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Saint Lawrence Cement Company, LLC - Ruling 2, August 4, 2003

Ruling 2, August 4, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of St. Lawrence Cement Company, LLC
for permits to construct and operate a cement manufacturing facility
in the City of Hudson and the Town of Greenport, Columbia County

Ruling of the Administrative Law Judges
Discovery

DEC No. 4-1040-000111/00001

Introduction

During the status conference held on July 25, 2003 in the Department's offices, Mr. West, on behalf of St. Lawrence Cement, moved to compel intervenors Hudson Valley Preservation Coalition (HVPC) and Friends of Hudson (FOH) to provide to the applicant all the information concerning their planned noise monitoring, including the applicable protocol and access by SLC representatives to observe such monitoring. After argument by the participants on this motion, the ALJs reserved decision and invited memoranda to be submitted by July 29, 2003. On July 29, 2003, letter briefs were submitted by Ms. Marciano on behalf of SLC and by Mr. Baker, on behalf of FOH and HVPC.

Position of the Parties

The intervenors objected to the applicant's motion on the grounds that there was no precedent for the Department to order such access to "the development of an intervenor's affirmative case." Mssrs. Gerstman and Baker maintained that SLC would have access to the protocol and related documents as part of the discovery process once the monitoring/testing was concluded and as part of the pre-filed testimony that is to be filed on October 1, 2003. Moreover, counsel for the intervenors argued that SLC would have ample opportunity to cross-examine the intervenors' noise expert during the hearing scheduled for the week of October 20, 2003.

SLC countered that its testing was subject to observation by DEC staff and therefore it was appropriate to allow the applicant to observe any testing conducted by the intervenors. ALJ Goldberger inquired of the parties as to why this type of situation would be handled differently than it was in past rulings in landfill matters such as Saratoga County Landfill, 1998 WL 1785364 and Oneida-Herkimer Solid Waste Mangement Authority, 2002 WL 974334, in which the ALJ directed that all parties be permitted to observe on-site testing. The intervenors said it was because the noise monitoring would not take place on SLC property. Mr. Baker also raised concerns regarding the possibility of sabotage of the noise monitoring if the location and time of testing was made public in advance.

Discussion and Conclusion

Upon review of the regulations and precedent and consideration of the parties' arguments, we have concluded that we have no basis in these circumstances to order the intervenors to provide access to the applicant to observe their noise monitoring. Accordingly, we deny the applicant's motion insofar as it seeks access to the noise monitoring. The intervenors are to provide SLC with the results of their testing and the materials related to these activities such as protocols and methodology after the observations are complete and in accordance with the discovery schedule developed at the July 25 meeting.

Section 624.7(c)(4) of Title 6 of the New York Compilation of Codes, Rules and Regulations (NYCRR) provides that when access to the real property in the custody or control of another is sought for the purpose of conducting sampling, drilling, or testing, all parties must be given an opportunity to observe and take split samples. Despite SLC's interpretation that this language is not limited to property owned or controlled by a party, it would appear that this regulation does relate to the property of one of the parties - in most cases that of the applicant. The distinction between § 624.7(b)(3) and § 624.7(c)(4) is not the ownership/control of the subject parcel but rather the nature of the testing involved. Section 624.7(b)(3) specifically notes that the inspection of property can be done "except that drilling and other intrusive sampling and testing is not provided as of right." In this matter, the intervenors did not require or seek the ALJs' permission to perform this testing. We understand that the only reason that it was the subject of our meeting was due to scheduling issues.

We have been unable to find any past permitting matters in which parties were required to provide access to their investigations at this stage when they were not performed on the location of the project site. This testing will not occur on property belonging to the applicant. While staff may have been present during SLC's investigations, the intervenors were not invited to participate. We assume that SLC invited staff's participation during those investigations as staff represents the impartial regulatory authority and their presence would be helpful to short circuit any errors or misunderstandings as to what was needed to complete the application and DEIS.

This ruling will not result in injustice or undue hardship because the applicant will have access to the results and to the intervenors' noise monitoring protocol, and will be able to subject them to scrutiny in cross-examination. Section 624.8(e) requires that prefiled testimony include technical information such as ". . . data, tables, protocols, computations, formulae, . . ." and other information that was relied upon in developing the testimony.

With respect to the intervenors' request for site access for their noise expert, SLC had initially consented to this demand. If that status has changed, we direct SLC to provide such access. The intervenors are to consult with counsel by no later than August 8, 2003 to set up this visit. Of course, because this inspection is to take place on SLC's property, its representatives along with those of the staff and the intervenors are entitled to be present during the inspection.

__________________/s/____________________
Helene G. Goldberger, Administrative Law Judge

_________________/s/_____________________
Maria E. Villa, Administrative Law Judge

August 4, 2003

TO: Service List
James T. McClymonds, Chief Administrative Law Judge
Louis Alexander, Assistant Commissioner, OHMS

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