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Frie, Patricia and Warren - Ruling, March 11, 1994

Ruling, March 11, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 15, 25 and 71 of
the New York State Environmental Conservation Law (ECL) and Parts 661 and 666 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR),

- by -

PATRICIA FRIE
and
WARREN FRIE
and
138 OAKSIDE CORPORATION
Suffolk County

Respondents.

RULING ON MOTION TO AMEND COMPLAINT

DEC No. 1-4039

The Staff has moved pursuant to 6 NYCRR (former) 622.6 (applicable to this proceeding) to amend the complaint so as to add further allegations as against respondents Patricia Frie and 138 Oakside Corporation only concerning motor vehicle use in a scenic and recreational river area.

While amending the Complaint by adding new allegations and raising the requested penalty well over a month after the close of the hearing is, to say the least, not favored, yet I see that there are general allegations of motor vehicle use by an unidentified "Respondent" (there are three respondents) at paragraph "Eleventh" of the Second Cause of Action, 6 NYCRR 666.21(j) (concerning motor vehicle use in scenic river area) is cited at paragraph "Fourteenth" of the Second Cause of Action, and that there was some testimony concerning motor vehicle use at the site and at the property of others in the area of the site.

Accordingly, the motion to amend is granted.

That said, it does not appear that to deprive the affected respondents of an opportunity to challenge proof of the specific new allegations, especially where specificity could have the effect of increasing the penalties, would be in accord with due process.

Therefore, the hearing shall be re-opened on Wednesday, March 30, 1994 at 10:00 AM at the Region 1 offices.

Respondent Warren Frie need not but may attend.

A new date shall be set for the submission by all parties of post-hearing memoranda.

_____________/s/_____________
John H. Owen
Administrative Law Judge

Dated: Albany, New York
March 11, 1994

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