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DeMarco Properties and Dan DeMarco d/b/a/ DeMarco Trucking - Order, February 14, 2003

Order, February 14, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

- by -

DeMARCO PROPERTIES, LTD.
and
DAN F. DeMARCO, JR.,
d/b/a DeMarco Trucking,

Respondents

ORDER

Case No: 01-21
R9-20010308-23

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint, dated October 11, 2001, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondents.
  2. Respondents, DeMarco Properties, Ltd. and Dan F. DeMarco, Jr. d/b/a DeMarco Trucking, were served with the Notice of Hearing and Complaint on November 28, 2001.
  3. Service of Process was accomplished in accordance with 6 NYCRR §622.3 and CPLR § 2103.
  4. Respondents' time for service of an Answer to the Complaint expired on December 18, 2001, and was not extended by consent of Department Staff.
  5. DEC Staff filed a Motion for Default Judgment, dated January 4, 2002, outlining Respondents' failures to answer or otherwise appear.
  6. Pursuant to 6 NYCRR § 622.15, the Respondents are hereby found to be in default and are found to have waived their right to a hearing in this enforcement proceeding. Accordingly, the allegations against the Respondents, contained in the DEC Staff's Complaint, are deemed to have been admitted by the Respondents.
  7. Respondent DeMarco Properties, Ltd., violated ECL §17-1009(2) and 6 NYCRR §612.2(a)(2) by failing to renew the registration of its petroleum bulk storage facility at 10180 West Main Road, Ripley, New York.
  8. Respondent Dan F. DeMarco, Jr., d/b/a DeMarco Trucking, violated 6 NYCRR §612.2(e) by failing to display a current and valid registration certificate on the premises of the petroleum bulk storage facility at 10180 West Main Road, Ripley, New York.

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

  1. Respondent DeMarco Properties, Ltd. is in default for having failed to answer the complaint and is found to have violated ECL §17-1009(2) and 6 NYCRR §612.2(a)(2). Respondent Dan F. DeMarco, Jr., d/b/a DeMarco Trucking , is in default for having failed to answer the complaint and is found to have violated 6 NYCRR §612.2(e).
  2. Respondent DeMarco Properties, Ltd., shall pay to the Department a civil penalty in the amount of Six Thousand Five Hundred Dollars ($6,500.00) and Respondent Dan F. DeMarco, Jr., shall pay to the Department a civil penalty in the amount of One Thousand Dollars ($1,000.00). Respondents shall within thirty (30) days of the service of a conformed copy of this Order, submit such payments of penalty by cashiers, certified check or money order drawn to the order of "NYSDEC" to: Regional Attorney, Legal Affairs Region 9, New York State Department of Environmental Conservation, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  3. Within thirty (30) days of service of this Order, Respondent DeMarco Properties, Ltd., shall submit to the Department a completed application to renew the registration of its petroleum bulk storage facility at 10180 West Main Road, Ripley, New York, together with a cashiers, certified check or money order in the amount of $250.00 for the registration fee required under 6 NYCRR §612.3; and
  4. Within five (5) days of the issuance by the Department of a valid certificate of registration for the facility, Respondent Dan F. DeMarco, Jr., shall cause said registration certificate to be displayed on the premises at 10180 West Main Road, Ripley, New York; and
  5. All communications between the Respondents and the Department concerning this Order shall be made to the Department's Region 9 Director, c/o NYSDEC, 270 Michigan Avenue, Buffalo, New York 14203-2999; and
  6. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
February 14, 2003

To: DeMarco Properties, Ltd., and
Dan F. DeMarco, Jr., dba DeMarco Trucking
10231 West Main Road
Ripley, New York 14775

Joseph J. Hausbeck, 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

an Alleged Violation of Article 17 of the Environmental Conservation Law ("ECL") and
Part 612 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR") by:

DeMARCO PROPERTIES, LTD.
and
DAN F. DeMARCO, JR., d/b/a DeMarco Trucking.

Respondents.

DEFAULT SUMMARY REPORT

Case No. 01-21

R9-20010308-23

Proceedings

On November 28, 2001, Staff of the Department of Environmental Conservation ("the Department," or "DEC") served a Notice of Hearing and Complaint upon DeMarco Properties, Ltd., and Dan F. DeMarco Jr. The notice announced that pursuant to 6 NYCRR 622.4, each Respondent must, within twenty days of receiving the Notice of Hearing and Complaint, serve upon DEC Staff an answer signed by the Respondent, the Respondent's attorney or other authorized representative.

