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DeMarco, Jude - Order, February 2, 2000

Order, February 2, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 12 of the Navigation Law (NL) and
Article 27 of the Environmental Conservation Law (ECL) and Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6NYCRR)

- by -

JUDE DEMARCO,

Respondent

ORDER

Case No. R9-4426-96-11

WHEREAS:

  1. Pursuant to the Notice of Hearing and Complaint dated April 9, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent Jude DeMarco, was served with a Notice of Hearing and Complaint on April 14, 1999 and again on September 21, 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 12, 1999.
  5. DEC Staff made a Motion for Default, dated December 17,1999, outlining this failure.
  6. According to §622.15 of 6 NYCRR, Respondent is found to be in default and having waived his right 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 Sections 173 and 175 of Article 12 of the Navigation Law by discharging petroleum to the groundwaters of New York State and by failing to notify the Department of said discharge within two hours of the event, and violated ECL Article 27, Title 7 and its implementing regulations at 6 NYCRR Part 360-1.7(a)(1)(i) and Part 360-1.5 by illegally storing excavated contaminated soil at his site for a period exceeding 60 days and by failing to dispose of said excavated contaminated soil at an approved facility.

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

  1. Respondent pay a penalty in the amount of (Twelve Thousand ($12,000.00) dollars within thirty (30) days of service upon the Respondent of a conformed copy of this Order.
  2. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 9 Director, NYSDEC, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  3. 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 2, 2000

TO: Jude DeMarco
6249 Brown Hill Road
Boston, New York 14025

David F. Stever, Esq.
NYS Department of Environmental
Conservation, Region 9
270 Michigan Avenue
Buffalo, New York 14203-2999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violation of Article 12 of the Navigation Law and
Article 27 of the Environmental Conservation Law, and Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York by

JUDE DEMARCO,

Respondent

DEFAULT SUMMARY REPORT

File Nos. 96-58,

R9-4426-96-11

Summary

The present report concerns a motion for a default judgement which the Region 9 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Jude DeMarco (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 21, 1999, the Department Staff served a Notice of Hearing and Complaint upon the Respondent. The Complaint alleged that the Respondent had violated Navigation Law Section 173 by causing discharge of petroleum, specifically waste oil, and violated Navigation Law Section 175 by failing to notify the Department of Environmental Conservation of said discharge within two hours of the discharge. The Complaint further alleged that the Respondent violated 6 NYCRR Section 360-1.7(a)(1)(i) by storing excavated contaminated soil at his site for a period exceeding sixty days, and violated 6 NYCRR Section 360-1.5 by disposing of solid waste at other than a facility exempt from Part 360 requirements or legally authorized to receive solid waste for disposal purposes. The site of the alleged violations is located at 6249 Brown Hill Road, Town of Boston, New York, on property owned by the Respondent.

The Notice of Hearing and Complaint were personally served upon the Respondent by Environmental Conservation Officer Mark Mazurkiewicz on April 14, 1999 and again on September 21, 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 the Office of Hearings would set a date for hearing. The Notice did not set a date for a pre-hearing conference.

As of December 17, 1999, 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 December 17, 1999, the Department Staff moved for a default judgement based on the Respondent's failure to answer the Complaint. The motion was sent to the Respondent, with a copy sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation. 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 ("ALJ") 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 David F. Stever, Assistant Regional Attorney for Region 9, which proves that the Notice of Hearing and Complaint were served upon the Respondent on September 21, 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 12, 1999. The Respondent did not file an Answer by this date and, as of December 17, 1999, 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: Mr. Jude DeMarco
6249 Brown Hill Road
Boston, New York 14025

David F. Stever, Esq.
NYS Department of Environmental
Conservation, Region 9
270 Michigan Avenue
Buffalo, New York 14203-2999

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