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Blaise, Roland - Order, February 3, 2000

Order, February 3, 2000

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 Part 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6NYCRR)

- by -

ROLAND BLAISE

Respondent

ORDER

Case No. R5-2355-99-08

WHEREAS:

  1. Pursuant to the Notice of Hearing and Complaint dated September 29, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent Roland Blaise, was served with a Notice of Hearing and Complaint on October 8, 1999, all as further addressed in the attached ALJ Default Summary Report, hereby adopted as my decision.
  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 October 28, 1999.
  5. DEC Staff made a Motion for Default Judgment dated January 7, 2000 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 allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.
  7. Respondent violated Environmental Conservation Law §17-1009 and 6 NYCRR §613.5 by failing to conduct tightness testing on tanks 001, 002, and 003 and connecting piping systems at his petroleum bulk storage facility.

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

  1. Respondent pay a penalty in the amount of (Seven Thousand Five Hundred ($7,500.00) dollars within thirty (30) days of service upon the Respondent of a conformed copy of this Order.
  2. Respondent, Roland Blaise conduct tightness testing as set forth in 6 NYCRR 613.5(a), or permanently close tanks 001, 002 and 003 and connecting piping systems, as set forth in 6 NYCRR 613.5(b), (c), (d), and (e) within thirty (30) days of receipt of this Order.
  3. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 5 Director, NYSDEC, Route 86, P.O. Box 296, Ray Brook, New York 12977.
  4. The provisions, terms and conditions of this Order shall bind the Respondent, his officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
February 3, 2000

TO: Roland Blaise
1852 North Ausable Street
Keeseville, New York 12944

Christopher A. Lacombe, Esq.
NYS Department of Environmental Conservation
Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

an Alleged Violation of Article 17 of the Environmental Conservation Law and Part 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

by

ROLAND BLAISE,

Respondent

DEFAULT SUMMARY REPORT

File No.

R5-2355-99-08

Summary

The present report concerns a motion for a default judgement which the Region 5 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Roland Blaise (the "Respondent") pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). The report recommends that the motion be granted.

Proceedings

On September 29, 1999, the Department Staff sent a Notice of Hearing and Complaint to the Respondent. The Complaint alleged that the Respondent had violated 6 NYCRR Section 613.5(a)(1) and Environmental Conservation Law ("ECL") Section 17-1005 by failing to conduct tightness testing at a petroleum bulk storage facility owned or operated by the Respondent. The facility is located at 1852 North Ausable Street, Keeseville, New York, 12944.

The Notice of Hearing and Complaint were sent by certified mail, return receipt requested. The return receipt, with the signature of Roland Blaise, was returned to the Department's Region 5 office. The date of delivery, as stamped by the U.S. Postal Service, was October 8, 1999.

The Notice of Hearing required the Respondent to serve upon the Department an Answer to the Complaint within 20 days of receipt of the Complaint. The Notice further stated that failure to timely answer would result in a default and a waiver of the Respondent's right to a hearing. The Notice stated that an Administrative Law Judge ("ALJ") would set a date for hearing upon the filing by the Department Staff of a Statement of Readiness for Adjudicatory Hearing. The Notice did not set a date for a pre-hearing conference.

As of January 7, 2000, the Department Staff had not received any Answer nor any other contact from the Respondent. The Respondent also has not contacted the Department's Office of Hearings and Mediation Services.

On January 7, 2000, the Department Staff moved for a default judgement based on the Respondent's failure to answer the Complaint. The motion was sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation, with a copy sent to the Respondent. As of January 18, 2000, the Office of Hearings and Mediation Services had not received any response from the Respondent concerning the motion for a default judgement, nor an Answer.

Discussion

The procedures for a default judgement are provided in 6 NYCRR Section 622.15. The regulation provides that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department Staff may make a motion to the Administrative law Judge for a default judgement. Failure to appear at a hearing or at a scheduled pre-hearing conference also constitute defaults, although those circumstances are not under consideration in the present case.

6 NYCRR 622.15(b) requires that a motion for default judgement contain: (1) proof of service upon the respondent of the notice of hearing and complaint or other such 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. The regulation further provides that upon a finding by the ALJ that the requirements of Subdivision 622.15(b) have been adequately met, the ALJ will submit a report, which will be limited to a description of the circumstances of the default, and the proposed order to the Commissioner.

In the present case, the Department Staff has submitted an affirmation by Christopher A. Lacombe, Regional Attorney for Region 5, which proves that the Notice of Hearing and Complaint were served upon the Respondent on October 8, 1999 and that the Respondent failed to provide any Answer. The Notice of Hearing informed the Respondent that failure to answer would constitute a default and would result in waiver of the right to be heard in the matter. The Notice of Hearing directed that the Respondent file an Answer with the Department within 20 days following receipt of the Complaint, which would have been October 28, 1999. The Respondent did not file an Answer by this date and, as of January 7, 2000, did not have any other contact with the Department.

The Department Staff submitted a proposed order with the motion for a default judgement.

Thus, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgement in this matter. In accordance with 6 NYCRR 622.15(c), this summary report will be submitted to the Commissioner accompanied by a proposed order.

Recommendation

The Commissioner should grant the default judgement requested by the Department Staff in this matter.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Albany, New York

Attachment

TO: Roland Blaise
1852 North Ausable Street
Keeseville, New York 12944

Christopher A. Lacombe, Esq.
NYS Department of Environmental
Conservation, Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296

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