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Moore, Alfred - Order, July 2, 2003

Order, July 2, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 17 of the Environmental Conservation Law of the State of New York

-By-

ALFRED MOORE,
Respondent

ORDER

DEC File No. R4-2001-1003-121

WHEREAS:

  1. By Motion for Order Without Hearing dated July 17, 2002, New York State Department of Environmental Conservation (DEC) Region 4 Staff commenced an administrative enforcement proceeding against respondent.
  2. Respondent was personally served with the Motion for Order Without Hearing on July 22, 2002.
  3. Service of process was accomplished in accordance with 6 NYCRR 622.3(a)(3).
  4. The time for respondent to serve a response to the Motion for Order Without Hearing expired August 12, 2002. Respondent failed to serve a response to Department Staff's Motion within that time, or since.
  5. With respect to such failure to respond, DEC Staff made a Motion for Default Judgment, dated September 10, 2002.
  6. Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), respondent is found to be in default and has waived the right to a hearing in this enforcement proceeding. Accordingly, Department Staff's allegations against respondent in its Motion for Order Without Hearing are deemed to have been admitted by respondent.
  7. Respondent violated ECL 17-0701 by discharging sewage into the Claverack Creek without a permit from the toilets in the apartment building he owns, located at 2976 Salisbury Place, Town of Stockport, Columbia County, New York.
  8. Respondent's violation of ECL 17-0701 is a continuing violation and constitutes a separate violation for each day in which respondent fails to halt the discharge of sewage into Claverack Creek.

NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. Respondent is determined to have violated ECL 17-0701 and to have defaulted in answering the Motion for an Order Without Hearing and that he waived his right to a hearing.
  2. Respondent shall pay a civil penalty of $5,000 within 30 days of the service of this order on respondent. Such payment shall be made by cashiers check, certified check or money order payable to "NYSDEC" and delivered to Asst. Regional Attorney Ann Lapinski, DEC Region 4, 1150 North Westcott Road, Schenectady, New York 12306-2014.
  3. Within 14 days of the of the service of this order on respondent, respondent shall retain the services of a NYS licensed professional engineer to conduct an evaluation and develop a plan for addressing the discharge into Claverack Creek. Respondent shall provide the name of the engineer to the Department as soon as he/she is retained.
  4. Within 60 days of the service of this order on respondent, respondent shall submit to the Department the engineer's evaluation and plan for correcting the discharge including a SPDES application, if necessary. The engineer's plan shall include a schedule for implementation.
  5. All communications from respondent to the Department concerning this order, including the payment of the penalty, shall be made to: Asst. Regional Attorney Ann Lapinski, DEC Region 4, 1150 North Westcott Road, Schenectady, New York 12306-2014.
  6. The provisions, terms and conditions of this order shall bind respondent, his heirs 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: Erin M. Crotty,
Commissioner

Dated: July 2, 2003
Albany, New York

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 17 of
the Environmental Conservation Law of the State of New York

DEFAULT
SUMMARY
REPORT

-By-

ALFRED MOORE,
Respondent.

DEC File No.
R4-2001-1003-121

PROCEDURAL HISTORY

By Notice of Motion dated September 10, 2002, Staff of the Department of Environmental Conservation (DEC or Department) seeks a judgment by default against Respondent for an alleged violation of Section 17-0701 of the Environmental Conservation Law (ECL). DEC alleges that Respondent violated the aforementioned statutory provision by discharging sewage into the Claverack Creek, a water of the State, without a State Pollutant Discharge Elimination System (SPDES) having been granted by the Commissioner for such discharge. In support of its Motion for Default Judgment, DEC submitted an affirmation by Assistant Regional Attorney Ann Lapinski; a copy of a Motion for Order Without Hearing, dated July 17, 2002, alleging, by supporting affidavits reciting all the material facts and other documentary evidence, the aforementioned violation of ECL 17-0701 by the Respondent; an affidavit of personal service by Robert J. Zoppo, a Deputy Sheriff of Worcester County, Massachusetts, dated July 22, 2002, indicating personal service of the aforementioned Motion for Order Without Hearing on the Respondent on July 22, 2002; and a proposed Order. As relief, the Motion for Default Judgment seeks an Order, pursuant to 6 NYCRR 622.15, to be issued by the Commissioner in favor of the Department Staff against Respondent (1) declaring Respondent in default in the instant proceedings; (2) declaring Respondent in violation of ECL 17-0701; (3) ordering Respondent to pay a civil penalty in the amount of $5,000.00; (4) ordering Respondent, within 14 days of the effective date of the Order, to retain the services of a NYS licensed professional engineer to conduct an evaluation and develop a plan for addressing the discharge into the Claverack Creek, and to provide the name of the engineer to the Department as soon as he/she is retained; and (5) ordering Respondent, within 60 days of the effective date of the Order, to submit to the Department the engineer's evaluation and plan for correcting the discharge, including a SPDES application, if necessary. The engineer's plan shall include a schedule for implementation.

As of the date of the Motion for Default Judgment, the Respondent has failed to appear and serve a response to the Motion for Order Without Hearing, served upon him on July 22, 2002, although the time to do so expired on or about August 12, 2002.

DEFAULT PROCEDURES

Section 622.15, "Default Procedures" provides, in pertinent part, that: "(b) The motion for a default judgment .... must contain: (1) proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding; (2) proof of the respondent's failure to appear or failure to file a timely answer; and (3) a proposed order."

