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CWM Chemical Services, LLC (RMU-2) - Ruling of the Facility Siting Board, March 18, 2021

Facility Siting Board Ruling, March 18, 2021

NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Applications for Permits pursuant to Articles 17,
19, 24, and 27 of the Environmental Conservation Law (ECL);
Parts 201-5 (State Facility Permits), 373 (Hazardous Waste
Management Facilities), 663 (Freshwater Wetlands Permit Requirements),
750 (State Pollutant Discharge Elimination System [SPDES] Permits) of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the
State of New York (6 NYCRR); Section 401 of the federal Clean Water Act
(CWA); and 6 NYCRR 608.9 (Water Quality Certifications),

by

CWM Chemical Services, LLC,

Applicant (RE: Residuals Management Unit - Two [RMU-2]).

DEC Permit Application Nos.:
9-2934-00022/00225
9-2934-00022/00231
9-2934-00022/00232
9-2934-00022/00249

NEW YORK STATE FACILITY SITING BOARD

In the Matter of an Application for a Certificate of Environmental
Safety and Public Necessity pursuant to 6 NYCRR Part 361 (Siting
of Industrial Hazardous Waste Facilities)

by

CWM Chemical Services, LLC,
Applicant (RE: Residuals Management Unit - Two [RMU-2]).

RULING OF THE FACILITY SITING BOARD

By motion dated February 16, 2021, Amy Witryol moves, pursuant to 6 NYCRR 624.8(d)(2)(v), for permission to file an expedited appeal from Administrative Law Judge (ALJ) Daniel P. O'Connell's February 3, 2021, Rulings on Motions to Strike Prefiled Direct Testimony (Rulings). Ms Witryol seeks to challenge several of the ALJ's Rulings. The prefiled direct testimony, ALJ's Rulings and motion involve issues in the above-captioned matter that have been joined by the ALJ and Facility Siting Board and fall squarely in the Facility Siting Board's jurisdiction pursuant to ECL article 27 title 11 and 6 NYCRR part 377.

CWM Chemical Services, LLC (CWM or Applicant) objects to the motion, arguing that the motion is untimely and impermissible under 6 NYCRR 624.8(d)(2). CWM argues that the motion is untimely because it can only be brought after the commencement of the adjudicatory hearing. In part 624 permit proceedings, the Department of Environmental Conservation considers motions for leave to appeal from an interlocutory ruling of an ALJ made at any time during the pendency of the matter, and does not limit such motions to those filed after commencement of the adjudicatory hearing. The Facility Siting Board finds no compelling reason to deviate from that practice. The case law cited by CWM applies court rules and the Civil Practice Law and Rules, not administrative regulations such as 6 NYCRR part 624. Moreover, the cases cited by CWM do not involve prefiled direct testimony which is entered into the adjudicatory hearing record by affidavit or further testimony of the witness. The ALJ's ruling is not simply an evidentiary ruling before trial, it is a ruling regarding testimony that often takes place during a hearing. Accordingly, CWM's objection to the motion is overruled.


Ms. Witryol's motion is granted and the appeal filed with the motion is
accepted as filed by the Facility Siting Board. Pursuant to 6 NYCRR 624.6(e), the parties have five (5) days from the date of this ruling to submit papers in support of or opposition to the appeal. No further responsive papers will be authorized.

Facility Siting Board

/s/
March 17, 2021
TIMOTHY P. WALSH, MPA, P.E., Designee-Chair for
BASIL SEGGOS, Commissioner
NYS Department of Environmental Conservation

/s/
March 17, 2021
SARA KOCH, Designee for
DR. HOWARD A. ZUCKER, Commissioner
NYS Department of Health

/s/
March 17, 2021
FRANK CIRILLO, Designee for
MARIE TERESE DOMINGUEZ, Commissioner
NYS Department of Transportation

/s/
March 17, 2021
LYNN MARINELLI, Designee for
ERIC J. GERTLER, Acting Commissioner
NYS Department of Economic Development and
President & CEO-designate of Empire State Development

/s/
March 17, 2021
CHRISTOPHER BAUER, Designee for
ROSSANA ROSADO, Secretary of State
NYS Department of State

/s/
March 18, 2021
JOHN F. BENOIT, Member

/s/
March 17, 2021
LEE SIMONSON, Member

/s/
March 17, 2021
A. SCOTT WEBER, Ph.D., Member

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