Sour Mountain Realty, Inc. - Ruling on Motions for Protective Order, September 16, 1996
Ruling on Motions for Protective Order, September 16, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the applications
for permits to surface mine rock,
and related activities pursuant
to the Environmental Conservation
Law Articles 3, 8, 15, 17, 19
23 & 70 in Fishkill, Dutchess
County, (Appl. #3-1330-47/6-0) by
Sour Mountain Realty, Inc.,
RULINGS ON MOTIONS
FOR PROTECTIVE ORDERS
Motions by the Applicant
The Applicant seeks an order vacating the demands for discovery as amended on September 3, 1996 of Scenic Hudson, Inc., Scenic Hudson Land Trust, Inc., and the New York New Jersey Trail Conference, Inc., ("Scenic Hudson") in paragraphs 1,3 (excluding 3[j]),8,10,11,13 and 34 only where it repeats 3. The Applicant objects essentially because the demands are beyond the scope of the disclosure per CPLR . 3101(a),(b) and (c); because the demands are not material or necessary and because, among other things, the extremely detailed and extensive financial information sought, if any exists, would cause unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. Paragraph 1 asks for land costs for the quarry; Paragraph 3 in pertinent part essentially seeks itemized capital and operating costs for certain time periods as has occurred and as estimated for the future, including revenue projections, among other things; paragraph 8 seeks production estimates, customer lists, competitor lists, their price lists and other market data; paragraph 10 asks the Applicant and their consultant Mr. Webster for primarily their documented history for quarry ownership transfers over the last ten years; paragraph 11 asks for data on market projections; paragraph 13 seeks the Applicant's economic impact due to the delays in the application process and paragraph 34 in general seeks all other data on the economic benefits of the quarry.
Scenic Hudson opposes the Applicant's motion for a protective order because it believes certain of the Applicant's business information would be factors in the issue of visual impacts. The Commissioner described the visual issue on page 10 of the Interim Decision as:
"Whether the adverse visual effect of the proposed quarry when viewed from Routes 9 and I-84 or from other adjacent lands should be mitigated beyond that proposed by the February 6, 1996 draft permit condition, and, if so, how."
The Commissioner further states on page 13 within paragraph e), in part:
"... The question of `need,' of itself, is not an adjudicable issue. However, need is a factor in weighing the impact of unmitigatable adverse environmental impacts against economic, social, and other essential considerations. Thus, when considering the visual impact and noise issues, it is appropriate to compare impact mitigation alternatives with their relative economic impacts. ..."
Accordingly, relative financial data, e.g. the cost of mitigation, rather than common and/or fixed cost data, are appropriate. Scenic Hudson's discovery request for comprehensive financial data is not material or necessary and, without further discussion, the motion for a protective order is granted and it is so ordered as requested.
Scenic Hudson's motion dated September 11, 1996 precluding the Applicant from advancing certain economic data at the hearing would be entertained when specific data is offered.
Motions by the Department Staff ("Staff")
The Staff seeks a protective order denying disclosure sought in paragraphs 1, 2, 3, 4 and 22 of the Applicant's discovery request dated August 16, 1996 and as amended on August 27, 1996 claiming irrelevance. Paragraph 1 seeks any final or other land sales contacts between the State and Scenic Hudson in the vicinity of the proposed quarry; paragraph 2 seeks all records relating to proposed or potential land acquisitions in the vicinity of the proposed quarry; paragraphs 3 and 4 asks for records of current and future uses and plans of the Scenic Hudson land in the vicinity of the proposed quarry and paragraph 22 expands paragraphs 3 and/or 4 to seek information specifically for all-terrain vehicles. The Applicant initially sought discovery and now opposes the motion for a protective order as a potential conflict of interests exists within the Department since public statements have been made by Department's executives announcing certain land purchases from Scenic Hudson. As I noted below under Motions by Scenic Hudson, the Applicant claims a change of land ownership adjacent to the proposed quarry may come with attendant changes in both land use and the predicted visual and noise impacts. In light of the issues as framed by the Commissioner, the material requested may be relevant and Staff's motion is denied.