FINDINGS OF FACT

The following Findings of Fact are based upon the papers submitted, as identified above:

  1. Respondent, Alfred Moore, is the owner of certain real property located at 2976 Salisbury Place in the Town of Stockport, Columbia County, New York, and designated on the Real Property Tax Map of the Town of Stockport as Section 91.3, Block 02, Parcel 14. The property faces Atlantic Avenue and is improved by a residential apartment building.
  2. Claverack Creek flows through the Town of Stockport, Columbia County, and is a Class C water with fishing as its best usage, as defined at 6 NYCRR 701.8. Claverack Creek is a water of the State of New York.
  3. On November 2, 2000, Andrea Dzierwa, P.E., an Environmental Engineer 2 in the Division of Water of the Department's Region 4 office and responsible, inter alia, for matters relating to the discharge of wastewater and the operation of wastewater treatment facilities in Columbia County, and Mary Gates, a member of the Columbia County Health Department, observed what appeared to be sewage being discharged into the Claverack Creek from the road bank along Atlantic Avenue in the Town of Stockport, near the Respondent's apartment building. Upon closer inspection, the odor and visual characteristics of the discharge confirmed that it was, in fact, sewage.
  4. On November 16 and 24, 2000, Ms. Gates conducted dye testing at the Respondent's apartment building at the location stated above. On November 16, 2000, a 11:20 AM, Ms. Gates flushed green dye down the toilet in apartment number 1. At 1:30 PM that same day she observed green dye flowing from the embankment along Atlantic Avenue near the Respondent's premises and into the Claverack Creek. On November 24, 2000, at 10:00 AM, she flushed dye down the toilet in apartment number 3. At 11:55 AM, that same day, she observed dye to the right of where she had observed the green dye on November 16, 2000. Based upon these dye tests and her observations, Ms. Gates concluded that the discharges originated at the Respondent's apartment building. On December 14, 2000, she advised Andrea Dzierwa, P.E., of DEC of her findings and conclusions.
  5. Ms. Dzierwa personally checked relevant Department files and determined that no SPDES permit had been issued to the Respondent for the operation of a water discharge facility.
  6. Based upon Ms. Gates' findings and her own observations, Ms. Dzierwa concluded that the Respondent was discharging sewage into the Claverack Creek from the toilets in his apartment building without a SPDES permit.
  7. By letter April 5, 2001, Ms. Dzierwa advised the Respondent of the sewage discharges from his property, the results of the dye testing and the fact that the condition constituted a violation of ECL 17-0701, which prohibits the discharge of sewage to waters of the State without a SPDES permit. The letter also requested the Respondent to retain the services of a professional engineer to develop a plan for the elimination of the untreated discharge. This letter was sent certified mail and signed for by one Etta K. Shultis on April 14, 2001. The Department received no response from the Respondent to its letter of April 5, 2001. On June 8, 2001, Ms. Dzierwa sent the Respondent another letter similar to the one sent April 5, 2001, but this letter was returned as unclaimed.
  8. By letters dated October 25, 2001, and November 16, 2001, the Department legal staff offered the Respondent the opportunity to resolve the violation through an Order on Consent. The Respondent did not respond to either of these letters.
  9. ECL 17-0701(1)(a) provides, in pertinent part, that "It shall be unlawful for any person, until a written SPDES permit therefor has been granted by the commissioner, or by his designated representative, and unless such permit remains in full force and effect, to make or cause to make or use any outlet or point source for the discharge of sewage, industrial waste or other wastes or the effluent therefrom, into the waters of this state ...."
  10. The term "sewage" is defined at ECL 17-0105(4) and "means the water-carried human or animal wastes from residences, buildings, industrial establishments or other places, together with such ground water infiltration and surface water as may be present."
  11. Pursuant to the authority of 6 NYCRR 622.3(b)(1), by Motion for Order Without Hearing, dated July 17, 2002, the Department commenced an administrative proceeding against the Respondent asserting a violation of the applicable provisions of ECL 17-0701 and seeking an Order of the Commissioner finding the Respondent in such violation of the ECL, assessing a civil penalty against the Respondent in the amount of $5000, directing that the Respondent retain the services of a professional engineer to develop a plan for the abatement of the discharge, and setting milestone dates for the development and implementation of said plan.
  12. As evidenced by the affidavit of Robert J. Zoppo, Deputy Sheriff of Worcester, Massachusetts, the Respondent was personally served with the aforementioned Motion for Order Without Hearing on July 22, 2002.
  13. As explicitly stated in the Motion for Order Without Hearing served on the Respondent, and pursuant to the authority of 6 NYCRR 622.12(b) and (c), the Respondent had twenty days from his receipt of the motion to file a response thereto with the Chief Administrative Law Judge of the Department's Office of Hearings and Mediation Services, his failure to so respond constituting a default. The twentieth day ran on August 12, 2002.
  14. The Department Staff did not receive a response to the Motion within the aforementioned twenty day period nor has Department Staff received any request from the Respondent to serve a late response.
  15. ECL 17-0701 is part of Title 1 of Article 17 of the ECL. ECL 71-1929 provides that "A person who violates any of the provisions of, or who fails to perform any duty imposed by titles 1 through 11 inclusive and title 19 of article 17, or the rules, regulations, orders or determinations of the commissioner promulgated thereto or the terms of any permit issued thereunder, shall be liable to a penalty of not to exceed twenty-five thousand dollars per day for each violation, and, in addition thereto, such person may be enjoined from continuing such violation as hereinafter provided."
  16. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

CONCLUSION

The Motion for Default Judgment should be granted. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

/s/
Richard R. Wissler
Administrative Law Judge

To: Ann Lapinski, Esq.
NYS Department of Environmental Conservation
Region 4 Headquarters, Division of Legal Affairs
1150 North Westcott Road
Schenectady, New York 12306-2014

Alfred Moore
321 Pommogussett Road
Rutland, Massachusetts 01543-1432

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