed project and a claim that extraordinary circumstances exist due to "the temporal relationship between the seasonally high water table and the issues conference".

The Applicant opposes the motion on the grounds that the Town does not have standing to seek discovery prior to the issues conference; that discovery prior to the issues conference could only be granted if there was a demonstration of "extraordinary circumstances"; that the coming of spring and a seasonal high water table is not an "extraordinary circumstance"; that the data regarding the hydrogeologic conditions at the site has been available to the Town since November 1991 and April 1992 and that the Town has not shown any need for testing.

6 NYCRR 624.5(f) provides that a potential party has the same rights it would be entitled to if its petition for party status were granted, therefore one does not have to wait until the issues conference to seek discovery. However, 6 NYCRR 624.7 (a) limits discovery prior to the issues conference to that which is afforded under 6 NYCRR Part 616 unless extraordinary circumstances are present.

The Town has a heavy burden to demonstrate its request is justified. Even if the Town had been granted party status and an issue concerning the soil and well data had been joined for adjudication, a request for intrusive access to the applicant's property would only be allowed with permission of the ALJ [6 NYCRR 624.7(c)(4)]. The instant request is further complicated by the fact that it is made prior to the issues conference when discovery as of right is further limited to documents available under 6 NYCRR Part 616 pursuant to 6 NYCRR 624.7 (a).

In this case, the Town has fallen far short of meeting its burden. Two years of well monitoring data and data from 32 soil borings and 28 test pits are available as part of the application. The Town has not identified any specific problem with the validity of this data. It only provides an affidavit from Dr. Zimmie which notes in general and conclusory terms that there may be a problem with the site. Given the extraordinary nature of the relief being sought, such a statement is wholly inadequate.

Moreover, even if a specific problem had been identified, the Town has not even begun to explain why its only avenue to argue that an adjudicable issue exists is by performing the testing itself. The Town's motion is denied.

_____________/s/_____________
William J. Dickerson
Administrative Law Judge
Albany, New York

Dated: May 19, 1994

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