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MB Recycling Unlimited - Interim Decision, January 11, 1993

Interim Decision, January 11, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233

In the Matter

- of -

the Alleged Violations of Articles 27 and 71 of the New York State Environmental Conservation Law and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- By -

MB Recycling Unlimited, Inc.

Project No. R1-5206-92-11

INTERIM DECISION

January 11, 1993

INTERIM DECISION

This Interim Decision is in relation to an appeal filed by Department Staff to the December 15, 1992 ruling of Administrative Law Judge ("ALJ") Frank Montecalvo which denied its motion for a protective order. The Staff have demonstrated that the failure to resolve this appeal on an expedited basis would be unduly prejudicial and therefore I have determined to entertain it at this time.

Given the strong public policy favoring the maintenance of exclusion from disclosure of materials entitled to the attorney-client privilege and attorney work product, the ALJ's determination to dismiss all such claims solely because they were submitted some three days late is an abuse of his discretion. While any untimely filing is not to be condoned, it is inappropriate for such a lapse to result in the disclosure of documents that are otherwise entitled to protection absent exceptional circumstances not present here.

The matter is therefore remanded to ALJ Montecalvo with instructions that he rule on the all claims contained in the Staff's December 17, 1992 filing on the merits. The ALJ will also determine whether any adjournment of the hearing is warranted pending the resolution of the issues related to the protective order.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 11th day of January, 1993.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
____________/s/____________
THOMAS C. JORLING, COMMISSIONER

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