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Saint Lawrence Cement Company, LLC - Ruling 3, October 15, 2003

Ruling 3, October 15, 2003

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
STATE OF NEW YORK

In the Matter of the Application of ST. LAWRENCE CEMENT
Co., LLC for permits to construct and operate a cement
manufacturing facility in the Town of Greenport and City of
Hudson, County of Columbia

ALJ Ruling on
HVPC's Motion Re:
Discovery/Peclusion

DEC Application No. 4-2040-0001/00001

Background

This ruling concerns the October 2, 2003 motion of Hudson Valley Preservation Coalition (HVPC) to preclude St. Lawrence Cement Co., LLC (SLC) from introducing any evidence concerning noise projections or monitoring based on data collected at the Portland Cement plant located in Florence, Colorado.(1) In the alternative, HVPC proposes that SLC produce additional records related to the Florence, Colorado data as well as SLC's response to DEC's comments of September 24, 2003 on SLC's noise mitigation plan.(2)

During a conference call that was held on October 7, 2003 among the parties in which they were unable to resolve these issues, ALJ Villa was contacted to participate. During this discussion, Friends of Hudson (FOH) expressed its agreement with HVPC that the hearing on noise impacts be postponed until December to allow their expert to review the revised draft permit, the best management practices (BMP) for noise, and the Florence, Colorado plant data. SLC opposed this request but offered instead that the hearing be held the week of November 10, 2003. Department staff suggested that the hearing be held the week of November 17 and SLC stated that this was acceptable.

Because ALJ Goldberger was not available for this call, ALJ Villa deferred decision on any rescheduling and set October 14, 2003 as the deadline for responses by staff and SLC to the joint motion. The date for filing prefiled testimony was temporarily suspended.

Positions of the Parties

HVPC emphasizes that SLC made its first response to HVPC's January 10 and March 17, 2003 requests for discovery on noise on May 13, 2003 and continued to provide documents "as late as September 5, 2003." HVPC stresses that on September 23, 2003, counsel for SLC notified Mr. Gerstman that SLC intended to produce additional documents related to noise that the applicant planned to rely upon during the upcoming hearing. HVPC maintains that this production violated our July 25, 2003 ruling that established September 2, 2003 as the deadline for completion of discovery on noise. Based upon this position, HVPC returned the Portland Cement Plant data to SLC counsel. HVPC argues that it had no previous notice of SLC's intent to use this information or of its existence. HVPC maintains that it has spent much time evaluating the applicant's noise impacts based upon documents previously disclosed and this addition to SLC's case would prejudice the intervenors because there was insufficient time to analyze the data and respond. Short of preclusion, HVPC argues that the intervenors should be given more time to perform whatever discovery is needed with respect to the Colorado plant and this data.

In addition, DEC staff sent a letter dated September 24, 2003 to SLC with comments on its proposed noise mitigation plan. On September 29, 2003, SLC responded with a revised noise mitigation plan. HVPC argues that these changes are substantial and will likely result in changed permit conditions requiring additional time for intervenors to conduct discovery.(3)

On October 14, 2003, DEC staff served a letter response to the intervenors' joint motion for preclusion and/or discovery. Staff maintain that the Portland Cement Plant data produced by SLC will likely be useful to project noise levels at the proposed Greenport facility and therefore, should be included in the record on this issue. However, staff agree that there needs to be sufficient time for the parties to review the additional information as well as the revised noise BMP and the supplemental data related to the Colorado facility. Accordingly, staff suggests that prefiled testimony on noise be due on November 7, 2003 and the hearing for cross-examination and re-direct begin on November 17, 2003. In addition, staff request that additional discovery be permitted on any new information submitted by SLC since September 2, 2003 through October 31, 2003 and that the parties be directed to submit responses within 10 days of receipt of a discovery request.

