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Tubridy, Michael - Ruling 2, April 11, 2000

Ruling 2, April 11, 2000


In the Matter of Alleged Violations of Articles
15 and 25 of the Environmental Conservation Law
and Parts 608 and 661 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the
State of New York by


Case No. R2-0428-99-03


April 11, 2000

At the hearing on March 7, 2000, counsel for the Department Staff moved to amend the complaint to include alleged violations at the time of site visists that occurred after the date of the motion for order without hearing. Counsel for the Respondent requested time to submit arguments in writing, opposing this motion. I set March 20, 2000 as the deadline for this correspondence.

I have received no correspondence from Mr. Mulvaney nor from Mr. Tubridy opposing the motion. On April 10, 2000, Assistant Regional Attorney Udo Drescher sent me an electronic mail message, with a copy by electronic mail to Mr. Mulvaney, inquiring about the status of the motion. I have received no response from Mr. Mulvaney as of this afternoon.

RULING: The motion to amend the complaint is granted.

The amendment of the complaint does not prejudice the Respondent since the Respondent has been aware of the Department Staff's additional site visits since at least March 7, 2000, as well as being aware of the motion to amend the complaint, and has time to prepare. In addition, there was testimony about the additional site visits at the hearing on March 7, in the context of the Department's civil penalty policy (specifically the question of cooperation in remedying the alleged violation) and the Respondent would not be surprised by testimony about these site visits. If the complaint were not amended, the Department Staff could serve an additional complaint regarding the additional site visits, but it appears to be more efficient to include these matters in the hearing which is already in progress.

Susan J. DuBois
Administrative Law Judge

Albany, New York
April 11, 2000

TO: Udo Drescher, Esq.
James E. Mulvaney, Esq.

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