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Douglas, Kathy d/b/a Country Store - Order, January 14, 2003

Order, January 14, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17 of the New York State 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 -

KATHY DOUGLAS, d/b/a
COUNTRY STORE,
2486 Route 9N
Ausable Forks, New York,

Respondent.

Clinton County

ORDER

Case No: R5-20010416-165

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated October 4, 2001, the New York State Department of Environmental Conservation ("DEC") Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent, Kathy Douglas, d/b/a Country Store was served with a Notice of Hearing and Complaint on October 18, 2001.
  3. Service of process was accomplished in accordance with 6 NYCRR Section 622.3.
  4. Respondent's time to serve an answer to the Complaint expired on November 18, 2001, and no answer was served.
  5. DEC Staff made a motion for default judgment dated December 20, 2001 outlining this failure.
  6. According to Section 622.15 of 6 NYCRR, Respondent is found to be in default and has waived its right to a hearing in this enforcement proceeding. Therefore, Department Staff's allegations against Respondent in the Complaint are deemed to have been admitted by Respondent.
  7. Respondent violated Environmental Conservation Law Section 17-1009 and 6 NYCRR Section 612.2 by failing to timely register its petroleum bulk storage tanks with the Department.

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

  1. Respondent shall pay a penalty in the amount of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500). The full amount of the penalty shall be paid by certified check or money order to "NYSDEC," Attention: Regional Director, New York State Department of Environmental Conservation, Region 5, Route 86, P.O. Box 296, Ray Brook, New York 12977-0296, within thirty (30) days of service of this Order.
  2. All communications between the Respondent and Department Staff concerning this Order shall be made to: the Department's Region 5 Director, New York State Department of Environmental Conservation, Region Five, Route 86, P.O. Box 296, Ray Brook, New York 12977-0296.
  3. The provisions, terms and conditions of this Order shall bind the Respondent, its 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: Erin M. Crotty, Commissioner

Dated: Albany, New York
January 14, 2003

Kathy Douglas, d/b/a Country Store
2486 Route 9N
Ausable Forks, New York 12912

Christopher A. Lacombe, Esq.
Regional Attorney
NYSDEC 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

the 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:

KATHY DOUGLAS,
d/b/a COUNTRY STORE,
2486 Route 9N
Ausable Forks, New York

Respondent.

Summary Report:

Motion for Default Judgment

File No. R5-20010416-165

Proceedings

In a complaint dated October 4, 2001 (the "Complaint"), the Department of Environmental Conservation (the "Department") asserted that Kathy Douglas, d/b/a Country Store (the "Respondent") owns or operates a petroleum storage facility at 2486 Route 9N, Ausable Forks, New York. The Department's Complaint alleged that Respondent violated Environmental Conservation Law ("ECL") Section 17-1009, and its implementing regulation, 6 NYCRR Section 612.2 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), because Respondent had failed to timely register its petroleum storage tanks with the Department. In its Complaint, the Department asked the Commissioner to find the Respondent in violation, and to assess a civil penalty of $3,500 pursuant to ECL Section 71-1929.

With the Complaint, the Department served a Notice of Hearing dated October 4, 2001 (the "Notice"). The Notice stated that the Respondent's answer was due within twenty days of receipt of the Notice and Complaint. The Notice stated further that a default and waiver of Respondent's right to a hearing would result if the Respondent did not file a timely answer.

Pursuant to Section 622.15 of 6 NYCRR, the Department has moved for a default judgment against the Respondent. Staff made its motion on or about December 20, 2001, by mailing to Respondent the following papers:

  • a Notice of Motion for Default Judgment dated December 20, 2001;
  • the Affirmation of Christopher A. Lacombe, Esq. In Support of Motion for Default Judgment, dated December 20, 2001 (the "Lacombe Affirmation"); and
  • a proposed Order;

and by filing the above documents, on December 24, 2001, with the Department's Office of Hearings and Mediation Services.

According to the Lacombe Affirmation, the Respondent did not file a timely answer to the Complaint, nor has the Respondent had any further contact with the Department. The exhibits attached to the Lacombe Affirmation were offered to show proof of service of the Complaint and Notice of Hearing upon the Respondent [Exhibits A and B], and a proposed order [Exhibit D]. The proposed order would provide the relief initially sought by the Department in the Complaint.

The Respondent has not opposed the motion, and, as of the date of this Summary Report, the Office of Hearings and Mediation Services had not received a reply from the Respondent to the motion.