On October 14, 2003, SLC served its response by electronic mail. SLC opposes the intervenors' motion arguing that the purpose of administrative adjudication is to establish a complete record upon which the Commissioner may render a determination. In addition, SLC contends that the intervenors are seeking to unnecessarily delay the administrative hearings by requesting additional disclosure prior to the hearings.

SLC explains that it requested the collection of data from the Portland facility to help its engineers in the design of the proposed Greenport project. SLC's counsel asked that the applicant's expert, Eric Wood, conduct sound modeling based upon the Portland data to confirm SLC's previously-produced sound measurements taken from the Catskill facility. SLC argues that it did not produce this data in discovery because it did not consider this information responsive to HVPC's discovery request and did not initially intend to use the data at the upcoming hearing. During the preparation of SLC's pre-filed testimony and "following September 16 and 19, 2003 discussions with Mr. Wood . . ." SLC decided to use the Portland data.

On September 23, SLC counsel contacted HVPC's attorney to alert him to this development. Mr. West also advised Mr. Gerstman that Mr. Wood is still working on the sound modeling for the purpose of projecting sound measurements around the proposed Greenport facility and the modeling and prefiled testimony "remain works in progress. . ." On September 24, 2003, SLC produced the data to HVPC and FOH which it contends is a supplemental production made in compliance with its ongoing discovery obligations. SLC cites to 6 NYCRR § 624.7(c) that requires prefiled testimony to include or be accompanied by a technical report that provides a full explanation of the information contained within it. In addition, this regulation requires that upon 10 days notice, the party submitting the prefiled testimony is subject to providing the raw data and supporting materials for the filing. SLC points to this regulation as support for its argument that has more than complied with regulatory requirements by supplying data in support of its testimony more than two weeks prior to the original October 10 deadline and three weeks prior to the hearing date of October 20, 2003. In these papers, SLC also recounts its efforts to resolve this dispute by providing data and compromising on the dates for the submission of prefiled testimony and the hearing.

Conclusion

The information that SLC seeks to include as part of the hearing record regarding noise measurements at the Portland facility appears to be very relevant to the subject of potential noise impacts at the proposed SLC Greenport facility. Accordingly, we will not agree to preclude its introduction. However, we agree with intervenors and staff that it is important that the parties have an adequate opportunity to assess this information and prepare for the upcoming hearing.

We have determined that prefiled testimony on noise will be due on November 7 and the hearing will commence on November 19, 2003.(4) In the event that we cannot conclude the hearing on November 21, the hearing will continue on November 24-26. Since the Portland information was produced on September 23 and further background data was supplied on October 10, the new scheduling provides a significant amount of time for review. With respect to the revised BMP and permit conditions, we believe this additional time also provides sufficient time for their consideration. And, in accordance with staff's suggestion, we extend the time for additional discovery on information produced after September 2, 2003 until October 31, 2003. Finally, parties are to submit responses within 10 days of receipt of a discovery request.

/s/
Helene G. Goldberger
Administrative Law Judge

/s/
Maria E. Villa
Administrative Law Judge

October 15, 2003
Albany, New York

1 Subsequent to HVPC's letter of September 15 in which Mr. Gerstman requested an extension to file prefiled testimony on the noise issue due to the production of additional noise data by SLC on September 12, 2003, the ALJs extended the time for this filing to October 10, 2003. On September 23, 2003, SLC informed HVPC that the applicant would be producing additional noise- related documents - the Portland Cement Plant data. On September 25, Mr. Gerstman wrote to this office asking for the relief that HVPC requests in its motion. On September 29, 2003, the ALJs denied this request finding it premature.

2 On October 10, 2003, SLC produced to HVPC background information related to SLC's collection of data and modeling related to the Portland Plant in Florence, Colorado as well as its revised noise mitigation plan in response to DEC staff's September 24, 2003 comments.

3 On October 9, 2003, DEC staff provided revised noise permit conditions.

4 ALJ Goldberger has a hearing on Long Island on the evening of November 17.

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