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Waste Management of New York (Towpath) - Ruling 3, March 7, 2001

Ruling 3, March 7, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of
WASTE MANAGEMENT OF NEW YORK, LLC
for permits to operate a solid waste management
facility, the Towpath Environmental & Recycling
Center, in the Town of Albion, Orleans County.

(DEC Application No. 8-3420-00019/00005)

RULING OF THE
ADMINISTRATIVE
LAW JUDGE

Background

Waste Management of New York, LLC ("the Applicant") proposes to expand the closed Orleans Sanitary Landfill facility at 3511 Densmore Road in the Town of Albion, Orleans County. Issues for adjudication exist with regard to the hydrogeologic investigation conducted as part of the Part 360 landfill application, the reliability of the conclusions in the Applicant's hydrogeologic report, the effectiveness of the Applicant's environmental monitoring plan, and the ability to monitor and remediate any escape of leachate from the landfill. These issues were raised for adjudication in light of offers of proof by the Towns of Albion and Murray, which have secured intervenor status in this proceeding. As indicated on page 17 of my issues rulings of December 31, 1999, the main hydrogeology issue concerns the requirement of 6 NYCRR 360-2.12(c)(5) that "new landfills must not be located in areas where environmental monitoring and site remediation cannot be conducted."

According to a schedule established by agreement of the parties, the Applicant has pre-filed its direct case on the hydrogeology issues. By papers dated February 28, 2001, the Town of Murray moved to strike certain portions of the direct testimony of Jonathan Howland, one of the Applicant's witnesses. The Applicant opposed the motion in a letter dated March 5, 2001.

Position of the Town of Murray

Murray objects to portions of Mr. Howland's testimony on various grounds including hearsay, relevance and unfair prejudice.

Position of the Applicant

The Applicant claims that the Town's objections lack merit and that the testimony should not be stricken.

Discussion

Murray objects to two portions of Mr. Howland's testimony: (1) question and answer 13, concerning whether there have been any releases from Part 360 landfills since the Part 360 regulations were revised in 1988; and (2) the last sentence of the testimony, which reads as follows:

"The entire primary liner system could somehow fail catastrophically and the remaining secondary liner system would meet the federal Subtitle D requirements for landfill liner design."

Murray objects to these portions of Mr. Howland's testimony on the basis of relevance. This objection is well-founded. Murray is correct that whether any landfill constructed in accordance with Part 360 regulations has ever leaked, and whether this landfill would meet federal requirements for landfill liner design, are not issues of material fact to be adjudicated in this proceeding.

The issues that we are adjudicating concern the ability to detect, monitor and remediate releases that might occur from the landfill, not the likelihood of a release actually occurring. Whatever the safety record of landfills constructed under the new Part 360 regulations, those regulations still require that these landfills not be located in areas where environmental monitoring and site remediation cannot be conducted. The monitorability of a site depends in part on the ability to characterize groundwater flow and thereby locate appropriate monitoring points, which in turn relates to the quality of the Applicant's hydrogeologic investigation and the reliability of the conclusions in its hydrogeologic report. [See issues rulings at page 17.]

Striking those parts of the Mr. Howland's testimony that do not address the hydrogeology issue as identified in my rulings, as proposed by the Town of Murray, will help maintain the hearing's focus. As Murray notes, the Department's permit hearing regulations require that all evidence submitted must be relevant [6 NYCRR 624.9(a)(1)], and, as the assigned administrative law judge, I have the power to preclude irrelevant testimony [6 NYCRR 624.8(b)(1)(x)].

Murray also objects to Mr. Howland's answer to question 13 on the basis of hearsay, since the answer states that it is based on Mr. Howland's recent discussions with DEC technical staff. The hearsay nature of the answer is not an incurable problem, since any related prejudice could be cured by having Mr. Howland identify the staff members with whom he spoke (and, if necessary, having them take the stand for cross-examination) and by having DEC produce the environmental monitoring data of the 38 landfills referenced in Mr. Howland's testimony. Because the answer to the question is irrelevant to the identified issues, this would be an unproductive endeavor, and striking the testimony is the more efficient way to proceed.

Murray's point about unfair prejudice or confusion of issues in accepting the disputed testimony is also well-taken. The clear implication of the testimony is to diminish monitorability by emphasizing points not relevant to the issue, such as the safety record of landfills built under the current regulations and the anti-leak protections afforded by their double liners. The ability to monitor and remediate depends upon a proper understanding of the subsurface environment in which the landfill is located, working from the legal presumption that a release may occur, because if no release were possible, there would be no reason for the monitorability requirement in the first place.

Ruling

The Town of Murray's motion to strike is granted. The disputed portions of Mr. Howland's testimony will not be considered, and there is no need for the other parties to respond to them.

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
March 7, 2001

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