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Livingston Landowners Gas & Energy Corporation and W. Austin Wadsworth - Ruling, March 11, 1999

Ruling, March 11, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 23 of the Environmental Conservation Law ("ECL") of the State of New York and of Part 550 et seq of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")

by

LIVINGSTON LANDOWNERS GAS & ENERGY CORPORATION and W. AUSTIN WADSWORTH

Respondents.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

DEC Case No. D8-0001-99-01

Background

This action began with the Department Staff's service of a Notice of Motion for an Order without Hearing dated December 23, 1998 upon Respondents Livingston Landowners Gas & Energy Corporation and W. Austin Wadsworth.

On January 21, 1999, I wrote to the Department's assigned attorney, Dominic R. Cordisco, Esq., Assistant Counsel in the Department's Division of Environmental Enforcement, seeking a Case No. for the action and soliciting proof of service before acting on the Motion.

On January 25, 1999, Dennis R. Dawson, Esq., representing the Respondents, wrote to Mr. Cordisco, seeking a hearing in this matter.

On January 27, 1999, Mr. Cordisco supplied the Case No. assigned to this matter and the documentation that service had been completed by Certified Mail via the U.S. Postal Service, with the Domestic Return Receipt signed by W. Austin Wadsworth on December 31, 1998. Mr. Cordisco further commented on the reasons that Mr. Dawson's request for a hearing was untimely and that the Respondents were in default.

Applicable Regulations

"The motion shall include a statement that a response must be filed with the Chief ALJ within twenty days after the receipt of the motion and that the failure to answer constitutes a default." [6 NYCRR 622.12(b)]

"Within twenty days of receipt of such motion, the respondent must file a response with the Chief ALJ which shall also include supporting affidavits and other available documentary evidence." [6 NYCRR 622.12(c)]

Ruling

In this instance, the Department Staff's Motion, as well as its transmittal letter, both dated December 23, 1998, contained explicit instructions that a response to the Motion was required within 20 days of receipt of the Motion, and that failure to respond would constitute a default. Thus, the Staff satisfied the requirements of 6 NYCRR §622.12(b).

Respondents did not provide an Answer within the 20 day period provided in 6 NYCRR §622.12(c), and are thus in default pursuant to the regulatory standards.

As an alternative, the Staff offered the opportunity for Respondents to request a hearing within the same 20 day period after receipt of the Motion. Respondents' attorney submitted a request for a hearing dated January 25, 1999, clearly outside the 20 day period prescribed in the applicable regulations. Further, the request for a hearing consisted of precisely a one sentence request with no further justification for such a request or any reason for the untimely nature of the request. The omission of any reasons for the untimeliness of the request or any circumstances which would mitigate against the default is of particular concern, given the representation by the Department Staff attorney that in his January 25, 1999 phone conversation with Respondents' attorney he specified that all such reasons should be included in any submission by Respondents seeking to avoid the default.

Based upon the foregoing, Respondents request for a hearing in this matter is denied. Under the terms of the applicable regulations, Respondents are in default. This matter is remanded to the Department Staff for the preparation of a proposed Order and submission of same to the undersigned for transmittal to the Commissioner, together with a Summary Report, pursuant to 6 NYCRR §622.15.

NEW YORK STATE DEPARTMENT OF : ENVIRONMENTAL CONSERVATION

/s/
ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE
Dated: Albany, New York
March 11, 1999

To: Dennis R. Dawson, Esq.
P.O. Box 69
129 Main Street
Geneseo, New York 14454

Livingston Landowners Gas & Energy Corporation
P.O. Box 5
Geneseo, New York 14454

W. Austin Wadsworth, President
Livingston Landowners Gas & Energy Corporation
P.O. Box 5
Geneseo, New York 14454

Dominic R. Cordisco, Esq.
Assistant Counsel
Division of Environmental Enforcement
New York State Department of Environmental Conservation
50 Wolf Road, Room 627 Albany, New York 12233-5500

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