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Rich K. Ely Tree Service, Inc - Order, Feruary 4, 1999

Order, Feruary 4, 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, 661 and 666 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR"),

- by -

RICH K. ELY TREE SERVICE, INC.

Suffolk County

Respondent

ORDER
FILE NO.
R1-6103-98-07

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated July 28, 1998, New York State Department of Environmental Conservation (DEC) Region 1 Staff commenced an administrative enforcement proceeding against the above-named Respondent.
  2. Respondent was properly served with the Notice of Hearing and Complaint by Certified Mail on July 31, 1998.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3.
  4. The time for Respondent to serve an Answer expired at the latest August 20, 1998. Respondent has failed to serve an Answer to Department Staff's Complaint within that time, or since.
  5. Respondent was properly served with a Notice of Pre-Hearing Conference together with the Notice of Hearing and Complaint by Certified Mail on July 31, 1998.
  6. Respondent failed to appear at the Pre-Hearing Conference on August 19, 1998.
  7. With respect to such failure to answer or appear, DEC Staff made a Motion for Default Judgment, dated January 12, 1999.
  8. Pursuant to 6 NYCRR §622.15, Respondent is found to be in default and as such having waived its right to a hearing in this enforcement proceeding. Accordingly, Department's Staff's allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.
  9. Respondent has violated ECL Article 25 and 6 NYCRR Part 661 by seven separate and continuing activities, all as set forth in detail in the complaint.
  10. 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 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.
  11. Respondent has violated ECL Article 15 - Title 5 and 6 NYCRR Part 608 by one activity, as set forth in detail in the complaint.
  12. 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 as criminal penalties.
  13. Respondent has violated ECL Article 15 - Title 27 and 6 NYCRR Part 666 by seven separate and continuing activities, all as set forth in detail in the complaint.
  14. Pursuant to ECL §15-2723, any person who violates any provisions of or who fails to perform any duty imposed by ECL Article 15 - Title 27, and 6 NYCRR 666, is subject to a civil penalty of up to ONE-THOUSAND ($1,000) DOLLARS for each violation, and for each day the violation continues, as well as criminal penalties.

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

  1. For having violated ECL Articles 25, 15 - Title 5, 15 - Title 27 and 71 and 6 NYCRR Parts 608, 661 and 666, Respondent is assessed a civil penalty of FIFTY-THOUSAND ($50,000) DOLLARS. Respondent shall, within ten (10) days of the service of a conformed copy of this Order, submit this penalty payment made out to "NYSDEC" to: Legal Affairs Region One, New York State Department of Environmental Conservation, Building # 40, SUNY Campus, Stony Brook, NY 11790-2356.
  2. To the extent restoration is not completed by June 1, 1999, pursuant to an Order on Consent (R1-6103-98-07) executed by and between the Department and the owner of the parcel made the subject of this enforcement action, Mr. Frank Esposito, Respondent is obligated to comply with the following restoration:

    Respondent shall re-vegetate as follows : Utilizing native vegetation - Juniperus virginiana (Red Cedar), Respondent shall plant thirty (30) trees in a row, said row to be located five (5') foot down-slope of the upland edge of the buffer zone and to run along the entire length of the buffer zone as flagged by DEC Staff. The trees shall be placed at a separation distance of no more than five (5') foot on center and said trees shall be a minimum of six (6') feet in height.

    Utilizing native vegetation - Acer saccharinum (Silver Maple), Respondent shall plant thirty (30) trees in three (3) equally spaced rows. The rows shall be approximately fifteen (15') feet apart and in an off-set grid fashion to cover the entire length of the buffer zone as flagged by DEC Staff. Within each of the rows, the trees shall be placed at a separation distance of no more than fifteen (15') feet on center and said trees shall be a minimum of eight (8') feet in height.

    All plantings must have a 100% survival rate after three (3) growing seasons. A growing season is defined as the period of time from growth of new leaves to leaf dropping.

  3. All communications between Respondent and Department Staff concerning this Order 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 Respondent, all agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

For the New York State Department
of Environmental Conservation

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

Dated: Albany, New York
February 4, 1999

TO: Rich K. Ely Tree Service, Inc.
c/o Rich K. Ely
P.O. Box 439
Moriches, New York 11955

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

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