The Staff seeks a protective order denying disclosure of standards for noise and visual impacts for general mining projects as sought by the Applicant in its discovery request at paragraphs 13, 14, 23 and 24. Staff finds disclosure would be extremely burdensome among other things unless limited to only the records reviewed or relied on by Staff. However, I believe the material requested may effect the adjudication and determinations such as, among other things, assessment of the impacts being minimized to the maximum extent practicable. Staff's motion is denied.
The Staff seeks a protective order denying disclosure sought by Scenic Hudson in their Combined Discovery Demand [dated August 16, 1996 and amended September 3, 1996] in paragraphs 24 and 27 because the demands are overly broad as applied to Staff. Paragraph 24 essentially asks, among other things, the witnesses' ten year history with benched sided consolidated mines as regulated by the Department plus a similar five year history with any other regulatory agency. This does not seem like an overly broad task and the motion regarding paragraph 24 is denied.
The Scenic Hudson discovery demand at paragraph 27 prompts Staff's motion for a protective order because the material sought, primarily for reclamation plans, covers an unlimited period of time and with no limitations on site locations, e.g. within Region 3 or New York State. This demand is unreasonable as presented and Staff's motion is granted except that portion of the discovery seeking reclamation data from the specifically identified "Stissing" and "Falke" quarry applications.
The Scenic Hudson discovery demand at paragraph 25 seeks noise level limits data. Staff wants discovery limited to only data it used in the Staff review of the application and in the preparation of the draft permit. Because the material requested may, among other things, effect the assessment of the impacts being minimized to the maximum extent practicable, Staff's motion is denied.
Subparagraph (b) of the Applicant's section "A. RECORDS TO BE PRODUCED FOR INSPECTION" found on page 3 of their discovery request of August 16, 1996 prompted Staff to supplement their prior motions by letter dated September 5, 1996. Subparagraph (b) requests "all drafts of responsive records, whether final or otherwise" and Staff claims certain data relate to litigation strategy and seeks a protective order for documents Staff claims were prepared for litigation. I would have to consider each such document prior to acting on Staff's motion. The documents should be identified and listed on an cover letter with the documents or quality copies enclosed in a sealed envelop clearly marked as "confidential" and forwarded to this office as soon as practicable.
Motions by Scenic Hudson
Scenic Hudson seeks a protective order denying the discovery demand of the Applicant as amended on August 30, 1996 in, I presume, paragraphs A1 and A2. Scenic Hudson claims the documents sought are irrelevant and offers a proposed stipulation as an alternative. Scenic Hudson also claims the documents sought are for another matter where the Applicant has been refused under FOIL. The Applicant counters by claiming a change of land ownership adjacent to the proposed quarry may come with attendant changes of land use and the predicted visual and noise impacts. In light of the issues as framed by the Commissioner, the material requested may be relevant and Scenic Hudson's motion is denied.
Scenic Hudson also seeks a protective order denying the Staff's demands in paragraphs #'s 1 and 2 dated August 15, 1996. Staff's paragraph #1 asks for a witness list with an indication of the scope and content of their testimony and paragraph #2 asks for a list of evidence. Staff's demands do not appear to be "similar or identical" to the Applicant's demands noted above as Scenic Hudson claims and Scenic Hudson's motion is denied.
Scenic Hudson seeks a protective order from Applicant's demand identified as "... at page 3 thereof, numbered as A(a)," However, Scenic Hudson discusses the content of Paragraph A(b). Scenic Hudson's motion as identified by paragraph number is denied.
Scenic Hudson moves, in paragraph #11, for a protective order from Applicant's demands "with regard to drafts of expert reports and other such documents that are not protected by any privilege." Scenic Hudson contends such document are not material and are irrelevant, especially since the raw data, the final documents and their authors will be available for examination at the hearing. The Applicant counters by essentially saying the drafts may reveal the truth before whitewashed for the final drafts. Scenic Hudson's motion is granted and the order made accordingly as requested.
All other motions by Scenic Hudson are denied. No other motions for protective orders have been filed. Cross motions have been filed by the Applicant and Scenic Hudson.
Francis W. Serbent
Administrative Law Judge
Albany, New York
September 16, 1996
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