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DeMian, David and Marie - Order, July 6, 1999

Order, July 6, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of

the Alleged Violations of Articles 15, 25 and 71 of
the New York State Environmental Conservation Law ("ECL") and
Parts 608 and 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York ("6 NYCRR"),

- by -

DAVID DEMIAN
AND
MARIE DEMIAN

(Suffolk County)

Respondents.

ORDER
FILE NYSDEC NO.
R1-6178-98-12

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated April 13, 1999, New York State Department of Environmental Conservation (DEC) Region 1 Staff (Staff) commenced an administrative enforcement proceeding against the above-named Respondents.
  2. Respondent David Demian was properly served with the Notice of Hearing and Complaint by Certified Mail on April 15, 1999 and Respondent Marie Demian was properly served with the Notice of Hearing and Complaint by Certified Mail on April 20, 1999.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3(a)(3).
  4. The time for Respondents to serve an Answer expired on May 10, 1999. The Respondents have failed to serve an Answer to Department Staff's Complaint within that time, or since.
  5. The Respondents have failed to appear at the Pre-Hearing Conference on May 26, 1999.
  6. With respect to such failure to answer or appear, DEC Staff made an oral Motion for Default Judgement pursuant to 6 NYCRR §622.15, on the record on May 26, 1999, by telephonic conference with the Administrative Law Judge..
  7. Pursuant to 6 NYCRR §622.15, Respondents are in default and have waived their right to a hearing in this enforcement proceeding. According, Department Staff's allegations against Respondents as set forth in the Complaint, are deemed to have been admitted by the Respondents.
  8. The property which is the subject of this proceeding is located at 18 Flax Pond Woods Road, Old Field, Suffolk County, New York (hereinafter referred to as the "Site").
  9. The Site contains regulated tidal wetlands which are subject to the jurisdiction of the Department pursuant to ECL §15-0505 and Part 608 of 6 NYCRR and ECL §25-0201 and Part 661 of 6 NYCRR.
  10. The Respondents, DAVID DEMIAN and MARIE DEMIAN, are now and have been the owners of the property at the Site during all of the periods of time when the violations were committed.
  11. Respondents have violated ECL Article 25 and 6 NYCRR Part 661 by three (3) separate and continuing activities.
  12. Respondents have violated ECL §25-0401 and Part 661 of 6 NYCRR, by causing and/or permitting to be caused, at the Site, the clearing of vegetation from the regulated adjacent area to a regulated adjacent area to a regulated tidal canal, without the required DEC permit on or before March 21,1998.
  13. Respondents have violated ECL §25-0401 and 6 NYCRR 661, by causing and/or permitting to be caused, at the Site, the continued discharge of water into a regulated tidal pond, without the required DEC permit on or before March 21, 1998.
  14. Respondents have violated ECL §25-0401 and 6 NYCRR 661, by causing and/or permitting to be caused, at the Site, the placement of fill in and adjacent to a regulated tidal wetland without the required permit on, or before march 21, 1998.
  15. Pursuant to ECL §71-2503, any person who violates any provisions of or who fails to perform any duty imposed by ECL Article 25 and 6 NYCRR Part 661, is subject to a civil to a civil penalty of up to TEN-THOUSAND ($10,000) DOLLARS for each violation, and for each day the violation continues, as well as criminal penalties and injunctive relief.
  16. Respondents have violated ECL Article 15 - Title 5 and 6 NYCRR Part 608 by two (2) separate and continuing activities, as set forth in the complaint.
  17. Respondents have violated ECL Section 15-0505 and 6 NYCRR Part 608, by causing and/or permitting to be caused, at the Site, the discharge of water into a regulated tidal pond, without the required DEC permit on or before March 21, 1998.
  18. Respondents have violated ECL Section 15-0505 and NYCRR 608, by causing and/or permitting to be caused, at the Site, the placement of fill in a regulated tidal wetland without the required permit on, or before March 21, 1998.
  19. Pursuant to ECL §71-1107, any person who violates any provisions of or who fails to perform any duty imposed by ECL Article 15 - Title 5 and 6 NYCRR Part 608, is subject to a civil penalty of up to FIVE-THOUSAND ($5,000) DOLLARS for each violation, as well s criminal penalties.

