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Rogers Island Resorts, LLC - Decision, October 18, 2000

Decision, October 18, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Alleged Violations of Article 17 of the Environmental Conservation Law ("ECL")
of the State of New York and Title 40 of the Code of Federal regulations by

Rogers Island Resorts, LLC
25 Piping Rock Road
Glen Head, New York,
with an office for the conduct of its business
in Warren County, New York,

Respondent

ORDER OF THE COMMISSIONER

DEC Case No.

R5-2256-98-06

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated December 24, 1998, an administrative enforcement hearing was held before Administrative Law Judge ("ALJ") Robert P. O'Connor. The Department of Environmental Conservation (the "Department") appeared by Christopher A. Lacombe, Esq., Region 5 Attorney in the Department's Ray Brook office. The Respondent did not appear at the hearing.
  2. Upon review of ALJ O'Connor's Hearing Report (copy attached) and the record in this proceeding, I concur with its Findings of Fact, Conclusions and Recommendations, subject to my comments below. The Report establishes that the Respondent, for failure to submit the proper documents to obtain coverage under a SPDES General Permit for Storm Water Discharges from Construction Activities in regard to its construction activities on Rogers Island, Town of Fort Edward, Washington County, New York, was in violation of ECL §17-0808 and 40 CFR 122.26(b)(14)(x).
  3. In determining the appropriate penalty for the committed violation, I have taken into account the circumstances of this case as established in the hearing record. The record establishes that the Respondent had the opportunity to settle this matter in May 1999 when it signed an Order on Consent, agreeing to pay a $500 civil penalty and to submit the required documentation for a SPDES General Permit for Storm Water Discharges from Construction Activities. Despite repeated requests from the Department Staff, the Respondent failed to return to the Department Staff the required documents and to pay the $500 civil penalty. In fact, neither Respondent nor a representative responded to the Staff's requests, thus exhibiting a distinct lack of cooperation in correcting its deficiencies.
  4. In view of all the foregoing, I therefore concur with ALJ O'Connor's penalty recommendation, as well as his recommendation that the Respondent must submit the required SPDES-related documents.

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

  1. Respondent Rogers Island Resorts, LLC is found to have violated ECL §17-0808 and 40 CFR 122.26(b)(14)(x) and is assessed a civil penalty in the amount of One Thousand Dollars ($1,000), which is to be due and paid in full to the Department within 30 days of service of this Order.
  2. Respondents Rogers Island Resorts, LLC is directed to cease the violation and to submit to the Department Staff, as a remedial action:
    1. A Storm Water Pollution Prevention Plan ("SWPPP") must be submitted for review to the Regional Water Engineer no less than 30 days before any further construction activities are commences at said site.
    2. The filing of a Notice of Intent, Termination and Transfer ("NOITT") for the discharge of storm water to the waters of the State from construction projects disturbing five (5) or more acres, before any further construction activities are commenced at said site.
  3. All communications between Respondents and the Department concerning this Order shall be made to the Regional Director, New York State Department of Environmental Conservation, Route 86 - P.O. Box 296, Ray Brook, New York 12977-0296.
  4. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, partners, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

/s/ By: John P. Cahill, Commissioner

Albany, New York
October 18, 2000

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

Bruce M. Jordan, Esq.
119 Bay Street
Glens Falls, New York 12801

Rogers Island Resorts, LLC
25 Piping Rock Road
Glen Head, New York 11545

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Alleged Violations of Article 17 of the Environmental Conservation Law ("ECL")
of the State of New York and Title 40 of the Code of Federal regulations by

Rogers Island Resorts, LLC
25 Piping Rock Road
Glen Head, New York,
with an office for the conduct of its business
in Warren County, New York,

REPORT OF THE ADMINISTRATIVE LAW JUDGE

DEC Case No.
R5-2256-98-06

Respondent.

