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MB Recycling Unlimited - Ruling, January 8, 1993

Ruling January 8, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Articles 27 and 71 of the New York State Environmental Conservation Law, and 6 NYCRR Part 360 by

MB Recycling Unlimited, Inc.
Respondent.

RULING
(Motion to Amend Complaint; Motions for Adjournment)

Case No. R1-5206-92-11

PROCEEDINGS

On January 4, 1993, Department Staff appealed the ALJ's December 15 and December 21, 1992 Rulings regarding a protective order and/or reconsideration thereof, and moved that the undersigned adjourn the proceedings pending the Commissioner's determination of the appeal. On January 6, 1993, Respondent filed a memorandum opposing Staff's appeal, and in its cover letter opposed adjournment of the proceeding.

On January 6, 1993, Department Staff moved to amend the Complaint, and moved for an adjournment of the proceeding pending the determation of its motion to amend. On January 7, 1993, Respondent stated that it did not oppose Staff's motion to amend, acknowledged and accepted service of Staff's Amended Complaint, and filed an Answer to the Amended Complaint. Respondent opposed adjournment of the proceeding.

RULINGS

  1. Staff's motion to amend the complaint is granted. The Amended Complaint enclosed with Staff's motion papers and Respondent's Answer to the Amended Complaint are hereby substituted for the original Complaint and Answer filed herein.
  2. Staff's motions for adjournment are denied.

The ruling above renders moot Staff's request for adjournment pending determination of its motion to amend the Complaint.

Justification for an adjournment, over Respondent's objection, pending the Commissioner's determination of Staff's Appeal, was not presented. Respondent claims delay of the proceeding would cause it undue hardship because it would also cause a delay in the processing of its permit application. Respondent is willing to proceed to trial without having obtained disclosure of the documents to which Staff asserts privilege, but which have not been protected. Under these circumstances, no adjournment is needed.

____________/s/____________
Frank Montecalvo
Administrative Law Judge

January 8, 1993
Albany, NY

TO: VIA MAIL AND FAX (Both Parties)

Shlimbaum, Shlimbaum and Jablonski
265 Main Street, PO Box 8
Islip, NY 11751-0008
attn: Edward C. Jablonski, Esq.
Tel. 516 277-4300
FAX #516 277-4350

J. Mark McQuerry, Esq.
NYSDEC
50 Wolf Road, Room 609
Albany, NY 12233
Tel. 518 457-0090
FAX #518 485-8478

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