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Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Ruling 4, June 27, 2002

Ruling 4, June 27, 2002


In the Matter

of the Application of the
for permits to construct and operate a solid waste landfill in Ava, Oneida County.


DEC Project No. 6-3024-00009/00007


These rulings address remaining objections by the Oneida-Herkimer Solid Waste Management Authority ("the Authority") and New York State Department of Environmental Conservation Staff ("Department Staff") to portions of discovery demands made on them by the coalition of Objectors seeking denial of the above-referenced permit application: the Town of Ava, the Town and Village of Boonville, the County and Town of Lewis, the Adirondack Communities Advisory League, the Harland J. Hennessey Post 5538 of the Veterans of Foreign Wars, the Charles J. Love D.S.C. Post 406 of the American Legion, and Veterans Defending Our Memorial Forest.

The Objectors' demands are dated May 24, 2002. By separate letters dated May 29, 2002, the Authority and Department Staff raised various objections to the demands, and these objections were discussed with me in a May 31 conference call with the parties' counsel that I later summarized in a June 3 memorandum. According to a schedule I established, the Objectors' counsel, Michael Gerrard, responded to the remaining objections in a June 6 letter, which was answered by a June 11 letter of the Authority's counsel, Louis Alexander, and a June 12 letter of Department Staff counsel Randall C. Young. Another conference call was held on June 20, allowing me to question the parties on their submittals.

At this point there are only two disputed provisions of the discovery demands, and both relate to the air quality issues that were certified for adjudication in the Commissioner's interim decision of April 2, 2002. Those issues are: (1) whether the predicted total maximum concentrations of PM10 resulting from operation of the landfill would exceed the national ambient air quality standard, and (2) whether the maximum predicted emission of the hazardous air pollutants vinyl chloride and acrylonitrile from the landfill would exceed state guidelines.

The Department's permit hearing procedures allow a party against whom discovery is demanded to make a motion to the assigned administrative law judge for a protective order, in general conformance with Section 3103 of the Civil Practice Law and Rules ("CPLR"), to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. Both the Authority and Department Staff seek protective orders in relation to parts of the Objectors' demands for documents bearing on the air quality issues.

Authority Motion

The Authority objects to having its air quality consultants review files of clients other than the Authority, which were not used or relied on for this project, for information in response to the Objectors' demands No. 24 and 27-35. The Authority claims that extending the inquiry in such a manner would make the demands overly broad, unduly burdensome and violative of the confidentiality that exists for communications between the Authority's consultants and those consultants' other clients.

In his June 11 letter, Authority counsel writes that he recognizes that documents that the Authority's consultants used, relied upon or reviewed with respect to the issues identified for adjudication are subject to discovery. Though the Authority is prepared to produce such documents, Objectors' counsel writes in his June 6 letter that he is seeking not only the documents on which the Authority has relied, but any documents on which the Authority should have relied, and which might yield emission projections different from those calculated in the application documents. Authority counsel counters that if the Objectors believe that there are other documents which should have been used, it is the responsibility of the Objectors' consultants to locate those documents themselves. The Authority says its consultants should not be obligated to review documents in other client files that were not used for this project.

Ruling: The Authority's request for a protective order is hereby granted. The Authority's production of all documents that its consultants used, relied on, or simply reviewed with respect to the air quality issues (even if these latter documents were not used or relied on) provides a more than adequate response to the discovery demands. As the Authority argues, it would be unduly burdensome for its consultants to have to review files of clients other than the Authority for information that was not used, relied on or even reviewed with respect to the issues in this proceeding. While this ruling is intended to clarify the Authority's discovery obligation in this proceeding, I should also point out that the definition of "documents" provided in the Objectors' discovery demand extends only to that information "kept, held, filed, produced or reproduced by, with or for" the Authority, so the type of information the Authority wants to protect is arguably outside the scope of the demand as written in the first place.

Department Staff Motion

Department Staff seek a protective order with regard to the Objectors' demand No. 21 for production of:

"All data and compilations, analyses and reports regarding data concerning emissions and concentrations of PM10, particulates generally, vinyl chloride, acrylonitrile, HAPs [hazardous air pollutants] generally, NMOCs [non-methane organic compounds] generally, VOCs [volatile organic compounds] generally, or landfill gas generally from landfills located in New York State outside of New York City that at any time since January 1, 1990 have accepted MSW [municipal solid waste]."

Characterizing the request as for all documents related to emissions, other than methane, from any upstate New York landfill for the last 12 years, Department Staff counsel says the request encompasses a large volume of material that is neither relevant nor material to this proceeding, and only by pure chance would any of that material have any relevance to the potential emission of vinyl chloride or acrylonitrile from the proposed landfill. Nor does Department Staff see how such information would be relevant to the hearing issue concerning PM10 because of the site-specific factors which bear on that issue. Emphasizing the broad sweep of the document demand, DEC Staff say it could be read to include all landfill-related air permit applications (including supporting documents) as well as any documents prepared by the Department in reviewing those applications.

