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Waste Management of New York (Towpath) - Ruling 4, March 29, 2001

Ruling 4, March 29, 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 concerning the ability to detect, monitor and remediate releases that might occur from the new landfill, especially in light of past landfilling at the site location. The parties have been directed to pre-file their direct testimony on these issues: the Applicant first, followed by the other parties (DEC Staff and the Towns of Albion and Murray). The Towns' objections to certain portions of the Applicant's pre-filed testimony were addressed in my ruling of March 7, 2001. This ruling addresses motions to strike aspects of the pre-filed testimony of DEC Staff and the Towns.

Objections to the Pre-filed Testimony of DEC Staff

In papers dated March 20, 2001, the Towns object to the pre-filed testimony of DEC Staff witness Edward D. Kieda. Separate responses to the Towns' objections were filed on March 26, 2001, by DEC Staff and the Applicant.

As outlined in their papers, the Towns object to Mr. Kieda's testimony on various grounds including lack of witness qualifications, relevance and unfair prejudice. Having read Mr. Kieda's testimony, I agree with the Towns that certain portions of it are not relevant to the issues scheduled for adjudication. However, I find no basis to strike all of the testimony, since most of it is directed to monitorability considerations. In fact, the centerpiece of the testimony concerns how the design of the proposed facility relates to the ability to detect and identify releases that might occur. Mr. Kieda's experience as a DEC engineer reviewing landfill applications adequately qualifies him to testify on this issue, and the basis for his conclusions and the weight to be given to his opinions may be explored through cross-examination.

The only aspects of Mr. Kieda's testimony that I consider to be irrelevant (and therefore the proper target of a motion to strike) are the answers to questions 11 and 13. Question 11 concerns the measures in place to assure that the landfill is built in accordance with its design. Mr. Kieda's answer discusses the supervision of landfill construction by DEC Staff and an independent engineer, and notes in particular the Part 360 requirement of a construction quality assurance/construction quality control plan. This testimony does not relate to the hearing issue; in fact, issues proposed by the Towns regarding construction quality assurance and control were explicitly eliminated from further consideration on pages 39-41 of my December 31, 1999 issues rulings. At this point in the proceeding, it is presumed that, if the project is approved, its design will be realized. What is open to inquiry is the extent to which features of that design - - including the liners and leachate collection and control systems - - address monitorability concerns.

The answer to question 13 concerns the stability of the new liner system that would be on top of the now-closed Orleans Sanitary Landfill. Slope stability is not an issue at this point either; in fact, the Towns' proposed issue of structural stability (related to the placement of new waste atop the Orleans Sanitary Landfill) was explicitly eliminated in my prior issues rulings (see pages 44 and 45).

Objections to the Pre-Filed Testimony of the Towns

In papers dated March 21, 2001, the Applicant objects to portions of the pre-filed testimony of Town witnesses Matthew W. Becker and Mark R. Noll. Responses to the Applicant's objections were filed by the Towns on March 26, 2001.

As outlined in its papers, the Applicant objects to the Towns' testimony on the grounds that certain references and back-up calculations were not provided, and certain figures and illustrations were illegible or so small that details like colors, concentrations and contour lines cannot be discerned.

The Towns' papers reference efforts they have made since the testimony was filed, and even since the Applicant's motion was made, to address the Applicant's concerns. Until I can ascertain the current state of disclosure (which can be taken up during our scheduled conference call on March 30) I cannot determine what remedy may be appropriate for the alleged failings of the Towns. However, striking the Towns' testimony would seem to be unduly harsh, especially since, under the schedule we are following, where the Applicant and DEC Staff will be heard from first, it appears unlikely that the Towns' witnesses will testify next week.

There appears to be enough time to address remaining concerns by means of a technical conference of the parties' experts, to assure that all back-up information is provided in a form that the Applicant can work with. Also, it may well be, as the Towns state, that many of the references the Towns have not provided (including textbooks) are already in the Applicant's custody, because its experts have also relied on them. This could be determined in all likelihood without the Towns having to duplicate its references so the Applicant can be assured that they are the same as the ones they already have.

Of course, if the Towns are relying on references unfamiliar to the Applicant, and cannot produce them on request, this presents a problem in terms of prejudice the Applicant may encounter in challenging the Towns'arguments. Because of this, while I am not prepared to grant the Applicant's motion, I am not prepared to deny it either. Instead, I will defer ruling on the motion, at least until after our conference call on Friday. It would appear that the concerns raised by the Applicant's motion are ones that can still be resolved by an understanding between the Applicant's and the Towns' attorneys, and I urge them to pursue this possibility if they have not done so already.

Ruling

The Towns' motion to strike Mr. Kieda's testimony is granted, but only as to questions and answers 11 and 13. I defer ruling on the Applicant's motion to strike portions of the Towns' pre-filed testimony, with the intention of discussing the concerns underlying the motion during our March 30 conference call.

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
March 29, 2001

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