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Hyland Facility Associates - Ruling 4, May 3, 1994

Ruling 4, May 3, 1994


In the Matter of

the Application of HYLAND FACILITY ASSOCIATES for Permits to Construct and Operate
an Incinerator Ash Monofill pursuant to Parts 360 and 420 through 423 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York


May 3, 1994

DEC Application No. 9-0232-3/1-0

On April 28, 1994, the Applicant moved for a protective order against the April 25, 1994 discovery request which had been made by the Allegany County Soil and Water Conservation District. The present correspondence is the ruling on the motion for a protective order.

The District requested six items of information, as listed in Mr. Sinclair's letter of April 25, 1994. As discussed in paragraph 10 of Mr. West's April 28, 1994 affirmation, the information requested in item 1 of the District's request has already been provided by the Applicant.

With regard to items 3 through 6 of the District's discovery request, the motion for a protective order is granted since counsel for the Applicant has affirmed the documents requested by the District in items 3 through 6 do not exist. In the process of discovery, a party is only required to provide things which are in that party's possession, custody or control (CPLR 3120).

Item 2 of the District's request is for "revised, typed, 1993 monitoring well logs for inclusion in the application that include all notations from the field logs in the remarks column." Based on paragraphs 11 and 12 of Mr. West's April 28, 1994 affirmation, typed logs containing all of the information on the field logs are among the documents which do not exist at present. Since the documents as such do not exist, they would not be something to which the Applicant would need to provide access as part of a discovery process. Accordingly, the motion for a protective order is granted with regard to item 2 as well.

The information which would be in the documents requested in item 2 is the same information which exists in the field logs, which have already been provided to the District. The significance of including or not including this information in the application, as stated in the District's April 25, 1994 correspondence, is not clear. The District and the Applicant may comment further on this question if they wish.

The protective order against items 2 through 6 of the District's April 25, 1994 request is being granted based on the non-existence of the requested documents, not based on the relevance or irrelevance of the requested information nor on the stage of the process at which they are being requested. Fact questions may be relevant to more than one regulatory issue. Newly-acquired information need not be excluded from review simply because it may be relevant both to issues that were remanded and to issues that have been decided in some manner.

Based on the types of evidence which were used extensively in the 1992-93 hearing, the field logs for MW-15 through 22 and the water level data requested earlier by CCAC may well be relevant to the issues of the variance from groundwater separation, slope stability, foundation analysis or possibly the soil materials issue as defined in the November 18, 1993 ruling. Some of the recent water level data were cited, but not included, in the Applicant's remand submissions.

A copy of the water level data from October 1992 to April 1994 and a copy of the field logs for MW-15 through 22 will need to be provided by the Applicant for the record, in the near future. It appears likely that this information will be cited in the May 16 and May 23, 1994 correspondence regarding the scope of the reconvened hearing and the hearing record should include the full set of this information.

At the present time, I am not requiring that the Applicant provide corrected copies of the stratigraphic profiles and other drawings cited in items 3 through 6 of the District's request. The significance of any changes which might be made in these documents to incorporate the new information may be argued in the May 16 and May 23 submissions. If the Applicant later decides to revise these documents, the other parties will be provided time to review the revised documents.

Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
May 3, 1994

To: All persons on 4/19/94 service list

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