Ramapo Energy, LP - Ruling on Motion and Protective Order, February 14, 2001

Ruling on Motion and Protective Order, February 14, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of CASE 98-F-1968 - Application filed by Ramapo Energy Limited Partnership for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a 1,100 megawatt generating facility in the Town of Ramapo, Rockland County.

RULING ON MOTION

AND PROTECTIVE ORDER

(Issued February 14, 2001)

ROBERT R. GARLIN, Presiding Examiner, and

SUSAN J. DuBOIS, Associate Examiner:

DEC STAFF'S MOTION

An important issue in this proceeding is whether and to what extent the proposed facility will adversely affect timber rattlesnake populations and habitat. After the application was filed, the applicant, Ramapo Energy Limited Partnership (Ramapo ELP), submitted four studies to the presiding examiner with requests that they be treated as confidential information. Each such request was granted. The four studies are (1) a timber rattlesnake field study (December 30, 1999); (2) a supplement to the field study (July 16, 2000); (3) an evaluation of the habitat protection value of Ramapo ELP's set-aside proposal (November 10, 2000); and (4) a year 2000 field study (December 28, 2000). The same information has been provided to the Department of Environmental Conservation (DEC); such information in DEC's possession would automatically be accorded confidential treatment.⁽¹⁾

On January 29, 2001, the examiners received from trial staff of the DEC (DEC Staff) a copy of a year 2000 field report for timber rattlesnake studies pertaining to a neighboring site for which Ramapo Mountain Land Company is seeking a mining permit (the "RMLC Report"). Accompanying the report was a motion by DEC Staff requesting that the RMLC Report, as well as Ramapo ELP's studies and underlying data, be included in the record subject to confidential treatment.⁽²⁾

DEC Staff's motion outlines a process by which information subject to confidential treatment could be distributed to certain parties. The proposal is as follows:

1. The definition of "confidential" would be consistent with ECL §3-0301(2)(r), which protects from public disclosure records that identify locations of habitats of endangered, threatened, or protected species.
2. Written requests for studies and data should be filed with the examiners, with a copy to DEC, identifying persons acting on behalf of the requesting parties who seek the information and demonstrating their need for access to it.
3. A "date certain" should be established, by which requests must be submitted.
4. Requesting parties should agree to follow procedures established by the examiners, or propose alternate procedures, to assure the information is not publicly released.
5. DEC would have 10 days after receiving an order granting access to studies and data to object or seek a protective order.
6. DEC would assume responsibility for providing the RMLC Report or any other confidential report or data in DEC's sole possession. Ramapo ELP should assume responsibility for providing reports and data concerning timber rattlesnakes in the Torne Valley area and other data relied upon by its experts, including information submitted in connection with the application.
7. Any testimony prepared using confidential information must be so marked, and delivered only to parties the examiners determine are entitled to receive such information.

In a response dated February 2, 2001, Ramapo ELP states that it agrees with most of DEC Staff's procedural proposal.⁽³⁾ The applicant would amend the proposal, however, to include a directive to DEC that it also to make available, to any party requesting access to the RMLC Report, the submissions Ramapo ELP has made to DEC.

DISCUSSION

As is pointed out in DEC Staff's motion, ECL §3-0301(2)(r) expressly authorizes DEC, "[n]otwithstanding the provisions of article six of the public officers law[⁽⁴⁾], [to] deny access to inspection of records which identify locations of habitats of species designated endangered pursuant to section 11-0535 of this chapter, protected pursuant to section 9-1503 of this chapter or any other species or unique combination of species of flora or fauna where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive." Although there is no corresponding provision in Article X of the Public Service Law (PSL), we conclude that the Siting Board has the authority to designate information about timber rattlesnake populations and habitats as "confidential" and to fashion suitable procedures to protect against public disclosure of such information.

PSL §160(4) states that the New York State Board on Electric Generation Siting and the Environment "shall be in the department of public service," and Public Service Law §4(1) contains the same language with respect to the Public Service Commission. Therefore, the statutory provisions in Article 1 of the Public Service Law, and Court decisions interpreting them, apply equally to the Commission and the Siting Board except to the extent that expressly different provisions have been enacted in Article X.

Although PSL §16(1) provides generally that "[a]ll proceedings of the commission and all documents and records in its possession shall be public records," the Court of Appeals has held that PSL §16(1) "does not foreclose restriction by the Commission of access to its proceedings when such restriction is necessary or appropriate for protection" of confidential trade information.⁽⁵⁾ Moreover, the Courts have recognized that enactment of the Freedom of Information Law has not vitiated public agencies' common-law privilege "to deny access to items . . . based upon a showing that disclosure would be highly detrimental to the over-all public interest."⁽⁶⁾

ECL §11-0535(1) authorizes DEC to designate species of wildlife as "threatened" if they "are likely to become endangered species within the foreseeable future throughout all or a significant portion of their range." The timber rattlesnake has been designated by DEC as a threatened species.⁽⁷⁾ Because the Legislature has authorized DEC to deny access to records that identify locations of habitats of threatened species, we conclude, accordingly, that giving confidential treatment to timber rattlesnake population and habitat information developed or obtained by Ramapo ELP and DEC for this PSL Article X proceeding is in the public interest.

