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Akey Properties, LLC - Order, July 6, 1999

Order, July 6, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17 of the Environmental Conservation Law (ECL)
and Parts 612 and 613 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

- by -

AKEY PROPERTIES LLC.,

Respondent

ORDER

Case No. R5-2298-98-12

WHEREAS:

  1. Pursuant to the Notice of Hearing and Complaint dated March 3, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent Akey Properties, LLC was served with a Notice of Hearing and Complaint on March 5, 1999.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3 and CPLR §2103.
  4. Respondent's time for serving an Answer to the Complaint expired on March 25, 1999.
  5. DEC staff made a Motion for Default Judgment dated May 21, 1999 outlining this failure.
  6. According to §622.15 of 6 NYCRR, Respondent is found to be in default and having waived its right to a hearing in this enforcement proceeding. Therefore, Department Staff's allegation against Respondent in its Complaint are deemed to have been admitted by Respondent.
  7. Respondent violated Environmental Conservation Law §17-1005 and 6 NYCRR §613.5, by failing to timely conduct tightness testing or permanently close it petroleum bulk storage tanks with the Department.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. Respondent pay a penalty in the amount of ELEVEN THOUSAND ($11,000.00) DOLLARS.
  2. Respondent conduct tightness testing or permanently close tank 002 located at 16000 MR 16, Plattsburgh, NY, pursuant to 6 NYCRR §613.9(b), (c) and (d) within 15 days of this order.
  3. All communications between Respondent and Department Staff concerning this Order shall be made to the Department's Region 5 Director, New York State Department of Environmental Conservation, Route 86, P.O. Box 296, Ray Brook, New York 12977-0296.
  4. The provisions, terms and conditions of the Order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
July 6, 1999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 15 of
the New York State Environmental Conservation Law

- by -

Akey Properties, LLC,
16000 MR 16 (rear occupant)
Plattsburg, Clinton County

Respondent

Summary Report on

Motion for Default Judgment

Case No.

R5-2298-98-12

PROCEEDINGS

Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("Department") Region 5 Staff ("Staff") has moved for a default judgment against Akey Properties, LLC, (the "Respondent").

Staff made its motion on or about May 21st, 1999 by sending to Akey Properties, LLC, the Respondent, the following papers:

A Notice of Motion for Default Judgment dated May 21st, 1999; a Motion for Default Judgment; an Affirmation in Support of Motion for Default Judgment; and an unsigned Order; and by filing, on or about May 21st, 1999, said documents with the Department's Office of Hearings and Mediation Services.

Respondent's response to Staff's Motion was due on June 7th, 1999 pursuant to 6 NYCRR §622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail and excluding Saturdays, Sundays and the public holiday.

No response to the Staff's Motion has been received from the Respondent as of the date of this Summary Report.

Default Procedures

Section 622.15, "Default procedures" provides in pertinent part:

"(b) The motion for a default judgment may be made orally on the record or in writing and must contain:

"(1) Proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding;

"(2) Proof of the respondent's failure to appear or failure to file a timely answer; and

"(3) A proposed order.

"(c) Upon a finding by the ALJ that the requirements of subdivision (b) have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner. ..."

The following Findings are based upon the papers submitted, as identified above.

FINDINGS

  1. On March 3rd, 1999, Staff sent a Notice of Hearing and Complaint to Ms. Debbie Akey, Akey Properties LLC, 14 Margaret Street., Suite #1, Plattsburg, NY 12901, Respondent via certified mail with return receipt.
  2. An Affidavit of Service indicates that the Notice of Hearing and Complaint was placed in a secure wrapper envelope and the envelope was put in a post office box regularly maintained by the United States Government Postal Service. The envelope was sent to Ms. Debbie Akey, Akey Properties LLC, 14 Margaret Street, Suite #1, Plattsburg, NY 12901 alleged to be Respondents' last known address as reflected in the Department's files.
  3. The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received March 5th, 1999 and signed by someone other than Debbie Akey.
  4. As of May 21st, 1999, (the date of the motion papers), neither Debbie Akey nor Akey Properties LLC, responded to the Notice of Hearing and Complaint.
  5. The requirements for a default judgement have been adequately met as prescribed by 6 NYCRR §622.15(b).

CONCLUSION

This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

/s/
Francis W. Serbent
Administrative Law Judge

Dated: June 18, 1999
Albany, New York

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