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

  1. The Respondents David DeMian and Marie DeMian are jointly and severally liable for having violated ECL Articles 15, 25 and 71 and 6 NYCRR Parts 608 and 661; the Respondents are jointly and severally assessed a civil penalty of FORTY-THOUSAND ($40,000) DOLLARS. The Respondents shall, within ten (10) days of the service of a conformed copy of this Order upon the Respondents, submit this penalty payment made out to "NYSDEC" to: Regional Attorney, Legal Affairs region One, New York State Department of Environmental Conservation, Building #40, SUNY Campus, Stony Brook, NY 11790-2356.
  2. Subject to Departmental approval, Respondents shall immediately remove all fill and structures constituting violations at the Site. All fill removed from the Site must be transported to a facility authorized by the Department to receive such material. The Respondents shall remove the pump and drainage hoses from the Site.
  3. Subject to Departmental approval, The Respondents shall re-vegetate disturbed areas along the tidal canal with native, non-fertilizer dependant species of tidal wetland vegetation. Once planted, this area shall be maintained as a tidal wetland buffer zone and shall be made to: Raymond E. Cowen, PE, Regional Director, Region One, New York State Department of Environmental Conservation, Building #40, SUNY Campus, Stony Brook, NY 11790-2356.
  4. The provisions, terms and conditions of the Order shall bind Respondents, all agents, servants, employees, successors and assigns and all persons, firms and corporations acting for the behalf of Respondents.

For the New York State Department
of Environmental Conservation

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

Dated: July 6, 1999
Albany, New York

TO: Mr. David DeMian
18 Flax Pond Wood Road
Old Field, New York 11733

Mrs. Marie DeMian
18 Flax Pond Wood Road
Old Field, New York 11733

Craig L. Elgut, Esq.
Assistant Regional Attorney
NYSDEC Region 1
Building #40, SUNY Campus
Stony Brook, New York 11790-2356

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 15 and 25 of the Environmental Conservation Law of the State of New York by:

DAVID DEMIAN
and
MARIE DEMIAN,

Respondents.

DEFAULT SUMMARY REPORT

Case No. R1-6178-98-12

Proceedings

The Region 1 Staff of the New York State Department of Environmental Conservation ("Staff") served a Notice of Hearing, Pre-Hearing Conference and Calendar Call (the "Combined Notice") and Complaint, both dated April 13, 1999, upon the Respondents David Demian and Marie Demian. Proof of service by certified mailing shows that the Respondent David Demian received delivery of the Combined Notice and Complaint on April 15, 1999 and the Respondent Marie Demian received delivery of the Combined Notice and Complaint on April 20, 1999.

The Combined Notice required the Respondents to appear for a pre-hearing conference and calendar call at the Department's Region 1 Office, on May 26, 1999, at 9:00 a.m. The Respondents failed to appear for the pre-hearing conference and calendar call on May 26, 1999. At 9:45 a.m., by telephone conference with the ALJ, Assistant Regional Attorney Craig Elgut made an oral Motion for Default Judgment pursuant to 6 NYCRR §622.15. A stenographic record of the proceedings was recorded. Subsequently, by letter dated June 1, 1999, Staff filed supporting papers with the Office of Hearings and Mediation Services, including proof of service of the pleadings upon each Respondent by certified mail, return receipt, and a proposed Order.

The Combined Notice states that failure to answer within 20 days of receipt of the Complaint, failure to attend a duly scheduled calendar call/pre-hearing conference or failure to attend the hearing constitutes a default and may result in a default judgment being issued against Respondents pursuant to 6 NYCRR §622.15. The Respondents failed to file an Answer to Staff's Complaint and failed to appear at the Pre-Hearing Conference on May 26, 1999.

Findings and Conclusion

Pursuant to 6 NYCRR 622.15, upon the oral motion of Craig Elgut, Esq., and proof of service submitted under cover of Mr. Elgut's June 1, 1999 letter, Staff have established proof of proper service upon and notice to the two Respondents.

Pursuant to 6 NYCRR §622.15, a Motion for a Default Judgment may be brought if a respondent fails to appear or file an Answer. The Motion must include proof of service upon the respondent of the document which commenced the proceeding, proof of respondent's failure to appear or respond within the allotted time, and a proposed order. Consideration of a Motion for Default Judgment by the Office of Hearings and Mediation Services is limited to the circumstances of the default itself. The default must be granted if, upon the papers submitted, it is established that a Respondent was properly served and failed to appear or answer. The papers submitted in this proceeding meet the foregoing requirements and establish that both Respondent David Demian and Marie Demian are in default in this matter.

Recommendation

The Commissioner should grant the default judgment against Respondents David Demian and Marie Demian with joint and several liability.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

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