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Bonide Products, Inc. - Ruling, July 14, 2000

Ruling, July 14, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 33 and 71 of
the New York State Environmental Conservation Law (ECL), and Parts 325 and 326 of Title 6 of
the Official compilation of Codes, Rules and Regulations of the State of New York (NYCRR)

- by -

BONIDE PRODUCTS, INC.

Respondents

RULING ON CERTAIN PROCEDURAL MATTERS

Case Nos.
CO 1-19990622-770
CO 3-19990662-771
CO 4-19990662-772
CO 5-19990662-773
CO 6-19990662-774
CO 7-19990662-777
CO 8-19990662-775
CO 9-19990662-776

Procedural History

This matter was commenced by DEC Staff by a Notice of Hearing, Pre-Hearing Conference and Verified Complaint dated April 21, 2000. This complaint alleged 253 separate violations of the Environmental Conservation Law. The Respondent's Answer was served upon DEC Staff on June 22, 2000. The Answer included 8 affirmative defenses. DEC Staff responded with a Motion, dated June 23, 2000, requesting clarification of the affirmative defenses asserted by the Respondent in its Answer. The Respondent responded to DEC Staff's Motion with an Affirmation in Opposition to DEC's Motion For Clarification of Affirmative Defenses dated June 30, 2000.

DEC Staff replied to this Affirmation, without seeking the permission of the ALJ to do so, with a Reply Affirmation in Support of DEC's Motion for Clarification of Affirmative Defenses dated July 10, 2000. On July 14, 2000, Respondent sent an e-mail to both the ALJ and DEC Staff noting that 6 NYCRR 622.6(c)(3) does not permit additional responsive pleadings without the permission of the ALJ and if such permission were granted, the Respondent requested until July 19, 2000 to respond to DEC's Motion for Clarification of Affirmative Defenses.

Discussion and Ruling

First, the Respondent is correct that DEC Staff should have requested my permission before serving its Reply Affirmation in Support of DEC's Motion for Clarification of Affirmative Defenses dated July 10, 2000 (6 NYCRR 622.6(c)(3)). To date, no such request has been received or acted upon. However, in the interest of moving this matter forward, I hereby grant permission for this pleading. (I have been informed the attorney representing DEC Staff in this matter is unavailable today and time is of the essence). However, in the future the parties are directed to comply with the regulatory provisions regarding motion practice.

Second, the Respondent's request that it be allowed until July 19, 2000 to respond to DEC Staff's Reply Affirmation is hereby granted.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: P. Nicholas Garlick
Administrative Law Judge

Dated: July 14, 2000
Albany, New York

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