Summary

In this Administrative Enforcement Hearing Report, Administrative Law Judge ("ALJ") Robert P. O'Connor finds that Respondent Rogers Island Resorts, LLC has violated Environmental Conservation Law ("ECL") Article 17 (Water Pollution Control), Title 8 (State Pollutant Discharge Elimination System "SPDES"), §17-0808 (Municipal and industrial stormwater discharges) and 40 CFR 122.26(b)(14)(x) by having commenced clearing and excavation activities (construction) on a greater than five (5) acre parcel of land at a site located in the Town of Fort Edward, Washington County, New York, prior to obtaining coverage under the SPDES General Permit for Storm Water Discharges from Construction Activities. This matter was tentatively settled by an Order on Consent entered into by Respondent on May 5, 1999, in which Respondent agreed to pay a civil penalty of $500, to submit a Storm Water Pollution Prevention Plan ("SWPPP") and to file a Notice of Intent, Termination and Transfer ("NOITT"). Respondent forwarded a facsimile (fax) copy of the Order on Consent dated May 7, 1999 to the Department, but failed to remit the $500 civil penalty or to return a signed original of the Order on Consent to the Department Staff, despite repeated attempts by the Department Staff to elicit a response from the Respondent. ALJ O'Connor recommends that the Respondent be directed to file with the Staff of the Department of Environmental Conservation ("DEC" or "Staff") the required SWPPP and NOITT and that the Respondent be assessed a civil penalty in the amount of $1,000, as requested by the Department Staff in the original Complaint in this matter.

Background

On May 27, 1998, the Department Staff inspected the site of construction activities being undertaken by Respondent at a site larger than five (5) acres located on Rogers Island, Town of Fort Edward, Washington County, New York. They observed soil being excavated from an apparent dredge spoils site south of the Railroad Line, and being trucked to the southern end of Rogers Island where it was being placed as fill. Prior to the inspection, the Department Staff checked its records to locate proof of a Notice of Intent ("NOI") having been filed by Respondent to comply with the SPDES General Permit for Storm Water Discharges from Construction Activities. The Department's records did not indicate that a NOI was submitted for the observed activity.

On December 24, 1998, the Department Staff issued a Notice of Hearing and Complaint to Respondent and referred the matter to the Department's Office of Hearings and Mediation Services to schedule an administrative enforcement hearing. On January 15, 1999, Respondent provided an Answer. On March 15, 1999, the Department Staff filed its Statement of Readiness for Adjudicatory Hearing, and on March 19, 1999, Administrative Law Judge Kevin J. Casutto scheduled the hearing to be held in the Department's Region 5 office in Ray Brook, New York on May 12, 1999. On May 7, 1999, the Department Staff advised ALJ Casutto that it had received a fax copy of the Order on Consent, and that the scheduled hearing would not be necessary. Accordingly, ALJ Casutto closed the case.

The Department Staff wrote the Respondent's attorney on June 17, 1999 and July 6, 1999 requesting the original signed Order on Consent and the $500 civil penalty to which the respondent had agreed. When neither the original Consent Order nor the $500 civil penalty were received, the Department Staff sent an Amended Statement of Readiness for Adjudicatory Hearing to the Office of Hearings and Mediation Services. At this time, ALJ Robert P. O'Connor was assigned to the case. The Department Staff again wrote to Respondent's attorney on August 25, 1999 and September 13, 1999 seeking the original signed Consent Order and the $500 civil penalty. ALJ O'Connor scheduled a hearing in the matter for November 16, 1999 in the Department's Region 5 office in Warrensburg, New York. The Staff again wrote to Repsondent's attorney on November 2, 1999 requesting the original signed Consent Order and the payment of the agreed upon $500 civil penalty.

The requested items were never provided to the Department Staff, and on November 16, 1999, ALJ O'Connor commenced the administrative enforcement hearing in this matter. No representative for the Respondent appeared at the hearing. The Department Staff was represented by Christopher A. Lacombe, Esq., Region 5 Attorney in the Department's Ray Brook office (Route 86 - P.O. Box 296, Ray Brook, New York 12977-0296).

Called as witnesses for the Department Staff were William R. Wasilauski, P.E., Region 5 Water Engineer; H. Gerry Beres, Environmental Engineer II and William E. Lupo, Environmental Engineer II, both in the Region 5 Water Division.