PROTECTIVE ORDER

On the basis of DEC Staff's proposed process, Ramapo ELP's comments on it, and other considerations, we conclude and order, pursuant to 16 NYCRR §5.8(d), as follows:

1. Requests for confidential studies, data, and other information regarding timber rattlesnake populations and habitats (hereinafter referred to for convenience as "confidential information") shall be in the form of written interrogatories.⁽⁸⁾
2. A request for confidential information shall identify the persons acting on behalf of the requesting party who seek the confidential information and shall demonstrate such persons' need for access to it. Counsel for the requesting party shall also have access to confidential information that is released to the requesting party. The request must be accompanied by a signed written statement that counsel and the identified persons agree to abide by the terms of this protective order.
3. No deadline for requesting confidential information will be established unless or until a deadline for discovery in general is established by a subsequent ruling.
4. A proposed refusal by a party in possession of confidential information to provide such information to a requesting party, on the basis of this order, shall be raised in the form of a timely objection to an interrogatory.⁽⁹⁾ Parties will be permitted to respond in support of or opposition to objections in accordance with the Public Service Commission's rules of procedure regarding responses to motions.⁽¹⁰⁾
5. Where an item of confidential information is in possession of more than one party, a request for the item should first be addressed to the party responsible for its preparation or introduction. A request for an item of confidential information in the sole possession of one party must be addressed to that party. Confidential information released to a requesting party subject to this order may not be obtained through a discovery request served on the requesting party, and any such discovery request may be disregarded without objection.
6. All confidential information received subject to this order:
   1. Shall be maintained in a locked file when not in use.
   2. Shall not be copied or reproduced.
   3. Shall not be set forth in testimony or exhibits to be presented on the record in this proceeding unless authority for such is separately sought from the examiners and granted subject to whatever conditions they deem proper.⁽¹¹⁾ A party proposing to include confidential information in the record shall demonstrate a need to do so.
7. Any work products or other documents developed by a requesting party from confidential information received subject to this order will also be treated as confidential, and the same treatment will be accorded the work product or such other documents as is accorded the confidential information itself.
8. A requesting party's use of confidential information received subject to this order shall be in accordance with the terms of this order, regardless of the manner in which it may be used, including without limitation notes, memoranda, pleadings, interrogatory responses, transcript tapes, original documents, direct or responsive testimony, examination of witnesses, exhibits or briefs.
9. Confidential information received subject to this order shall be returned by a requesting party to the party from whom it was obtained when the requesting party's direct case or, if applicable, rebuttal case, is filed, to the extent that the requesting party's direct (and, if applicable, rebuttal) testimony and exhibits do not rely on confidential information. All confidential information relied on by a requesting party in the preparation of testimony and exhibits shall be returned to the party from whom it was obtained when the requesting party files its post-hearing brief or, if applicable, reply brief, unless the requesting party applies for permission, and shows cause why it needs, to retain the confidential information for a specific additional period of time.

The provision of this order that confidential information may not be set forth in testimony or exhibits without permission being obtained separately is intended to minimize the extent to which we must resort to sealed exhibits and testimony and closed hearings to prevent the public dissemination of confidential information. Ramapo ELP, DEC Staff, and other interested parties are urged to frame their testimony and exhibits concerning timber rattlesnake issues in terms of mitigation measures and associated certificate conditions that might be required, if doing so (while avoiding a discussion of confidential information) would be consistent with the development of a adequate record.

_____________/s/_____________
ROBERT R. GARLIN
SUSAN J. DuBOIS

¹ Environmental Conservation Law (ECL) §3-0301(2)(r).

² DEC proposes that confidential treatment be given to data and information in both physical and electronic forms.

³ Ramapo ELP disagrees with certain assertions in DEC Staff's motion that are not directly pertinent to the procedural proposal.

⁴ Known as the Freedom of Information Law, or "FOIL."

⁵ New York Telephone Company v. Public Service Commission, 56 N.Y.2d 213, 220 (1982).

⁶ Dunlea v. Goldmark, 54 A.D.2d 446, 449 (1976), aff'd 43 N.Y.2d 754 (1977).

⁷ 6 NYCRR §182.6(b)(5)(v).

⁸ See 16 NYCRR §5.3(a). The requirement that an interrogatory be served on all parties should be noted. The examiners shall also be served with copies of all requests for confidential information.

⁹ 16 NYCRR §5.3(e). The requirement that such an objection be served on all parties should be noted.

¹⁰ 16 NYCRR §3.6(d)(1).

¹¹ In accordance with this provision, the confidential information submitted for in camera review along with DEC Staff's motion is being returned to DEC Staff counsel.

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