In his May 29 letter, Department Staff counsel sought to limit the demand to those items reviewed or relied on by Department Staff in this matter. In his June 12 letter, Staff counsel requested that the scope of the demand be limited to documents related to emissions of acrylonitrile, vinyl chloride, and PM10 (the three air pollutants identified in the Commissioner's interim decision), documents indicating a relationship between the emission of landfill gas and emissions of acrylonitrile and vinyl chloride, and documents regarding NMOC emissions reviewed by Department Staff in relationship to this project.

In his June 6 letter, Objectors' counsel said that, by discovery of the Authority and DEC Staff, his clients are primarily seeking compilations and analyses of data and reports concerning landfill gas emissions and capture rate efficiencies in the possession of those parties, and would prefer to receive reports and analyses of data rather the data itself. However, he says he cannot reasonably narrow this discovery demand without knowing in what form data exists and what compilations, analyses and reports have been prepared regarding the data. In particular, the Objectors say they need to know what data is submitted to the Department regarding landfill gas emissions and capture rate efficiencies and what analysis is performed on that data by Department Staff and by facility operators and their consultants. To narrow their request, the Objectors suggest a technical meeting be held among the parties so that they can be better informed about what documents exist regarding landfill gas emissions. The Objectors are seeking discovery of the Authority and the Department in conjunction with library and Internet research now being conducted by Daniel Gutman, their air quality issues expert.

Ruling: A ruling on the motion for protective order is reserved pending the outcome of a technical conference between Department Staff and the Objectors. I hereby grant permission for such a conference, to be set up by Mr. Gerrard and held as soon as possible, subject to Department Staff's availability, but in no event more than two weeks from the date of this ruling. A meeting should not be necessary, since a telephone conference call should be sufficient. The conference shall involve counsel for the two parties, Mr. Gutman, and Department program staff familiar with how the data referenced in demand No. 21 is reported, maintained and analyzed. I want to stress that the conference is not intended as an opportunity for the Objectors to question Department Staff about its position in this matter. Nor should the conference be construed as a deposition of Staff's identified witness; in fact, that witness need not participate, since involvement of a knowledgeable records custodian should be sufficient. Again, the conference is intended only to narrow the scope of the disputed demand, helping the Objectors retrieve relevant, publicly available information while diminishing the burden of disclosure on the Department.

Department Staff maintain that if the Objectors could clearly articulate the types of information they want, no technical conference would be necessary. But that is what the technical conference is intended to accomplish - - a clear articulation of the types of information requested, based on knowledge of the types of information maintained by the Department.

In considering the relevance of the requested information, I note that the Applicant's analysis of air quality impacts is based on estimates of the amounts of various air pollutants that would be produced by this project and, for the pollutants derived from the waste mass itself, on estimates of gas collection efficiency. For instance, to emphasize the alleged conservatism of its emission estimates, the Authority's consultants say they are based on emission factors in the Environmental Protection Agency's AP-42 document, which, for total NMOCs, result in levels that are 10 times higher than those actually detected at existing landfills in New York State which are similar to this project. This is an assertion that the Objectors are entitled to probe through discovery of gas emissions reported to the Department. Also, to stress the alleged conservatism of the 80 percent gas collection efficiency anticipated by the Department, the Authority claims that efficiencies exceeding 90 percent have been reported for new gas collection systems. This also is a legitimate area of inquiry, if the Department has responsive information. [See Objectors' demand No. 25, for all documents concerning municipal solid waste landfill gas collection efficiency, to which Department Staff has not objected.]

Department Staff argues that a lot of the data requested by the Objectors is not relevant to the issues in this proceeding. However, while those issues concern only acrylonitrile, vinyl chloride and PM10, data may not exist for these particular pollutants, but only for the larger categories to which they belong. Even if some of that data is irrelevant and therefore not properly discoverable, it would appear the data would still be accessible under the state's Freedom of Information Law (FOIL), not only to the Objectors as a party to this permit proceeding, but to anyone with an interest in the information. Accepting that to the be case, Department Staff would be obliged, at a minimum, to make the data available for inspection, so that the Objectors may conduct whatever analyses they choose. The Authority has the burden of proof on the identified hearing issues, but the Objectors are entitled to use available data to question the alleged conservatism of the Authority's air impacts analysis, or to present an alternative analysis of their own. I accept Mr. Gerrard's representation that the Objectors are proceeding in good faith here, and not seeking merely to tie up Department resources in a pointless exercise.

It is expected that, with the involvement of Mr. Gutman and Department program staff, counsel for the two parties can narrow the scope of demand No. 21 in a manner that satisfies the Objectors' interest in getting relevant information, while minimizing Department Staff's burden in making that information available. Mr. Gerrard shall advise me of any agreement the parties reach resulting in a rephrasing of the demand. If no agreement is reached, Department Staff shall promptly renew its request for a protective order, at which point I will convene a status call among all the parties, resulting in a ruling on the motion.

The unresolved issues regarding Objectors' demand No. 21 on the Department should not affect the parties' anticipated compliance with the July 8 target date for production of all other documents as to which discovery demands have been made.

By: Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
June 27, 2002

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