By written motion dated January 4, 2002, DEC Staff counsel Joseph J. Hausbeck requested that a default judgment be issued against the Respondents and an order be issued:

1) Finding that the Respondent DeMarco Properties, Ltd., located at 10231 West Main Street, Ripley, New York 14775, is in violation of ECL Section 17-1009(2) and 6 NYCRR 612.2(a)(2) by failing to renew the registration of its petroleum bulk storage facility at 10180 West Main Road, Ripley, New York;

2) Finding that the Respondent Dan F. DeMarco, Jr., d/b/a DeMarco Trucking, located at 10231 West Main Street, Ripley, New York 14775, is in violation of 6 NYCRR 612.2(e) by failing to display a current and valid registration certificate on the premises of the petroleum bulk storage facility at 10180 West Main Road, Ripley, New York;

(3) Requiring the Respondents to pay a civil penalty of $7,500; and

(4) Directing such other relief as may be just, proper and appropriate.

The motion for default judgment was based on the failure of either Respondent to file an answer to the complaint. The motion was mailed to the Respondents at the 10231 West Main Street address in Ripley. No response to the motion has been received by this office or by DEC Staff.

On March 12, 2002, I called DEC attorney Joseph Hausbeck, who prepared and filed the default motion. I pointed out that the $7500 penalty referenced in his proposed order was not apportioned between the two charges in the complaint. I said this was important because one charge is against DeMarco Properties and the other is against Dan DeMarco individually, doing business as DeMarco Trucking. Because both Respondents are not charged with the same violations, I stressed that joint and several liability was not appropriate in this case.

I confirmed my concerns in a letter, also dated March 12, 2002, which was sent to Mr. Hausbeck and copied to the two Respondents. I requested in the letter that Mr. Hausbeck provide me and the Respondents a penalty breakdown by charge that I could use as a basis for amending Department Staff's proposed order. I also afforded both Respondents 20 days from the date of Mr. Hausbeck's reply to make a written response to the penalty breakdown.

Mr. Hausbeck submitted a letter dated March 26, 2002, in which he proposed apportioning the $7,500 penalty as follows:

  • $6,500 against Respondent DeMarco Properties, Ltd., for the failure to renew the registration of the petroleum bulk storage facility; and
  • $1,000 against Respondent Dan F. DeMarco for the failure to display a current and valid registration certificate on the premises of the facility.

Mr. Hausbeck justified the breakdown by saying that the failure to renew the registration is the more serious of the two violations presented in this case.

No response to this letter has been received from either Respondent.

Findings of Fact

  1. On November 28, 2001, Environmental Conservation Officer ("ECO") Frank Lauricella served the Notice of Hearing and Complaint in this matter upon DeMarco Properties, Ltd., by personally delivering the same to Daniel F. DeMarco, Jr., the president of said corporation.
  2. On November 28, 2001, ECO Lauricella also personally served the Notice of Hearing and Complaint upon Dan F. DeMarco, Jr., individually, by personally delivering the same to him.
  3. The time for the Respondents to serve an answer to the complaint expired on December 18, 2001, and was not extended by consent of DEC Staff.
  4. The Respondents have failed to file an answer to the complaint, and the Respondents have had no other contact with the Department.

Discussion

According to DEC's hearing regulations, a Respondent's failure to file a timely answer constitutes a default and a waiver of the Respondent's right to a hearing. [See 6 NYCRR 622.15(a).] In such an event, DEC Staff may move for a default judgment, such motion to 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 file a timely answer; and

(3) a proposed order. [See 6 NYCRR 622.15(b).]

ECO Lauricella's affidavits of personal service adequately demonstrate service of the Notice of Hearing and Complaint on both Respondents on November 28, 2001. The ECO served Mr. DeMarco both personally as owner of DeMarco Trucking, and as president of DeMarco Properties. Because Mr. DeMarco is an officer of DeMarco Properties, delivery to him had the effect of service on the corporation pursuant to 6 NYCRR 622.3(a)(3) and Civil Practice Law and Rules ("CPLR") Section 311(a)(1).

The affirmation of DEC Staff counsel Joseph Hausbeck, attached to the default motion, indicates that neither Respondent has filed an answer to the complaint or otherwise made contact with the Department. Likewise, neither Respondent has contacted this office.

Department Staff has provided a proposed order with its motion papers. I have amended that order to reflect the penalty breakdown I requested from Mr. Hausbeck, and to add a due date by which the civil penalties must be paid.

Conclusion

The Respondents have defaulted on their obligation to answer the complaint in this matter. As a result, they have waived their right to a hearing.

Recommendation

The attached proposed order, reflecting my changes to the one submitted by Department Staff, should be signed and served on the Respondents.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

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