In all, 11 Exhibits were received in evidence.

Department Staff's Position

The Department Staff seeks a default judgment against the Respondent incorporating the terms of the Consent Order which Respondent had signed on May 7, 1999. Given the absence of the Respondent or any representative, the Department Staff requested that such default judgment be based upon the submission of the Notice of Hearing and Complaint, Statements of Readiness, correspondence and the fax copy of the Consent Order

Respondents' Position

The failure of Respondent to appear at the hearing renders it in default. Thus, Respondent has waived its right to a hearing.

FINDINGS OF FACT

  1. On December 24, 1998, the Department's Region 5 Staff cited Respondent for failure to file a Notice of Intent to comply with the SPDES General Permit for Storm Water Discharges from Construction Activities, as the result of the Staff's observation of Respondent's construction activities on a greater than five (5) acre site located on Rogers Island, Town of Fort Edward, Washington County, New York. The Staff's Complaint against Respondent sought a $1,000 civil penalty, and submission of a SWPPP and a NOI to the Department Staff so as to bring Respondent into compliance with ECL §17-0808 and 40 CFR 122.26(b)(14)(x).
  2. On May 5, 1999, Respondent signed an Order on Consent, agreeing to pay a $500 civil penalty and to submit the required SWPPP and NOITT. Respondent's attorney forwarded a facsimile (fax) copy of the signed Order on Consent to the Department Staff , with a statement that the signed original would be forwarded as soon as he received it from his client.
  3. Not having received the signed original Order on Consent or the $500 civil penalty, the Region 5 Attorney wrote to Respondent's attorney on June 17, 1999, July 6, 1999, August 25, 1999, September 13, 1999 and November 2, 1999, requesting that Respondent forward both the original signed Consent Order and the $500 civil penalty.
  4. As of the November 16, 1999 hearing date, Respondent had not submitted to the Department Staff either the original signed Consent Order or the $500 civil penalty. Neither the Respondent nor a representative appeared at the hearing, at which the Department Staff made a motion for a default judgment.

CONCLUSIONS

  1. By not filing a NOI to comply with the SPDES General Permit for Storm Water Discharges from Construction Activities related to its construction activities on a greater than five (5) acre site located on Rogers Island, Town of Fort Edward, Washington County, New York, Respondent was in violation of ECL §17-0808 and 40 CFR 122.26(b)(14)(x).
  2. Respondent could have settled this matter by submitting to the Department Staff an agreed upon $500 civil penalty and the required SWPPP and NOITT, pursuant to the Order on Consent which Respondent signed on May 7, 1999.
  3. By not providing the Department Staff with either the agreed upon $500 civil penalty or the required SWPPP and NOITT, Respondent continued to be in violation of ECL §17-0808 and 40 CFR 122.26(b)(14)(x).
  4. Respondent's failure to appear at the hearing on November 16, 1999, either in person or by a representative, constituted a default and waiver of Respondent's right to a hearing, pursuant to 6 NYCRR §621.15(a). Under these circumstances, it is appropriate for the Commissioner to issue an Order for a default judgment.

RECOMMENDATION

In consideration of the above Findings of Fact, Conclusions and Discussion factors, I recommend that the Commissioner issue an Order finding Respondent Rogers Island Resorts, LLC has violated ECL §17-0808 and 40 CFR 122.26(b)(14)(x), and directing the named Respondent: to submit, within 30 days of the issuance of the Commissioner's Order, a Storm Water Pollution Prevention Plan ("SWPPP") and to file a Notice of Intent, Termination and Transfer ("NOITT"), as were previously agreed to in the May 7, 1999 Order on Consent which Respondent signed.

I further recommend that the monetary penalty proposed by the Department Staff in their original December 24, 1998 Complaint be assessed Respondent for its violation of ECL §17-0808 and 40 CFR 122.26(b)(14)(x) that the Commissioner's Order require Respondent pay a civil penalty in the amount of $1,000.

/s/

Robert P. O'Connor
Administrative Law Judge
Office of Hearings and Mediation Services
New York State Department
of Environmental Conservation

Albany, New York

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