Default Procedures

Section 622.15 of 6 NYCRR, "Default Procedures," provides in pertinent part:

  • A respondent's failure to file a timely answer or, even if a timely answer is filed, failure to appear at the hearing or the pre-hearing conference (if one has been scheduled pursuant to section 622.8 of this Part) constitutes a default and a waiver of respondent's right to a hearing. If any of these events occurs the department staff may make a motion to the ALJ for a default judgment.
  • The motion for a default judgment may be made orally on the record or in writing and must contain:
    • (1) proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding;
    • proof of the respondent's failure to appear or failure to file a timely answer; and
    • a proposed order.
  • Upon a finding by the ALJ that the requirements of subdivision (b) of this section have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner.

Thus, Section 622.15(a) allows the Department to request a default judgment if a respondent does not file an answer to a complaint in a timely manner, or does not appear at a pre-hearing conference when one has been scheduled pursuant to Section 622.8. When considering a motion for default judgment, the scope of the administrative law judge ("ALJ")'s review is limited to whether the Department has met the requirements outlined in Section 622.15(b), and to submit "a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner." 6 NYCRR Section 622.15(c). Therefore, the Findings set forth below are based upon the papers submitted, as identified above, and are limited as prescribed by Section 622.15(c).

Findings

  • The Lacombe Affirmation indicates that the Notice of Hearing and the Complaint were sent certified mail, return receipt requested, addressed to Kathy Douglas d/b/a Country Store, 2486 Route 9N, Ausable Forks, New York 12912.
  • The Lacombe Affirmation indicates further that the United States Postal Service returned the signed return receipt for certified mail, bearing a delivery date of October 18, 2001. A copy of the return receipt is attached as Exhibit B to the Lacombe Affirmation.
  • The Department's Complaint alleged that the Respondent owns a petroleum bulk storage facility at 2486 Route 9N, Ausable Forks, New York. The Complaint alleges further that the Respondent had violated Environmental Conservation Law ("ECL") Section 17-1009, and its implementing regulation, 6 NYCRR Section 612.2, because the Respondent failed to timely register its petroleum bulk storage tanks with the Department. In its Complaint, the Department asked the Commissioner to find the Respondent in violation, and to assess a civil penalty of $3,500 pursuant to ECL Section 71-1929.
  • The Department's October 4, 2001 Notice of Hearing stated that an answer was due within twenty days of receipt of the Complaint. The Notice stated further that a default and a waiver of the Respondent's right to a hearing would result if the Respondent did not file a timely answer.
  • According to the Lacombe Affirmation, no response to the Complaint has been received, and the Respondent's time to answer expired on November 18, 2001.
  • On December 20, 2001, this motion was mailed to the Office of Hearings and Mediation Services, with a copy to the Respondent. The motion included (1) proof of service of the October 4, 2001 Notice of Hearing and the Complaint; (2) proof of the Respondent's failure to file a timely answer; and (3) a proposed order.
  • No response to the Department's motion has been filed with the Office of Hearings and Mediation Services.
  • The requirements for a default judgment have been met adequately as prescribed by 6 NYCRR Section 622.15(b).

Conclusions and Recommendations

The Department may commence an administrative proceeding with service of a notice of hearing accompanied by a complaint. 6 NYCRR Section 622.3(a)(1). Service of the notice of hearing and complaint must be by personal service consistent with the Civil Practice Law and Rules, or by certified mail. 6 NYCRR Section 622.3(a)(3). Service is complete when the notice of hearing and complaint are received. Id. Ms. Forrester's Affidavit of Service, sworn to October 11, 2001 [Exhibit A to the Lacombe Affirmation] and the copy of the signed, domestic mail return receipt [Exhibit B to the Lacombe Affirmation] establish that the Department duly served the October 4, 2001 Notice of Hearing and the complaint upon the Respondent by certified mail in a manner consistent with Section 622.3(a)(3).

The Lacombe Affirmation is unrefuted, and establishes that the Respondent did not file a timely answer, and did not have any other contact with the Department. The October 4, 2001 Notice of Hearing informed the Respondent that failure to timely answer would result in a default, and a waiver of Respondent's right to a hearing. Therefore, I conclude that the requirements for a default judgment, as outlined in 6 NYCRR Section 622.15(b), have been met.

Accordingly, the Commissioner should grant the motion for a default judgment. In granting the motion, the Commissioner should find that the Respondent is an owner or operator of a petroleum bulk storage facility, and that the Respondent has failed to register its facility. Based upon these findings, the Commissioner should conclude that the Respondent violated ECL Section 17-1009 and 6 NYCRR Section 612.2. This Summary Report and Proposed Order (attached hereto) are referred to the Commissioner for final determination.

_____________/s/_____________
Maria E. Villa
Administrative Law Judge

Dated: Albany, New York

Kathy Douglas d/b/a Country Store
2486 Route 9N
Ausable Forks, New York 12912

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

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