Alcus, James - Decision and Order, August 22, 1996
Decision and Order, August 22, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Alleged Violations of Articles 17 and 33 of the New York State Environmental Conservation Law and Article 12 of the New York State Navigation Law,
- by -
JAMES ALCUS individually and as sole proprietor of BEDS & BUSHES LANDSCAPING
and as principal officer of BEDS & BUSHES LANDSCAPING, INC.
and BEDS & BUSHES LANDSCAPING
and JAMES ALCUS, PATTI ALCUS, individually,
and as principal officers of ALCUS FUEL OIL and ALCUS FUEL OIL d/b/a
and/or a/k/a ALCUS FUEL OIL WEST,
DECISION and ORDER
- Pursuant to .622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR") staff of the Region 1 office of the New York State Department of Environmental Conservation (the "staff") duly served a Motion for Default Judgment ("motion") upon respondents, James Alcus, Beds & Bushes Landscaping, Inc., Beds & Bushes Landscaping, Patricia Alcus, Alcus Fuel Oil d/b/a and/or a/k/a Alcus Fuel Oil West (collectively, "the respondents" herein) by first class mail on October 11, 1995.
- The notice of motion and supporting papers provided that on July 8, 1995, staff served the respondents James Alcus, Beds & Bushes Landscaping, Inc., Beds & Bushes Landscaping, Patti Alcus, Alcus Fuel Oil, Inc. and Alcus Fuel Oil by personal service upon Patti Alcus with copies of the notice of hearing and complaint and a Notice of Intent to Deny Commercial Pesticide Applicator Certification. The notice of hearing included a statement that pursuant to 6 NYCRR .622.4, a failure to file a response within twenty (20) days after receipt of the notice constitutes a default. The staff documents that the time for service of the answer expired with no reply from respondents.
- Pursuant to 6 NYCRR .622.15, the notice provided that failure to appear at the conference would constitute a default and a waiver of respondents' right to a hearing. Assistant Regional Attorney Aja affirms in support of the motion that respondents failed to appear at this conference.
- I adopt the findings of the Administrative Law Judge's report dated August 20, 1996, attached hereto.
- Failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR .622.15.
NOW, THEREFORE, have considered this matter, it is ORDERED that:
- Pursuant to 6 NYCRR .622.15, respondents are found to be in default and accordingly, staff's allegations against James Alcus, Beds & Bushes Landscaping, Inc., Beds & Bushes Landscaping, Patti Alcus, and Alcus Fuel Oil d/b/a and/or a/k/a Alcus Fuel Oil West in its complaint are deemed to have been admitted by respondents.
- The respondents violated Environmental Conservation Law ("ECL") ..33-0907(1) and 33-1301(8)(a) and 6 NYCRR .325.23(a) by failing to register their commercial pesticide application business in 1988, 1989 and 1991.
- The respondents violated ECL .33-0905 and 6 NYCRR .325.25(a) for their failure to produce records for inspection on May 8, 1991, June 17, 1991, January 15, 1992 and pursuant to subpoena on February 4, 1992.
- The respondents violated ECL ..33-0905(1), 33-1301(8) and 6 NYCRR .325.17(a) for the commercial application of pesticides without a valid commercial applicator certification.
- The respondents violated 6 NYCRR .325.25(b) for failure to file annual reports of their commercial pesticide business for calendar years 1988, 1989, 1991 and 1993 and failure to file a timely annual report for the 1992 calendar year.
- Respondents violated 6 NYCRR .325.23(g) for failure to carry the minimum required insurance coverage in 1988, 1989 and 1991.
Oil Spill Violations
- Respondents violated ECL .17-0501 and Navigation Law .173 by unlawfully discharging petroleum on February 25, 1990, February 28, 1991, April 3, 1992, October 1, 1992, December 3, 1992, January 17, 1993, February 16, 1993, March 27, 1993, March 29, 1993, April 25, 1993, August 12, 1993, and October 5,1993.
- Respondents violated ECL .17-1743, Navigation Law .175 and 17 NYCRR .32.3 by failing to timely notify the Department staff of petroleum spills on February 25, 1990, April 3, 1992, December 3, 1992, January 17, 1993, February 16, 1993, March 29, 1993, April 25, 1993, and August 12, 1993.
- Respondents violated Navigation Law .176 and 17 NYCRR .32.5 by failing to take immediate steps to contain, clean up and remove the unlawful discharge of petroleum on January 17, 1993, and February 16, 1993.
- Within thirty (30) days from service of this Order upon respondents, they shall:
- permanently cease and desist from commercially applying pesticides and disengage themselves from any business, individuals, or entity that is engaged in any aspect of the business of offering or providing the service of commercial or private application of pesticides within the State of New York; and
- in accordance with ECL .71-2907, jointly and severally pay an administrative penalty of the sum of TWENTY SEVEN THOUSAND DOLLARS ($27,000.00); and
- cease and desist from all violations of the Environmental Conservation Law, the codes, rules and regulations promulgated thereunder and the Navigation Law; and
- equip all of their oil delivery vehicles with information on how their drivers will notify the spill hotline after a spill; and
- continually equip all of their oil delivery vehicles with a "spill kit" which, at minimum, will include speedi-dri, absorbants and a debris storage container; and
- submit to the Department for its approval and approvable training program which will address but not be limited to the following:
- proper oil delivery procedure
- state and county oil delivery requirements
- emergency oil spill notification and containment procedures
- disposal of contaminated materials
- implement the Department-approved training program and have all their oil delivery drivers trained at least once annually before October 15th of each year; and
- in accordance with ECL ..71-1949 and 71-1943 and Navigation Law .192, jointly and severally pay an administrative penalty of THIRTY TWO THOUSAND, FIVE HUNDRED DOLLARS ($32,500); and
- pursuant to Navigation Law .181, jointly and severally reimburse the New York State Environmental Protection and Spill Compensation Fund the sum of TWELVE THOUSAND FOURTEEN DOLLARS ($12,014.00) plus accruing interest, administrative costs and fees and such other amounts the Department may be billed for in the future for the containment and cleanup of spill numbers 92-11858 (January 17, 1993), 92-12807 (January 17, 1993) and 92-12888 (February 16, 1993).
- All communication between respondents and Department staff concerning this Order shall be made to: Assistant Regional Attorney Louise M. Aja, Department of Environmental Conservation, Region 1, Building 40 - SUNY Stony Brook, New York 11790-2356.
- The provisions, terms and conditions of this Order shall bind respondents, its agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of respondents.
For the New York State Department
of Environmental Conservation
By: Michael D. Zagata, Commissioner
Dated: Albany, New York
August 22, 1996
To: Jeffrey A. Spinner, Esq.
775 Park Avenue, Suite 110
Huntington, New York 11743-3976